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Non-Reportable

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NOs.783-784 of 2016   

Bharwad Navghanbhaj Jakshibhai & Ors. ……. Appellants

Versus

State of Gujarat            .……. Respondent

J U D G M E N T

Uday Umesh Lalit, J.

1. These  appeals  by  special  leave  at  the  instance  of  original  accused

Nos.2  to  14,  seek  to  challenge  the  common  judgment  and  order  dated

10.03.2016 passed by the High Court of Gujarat at Ahmedabad in Criminal

Appeal Nos.947/2011 and 969 of 2011.

2. Fourteen accused  including appellants  1  to  13  were  convicted  and

sentenced  by  Sessions  Judge,  Patan  in  Sessions  Case  No.27  of  2008  as

under:-

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1  to 14 u/s 147, 148 IPC  Fine  of  Rs.1000/-,  i/d  no separate imprisonment.

1 and 7 u/s 326 r/w 149 IPC R.I.  of  2  years  + Rs.35,000/-(towards compensation)

2 to 6 and 8 to 14

u/s 326 r/w 149 IPC R.I. of 2 years+ Rs.500/-, i/d 10 days.

1 to 14 u/s 324 and 149 IPC  Fine of Rs.2000/-, i/d 15 days  1 to 14 u/s 325 r/w 149 IPC  R.I. of 2 years  1 to 14 504,  506(2)  r/w 149

IPC No separate sentence is passed as  the  accused  are  already convicted  under  Section  326 IPC

3. All the convicted accused, being aggrieved preferred Criminal Appeal

No.947 of 2011 while the State preferred Criminal Appeal No.969 of 2011

seeking enhancement of the sentence imposed by the Trial Court. During the

pendency  of  the  appeal  original  accused  No.1  having  passed  away,  the

appeals stood abated qua him.

4. According to  the  prosecution  2  to  3  days  prior  to  10.10.2007,  the

tractor of one Ganeshbhai i.e. son of the complainant had dashed against the

motor cycle of one Bhikhabhai Ratnabhai.   Nursing a grudge on account

thereof,  on  10.10.2007  at  about  1230  hrs.  all  the  accused  forming  an

unlawful assembly went to the place of said Ganeshbhai with weapons like

tamancha,  dharia  and sticks.  Accused  No.1  was armed with a  tamancha,

accused No.7 was armed with dharia, and others were armed with sticks.

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Since  Ganeshbhai  did  not  open the  house,  the  accused  proceeded  to  the

house of Gelabhai. All the accused are stated to have attacked complainant

Gelabhai who was sleeping in the courtyard and caused serious injuries to

him.  

5. Gelabhai was taken to Civil Hospital, Mehsana where he remained an

indoor patient for more than 40 days and according to Dr. Setalwad who

treated him and was later examined as PW10 in the trial, said Gelabhai had

sustained following injuries:-

“1. CLW of about 5cm x 2cm x bone deep in size on the rt. Leg middle one third, anterior aspect compound fracture.

2.  Incised wound of about 3cm x 1cm x skin deep inside on the forearm  middle  one  third  anterior  aspect  oblique  in direction.

3.  Incised wound of about 4cm x 1cm x skin deep in size on the ant aspect of the middle one third of it leg, upper part.

4.  Incised wound of about 2cm x ½ cm X skin deep in size on the left leg below knee outer aspect.

5. Incised wound of about 1cm x ½ cm x skin deep in size on the upper 1/3rd left leg, anterior aspect.

6. Abrasion & contusion 10cm x 6cm in size, irregular in shape with D.T.S over the left forearm lower one third.

7. Incised wound of about 1cm x ½ cm x skin deep in size, on the Ft. arm lateral aspect.

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8. D.T.S and fracture deformity Rt. Arm, middle part on which Redish contusion of about 8cm x 2.5cm in size oblique in direction on the anterolateral aspect.

1. Fracture of shaft hummers (right) 2. Fracture on Left Tibia and Fibula 3. Fracture of Radius and Ulna.”

6. Statement of Gelabhai recorded by PW 13 Sub-Inspector Nathabhai

led to registration of Crime No.164 of 2007 against all the accused.  After

due  investigation,  charge-sheet  was  filed  against  all  the  accused  under

Sections 307, 325, 324, 504, 506(2), 147, 148, 148(9) of the IPC and under

Section 30(A) of the Arms Act.  During trial, the prosecution examined 15

witnesses  and  also  produced  documentary  evidence.  The  accused  denied

having  committed  any  offence  and  submitted  that  they  were  falsely

implicated in the case because of old rivalry. At the conclusion of the trial,

by  judgment  and  order  dated  08.06.2011  the  Trial  Court  acquitted  the

accused of charges under Section 307 IPC and Section 30(A) of the Arms

Act. Though there was no charge under Section 326 of the IPC, according to

the Trial Court the material on record was sufficient to prove the case of the

prosecution as against the accused under Section 326 read with Section 149

of the IPC. The Trial Court thus convicted and sentenced all the accused as

stated hereinabove.

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7. While dealing with the challenge by the appellants to the judgment

and order passed by the Trial Court, the High Court affirmed their conviction

and dismissed Criminal Appeal No.947 of 2011.  As regards the plea for

enhancement  of  sentence  by  the  State,  the  High  Court  found  that  the

sentence of  2 years  as  imposed by the Trial  Court  for  the offence  under

Section  326  of  the  IPC  was  not  commensurate  with  the  gravity  of  the

offence and as such while partly allowing the appeal preferred by the State,

it enhanced the sentence from 2 years to 5 years rigorous imprisonment for

the offence under Section 326 read with Section 149 of the IPC.

8. These appeals by appellants seek to challenge the correctness of the

decision of the High Court.  Mr. Huzefa Ahmadi, learned Senior Advocate

appearing in support of the appeals submitted inter alia that though there

were  8  injuries  on  the  body  of  the  injured,  14  persons  were  arrayed  as

accused suggesting clear case of over-implication, that the injured person

had  not  suffered  any  serious  injuries  and  that  the  High  Court  was  not

justified  in  enhancing  the  sentence.  It  was  further  submitted  that  at  this

length of time the ends of justice would be met if the actual sentence was

reduced while enhancing the amount of fine as imposed by the Courts below.

Ms.  Hemantika  Wahi,  learned  Advocate  appearing  for  the  State  and

Mr.  Purvish  Jitendra  Malkan,  learned  Advocate  appearing  for  the

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complainant supported the judgments of conviction by the Courts below but

were  agreeable  to  the  submission  that  the  actual  imprisonment  could  be

reduced while enhancing the amount of fine.

9. We have gone through the record and considered rival submissions.

As regards the findings of conviction by the Courts below, we do not find

anything on record warranting any different view.  The conclusion arrived at

by the High Court rightly sums up the matter in following words:

“So  far  as  the  submission  on  behalf  of  the  original accused that only 8 injuries were found and as per the case of prosecution 13 persons caused the injuries and, therefore, there is  exaggeration  and/or  over-implication  is  concerned,  it  is required  to  be  noted  that  all  the  accused  were  members  of unlawful assembly with a common object. All of them attacked the original complainant-injured eye witness at his place.  All of them were charged for the offence under Section 149 of the IPC also and they are in fact convicted with the aid of Section 149 of the IPC.  As per catena of decisions of the Hon’ble Supreme Court as well as this Court, to attract the provisions of section 149 of the IPC, once membership of an unlawful assembly is established, it is not incumbent on the prosecution to establish whether  any  specific  overt  act  has  been  assigned  to  any accused.   In  other  words,  mere  membership  of  the  unlawful assembly  is  sufficient  and  every  member  of  an  unlawful assembly is vicariously liable for the acts done by others either in  the  prosecution  of  the  common  object  of  the  unlawful assembly or such which the members of the unlawful assembly knew were likely to be committed.”

10. The  medical  evidence  on  record  through  the  testimony  of  PW10

Dr. Setalwad shows that  injuries  2  to  5  and 7 though inflicted  by sharp

cutting weapons were deep upto the skin and were classified as injuries of

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general  type.  Injury No.1 according to the prosecution was attributed to

accused No.1 who died during the pendency of the appeal.  Injuries 6 to 8

are bruises and swellings which could be attributed to sticks. Though the

injured Gelabhai was about 80 years of age on the date of incident, he did

not suffer any serious or permanent injury and is still alive.  At this length of

time when 9 years have gone by, in our considered view, ends of justice

would be met if the amount of compensation is increased while restoring the

sentence imposed by the Trial Court. The Trial Court had directed payment

of  compensation  to  the  tune  of  Rs.35,000/-  each  to  be  paid  by  original

accused Nos.1 and 7. The record indicates that amount of Rs. 70,000/- has

accordingly been deposited with the Trial Court.  

11. In the circumstances we deem it appropriate to maintain the order of

conviction  and  sentence  as  imposed  by  the  Trial  Court  subject  to  the

modification that  each of  the appellants  shall  pay Rs.55,000/-  by way of

compensation to the injured Gelabhai. Such compensation shall be deposited

by each of the appellant with the Trial Court within two months from today

and  the  deposited  amount  shall  be  made  over  to  the  complainant.  The

amount of Rs.70,000/- deposited by original accused Nos.1 and 7 shall also

be made over to the complainant. Original accused No.7 who had already

deposited Rs.35,000/- shall now deposit the balance sum of Rs.20,000/-.  In

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case  of  any  failure  to  deposit  the  compensation  as  directed  above,  the

appellants shall have to undergo sentence in default for a further period of

one year.

12. The appellants who were exempted from surrendering as a result of

the order passed by the learned Chamber Judge of this Court shall surrender

to custody within one month from the date of this order and shall undergo

the sentence as imposed by the Trial Court subject to the modification in

payment  of  compensation  as  stated  above.  In  case  of  any  default,  the

appellants shall undergo further sentence of one year.

13. The appeals are thus allowed and the order of sentence passed by the

High Court stands modified to the extent as stated above.   

..………………………..J. (Dipak Misra)

…………………………J. (Uday Umesh Lalit)

New Delhi August 29, 2016