CR.A/455/1989 of KHODAJI KARSANJI THAKORE & 3 Vs STATE OF GUJARAT on 6 November 1995

1. Whether Reporters of Local Papers may be allowed to see the judgment? Yes

2. To be referred to the Reporter or not? No

3. Whether their Lordships wish to see the fair copy of judgment? No

4. Whether this case involves a substantial question of law as to the interpretation of the Constitution of India, 1950 or any order made thereunder? No

5. Whether it is to be ci...

Civil Judge? No

----------------------------------------------------------------Shri A.J. Patel, Advocate, for the Appellants (in both matters)Shri S.T. Mehta, Addl. Public Prosecutor, for the Respondent(in both matters)---------------------------------------------------------------- CORAM: A.N. DIVECHA & H.R. SHELAT, JJ.

(Date: 9th/10th November 1995)

ORAL JUDGMENT (per Divecha, J.)

Both these appeals are directed against the judgment and order of conviction and sentence passed by the learnedAdditional Sessions Judge of Ahmedabad (Rural) on 29th July 1989

in Sessions Case No. 138 of 1988. Criminal Appeal No. 455 of1989 has been filed by original accused Nos. 2 to 5 in thetrial court as they have been convicted of the offencespunishable under sec. 302 of the Indian Penal Code, 1960 (theIPC for brief) and also under sec. 302 read with sections 147,148 and 149 of the IPC as well as under sec. 307 thereof asalso under sec. 307 read with sections 147, 148 and 149 thereofas well as under sec. 429 thereof. They have been sentenced torigorous imprisonment for life and fine of Rs. 2000 in defaultrigorous imprisonment for one year for the offence punishableunder sec. 302 of the IPC and rigorous imprisonment for 6months for each offence punishable under sec. 302 read withsections 147, 148 and 149 thereof and fine of Rs. 2000 for eachoffence in default simple imprisonment for one month andrigorous imprisonment for 10 years and fine of Rs. 4000 indefault simple imprisonment for 6 months for the offencepunishable under sec. 307 thereof and rigorous imprisonment for6 months and fine of Rs. 2000 in default simple imprisonmentfor one month for the offences punishable under sec. 307 readwith sections 147, 148 and 149 thereof and rigorous imprisonmentfor one year and fine of Rs. 1000 in default simpleimprisonment for 15 days for the offence punishable under sec.429 thereof. Criminal Appeal No. 527 of 1989 has beenpreferred by original accused No. 1 as he has been convictedand sentenced in the like manner. Common questions of law andfact are found arising in both these appeals and we havetherefore thought it fit to dispose of both these appeals bythis common judgment of ours.

2. The facts giving rise to these two appeals move in anarrow compass. It would be better to refer to the appellantsas they were appearing before the trial court as the accused inSessions Case No. 138 of 1988. The appellant of CriminalAppeal No. 527 of 1989 was accused No. 1 and the appellants ofCriminal Appeal No. 455 of 1989 were accused Nos. 2 to 5respectively in the sessions case in question. For the sake ofconvenience we shall refer to the appellants of both theseappeals as they were in the capacity of the accused in the trialcourt. Accused No. 2 is the father and the remaining accusedare his sons. They were cultivating one parcel of land situatedin the sim of village Gyaspur on the bank of the riverSabarmati. It is the case of the prosecution that they hadtheir shanty practically adjacent to the parcel of landcultivated by them. The father was a licensed gun-holder. Itis the case of the prosecution that the complainant in thecompany of two persons, named, Kalabhai Shanabhai and KanabhaiRamubhai (the deceased for convenience), had gone out from theirplace of ordinary abode at Shahwadi in search of some threemissing animals. It is the case of the prosecution that thecomplainant and his two associates and some other like cattleholders were stationed at Shahwadi and some three animals from the herd of cattles belonging to some other owner were foundmissing. They therefore went out in search of the missinganimals during early hours of 2nd August 1988. They saw someanimals in the parcel of land cultivated by the accused. Theyfound accused Nos. 2, 3, 4 and 5 armed with dhariyas beatingthe animals. They tried to intervene and requested the accusedto stop beating the animals. At that time accused No. 1 wasarmed with a gun in his hands. He thereupon fired three shotsat them resulting into the death of the deceased and injury toKalabhai Shanabhai (Prosecution witness No. 2 at Exh. 16).They therefore ran away therefrom for life. They informed thebrother of the victim of the assault about the incident. Thatresulted in collection of some 15 persons. All of them went tothe scene of offence. They found the deceased to be deadthereat. It appears that in the meantime the deputy sarpanch ofthe village had informed the police about some scuffle betweenThakores and Bharwads (that is, between the complainant and hisassociates and the accused). The police was also found at thescene of offence when the complainant in the company of some 14or 15 persons reached thereat. The complainant thereafter gavehis complaint to the police. The necessary formalities like theinquest panchnama, the scene of offence panchnama werecompleted. On completion of investigation, the charge-sheetagainst the accused was filed in the court of the Chief JudicialMagistrate of Ahmedabad (Rural) at Narol. They were chargedwith the offences punishable inter alia under sec. 302 of theIPC. Since the case was triable by the court of sessions, itwas committed to the Court of Sessions of Ahmedabad (Rural). Itcame to be registered as Sessions Case No. 138 of 1988. Thecase was assigned to the learned Additional Sessions Judge fortrial and disposal. The charge against the accused was framedon 5th May 1989. No accused pleaded guilty to the charge.Thereupon they were tried. After recording evidence andrecording the further statement of the accused under sec. 313of the Code of Criminal Procedure, 1973 (the Cr.P.C. forbrief), by his judgment and order passed on 29th July 1989 inthe aforesaid sessions case, the learned trial Judge convictedand sentenced all the accused as aforesaid. Being aggrievedthereby, accused Nos. 2 to 5 have preferred Criminal Appeal No.455 of 1989 and accused No. 1 has preferred Criminal Appeal No.527 of 1989.

3. It is difficult to agree with learned Advocate Shri A.J.Patel for the appellants in both the appeals that theprosecution has failed to establish its case beyond reasonabledoubt. The evidence on record clearly establishes the fact thatat the relevant time accused No. 1 was armed with a gun andaccused Nos. 2 to 5 with dhariyas. It has been clearlyestablished at trial that some three animals had entered theparcel of land cultivated by the accused and accused Nos. 2 to5 were beating them with their dhariyas. Such beating of animals by accused Nos. 2 to 5 with dhariyas resulted incertain injuries to the animals as testified by prosecutionwitness No. 11 at Exh. 47. The prosecution has also clearlyestablished the fact that the complainant in the company of thedeceased and Kalabhai Shanabhai had reached the land cultivatedby the accused at about 2.30 a.m. on 2nd August 1988. Theevidence on record unmistakably shows that at that time accusedNo.1 was armed with a gun. It is also established that gunshots were fired by accused No.1 resulting in the death of thedeceased and injury in leg to Kalabhai Shanabhai (prosecutionwitness No. 2 at Exh. 16). In view of the overwhelmingevidence on record, it is difficult to accept the submissionurged before us by learned Advocate Shri Patel for theappellants that the incident in question has not occurred in themanner as deposed to by the witnesses on behalf of theprosecution.

4. Learned Advocate Shri Patel for the appellants has thensubmitted that the charge against the accused based on sections147, 148 and 149 of the IPC has not been established and thereis no evidence worth the name on record to establish that chargeagainst them. He has further submitted that what was done bythe accused at the relevant time was by way of private defenceand the accused need not be held penally liable even if it isheld that the prosecution has established its version of theincident beyond reasonable doubt. It has also been urged onbehalf of the appellants that in any case the offence punishableunder sec. 429 of the Act is also not established and thebeating of animals by accused Nos. 2 to 5 was by way of privatedefence for protection of their property as those animals weredamaging the standing crop in the parcel of land cultivated bythem. As against this, learned Additional Public ProsecutorShri Mehta has submitted that the learned trial Judge hascarefully scanned and scrutinised the evidence on record and hascome to the conclusion that the accused are guilty of theoffences with which they were charged and no case is made out byor on behalf of the appellants to interfere with the just andlegal order of conviction and sentence passed by the learnedtrial Judge. It has been urged on behalf of the prosecutionthat the further statement under sec. 313 of the Cr.P.C. isabsolutely silent as to exercise of the right of private defenceby the accused or any of them. In that view of the matter, runsthe submission of learned Additional Public Prosecutor ShriMehta for the respondent, the right of private defence as urgedon behalf of the appellants is not at all worthy ofconsideration. Besides, according to him, sec. 105 of theEvidence Act, 1872 (the Act for brief) casts burden on theaccused with respect to exercise of the right of private defenceand such burden has not been discharged by the accused or any ofthem in any manner. In that view of the matter, it has beenurged on behalf of the prosecution that the impugned judgment and order of conviction and sentence calls for no interferenceby this court in these appeals in any manner.

10th November 1995

5. The ocular account of he incident is given byprosecution witnesses Nos. 1 and 2 at Exhs. 15 and 16.Neither of them has stated in clear and unequivocal terms thatall the accused were together in attacking them and theirdeceased companion when accused No.1 shot at them. In order toconstitute an unlawful assembly with some common object, itwould be necessary that members of the unlawful assembly shouldbe together for the purpose of some overt act. It transpiresfrom the evidence of the eye witnesses at Exhs. 15 and 16 thataccused Nos. 2 to 5 were engaged in beating animals. It is nottheir case that, while accused No. 1 was using his fire arm,they practically surrounded him to protect him against anylikely attack from the witnesses and their deceased companion.It is not their case either that they instigated accused No.1with a view to realising the common object of shooting thedeceased and the eye witnesses. Besides, if the prosecutioncase is accepted at its face value, all the five accused wereresiding together in the shanty near the parcel of landcultivated by them. As pointed out hereinabove, accused No.2 isthe father and the remaining accused are his sons. It wouldtherefore be but natural that the father and the sons were foundresiding together. That would also somewhat militate againstformation of the unlawful assembly in view of their naturaltogetherness. We are therefore of the opinion that theprosecution has failed to establish the case against the accusedfor the purposes of sections 147, 148 and 149 of the IPC.

6. So far as accused No.1 is concerned, the prosecution hasundoubtedly estbalished that he was armed with a gun at therelevant time and he shot at the deceased and his companions,that is, the eye witnesses at Exhs. 15 and 16. Learnedadvocate Shri Patel for the accused has submitted that the useof the fire arm by accused No.1 was in exercise of his right ofprivate defence. It cannot be disputed that some animals hadentered the field cultivated by the accused at the relevanttime. As transpiring from the panchnama of the scene of offenceat Exh. 20, the animals entering the field had somewhat damagedand ravaged the standing crop. With a view to driving thoseanimals out of the field, accused Nos. 2 to 5 beat the animalswith their dhariyas. It is the prosecution case that thedeceased and the witnesses at Exhs. 15 and 16 had gone near thescene of offence in search of the missing animals. At thatstage, it appears that there was heated exchange of wordsbetween the accused, more particularly accused No.1, and thedeceased and his companions. It is the case of the witnesses atExhs. 15 and 16 that they had no arms with them nor had the

deceased any with him. It is clearly borne out from theevidence that the deceased was possessed of a ringed stick with7 knots about 5 ft. in length at the relevant time. To thatextent, the version given by the witnesses at Exhs. 15 and 16that they were without any arms stands falsified. In fact, thenatural conduct of the witnesses at Exhs. 15 and 16 and theirdeceased companion would be that they would be armed with somesticks because they were in search of their missing animals andthey would drive those animals to their destination, if found,with the use of sticks if and when necessary. Even if it isbelieved that the witnesses at Exhs. 15 and 16 had no weaponswhatsoever with them including sticks, the fact remains that thedeceased was armed with a ringed stick with 7 knots and 5 ft.in length. Of course, there is nothing on record to show that ablow from the stick was sufficient to prove fatal to the victim.However, keeping in mind the nature of the stick as found andkeeping in mind the common knowledge that persons of thewitnesses at Exhs. 15 and 16 and their deceased companion wouldbe well built, the possibility that one single blow with thestick in question could prove fatal cannot altogether be ruledout.

7. Learned Additional Public Prosecutor Shri Mehta for the State has submitted that the plea of private defence has notbeen taken by or on behalf of the accused specifically at trial.Absence of a specific plea in that regard will not preclude theaccused from harping upon such plea if the material on recordwould permit the defence to take recourse to such plea. We arefortified in our view by the binding ruling of the Supreme Courtin the case of State of U.P. v. Ram Swarup and anotherreported in AIR 1994 SC 1570. In Para 9 thereof at page 1572 ithas been observed :

"Unlike in a civil case, it is open to a criminal court to find in favour of an accused on a plea not taken up by him, and by so doing the court does not invite the charge that it has made out a new case for the accused. The accused may not plead that he acted in self-defence and yet the court may find from the evidence of the witnesses examined by the prosecution and the circumstances of the case either that what would otherwise be an offence is not one because the accused has acted within the strict confines of his right of private defence or that the offence is mitigated because the right of private defence has been exceeded."

8. It may be noted that suggestion to the witnesses atExhs. 15 and 16 in their cross-examination is quite eloquent asto the exercise of private defence on the part of the accused,more particularly accused No. 1. Besides, accused No.2 has also given his complaint with respect to the incident. Thatgave rise to Sessions Case No. 139 of 1988. A copy of thecomplaint in that case is at Exh. 81 on the record of the case.This piece of evidence on record also goes to show and tosuggest that the accused were, more particularly accused No.1was, attempting to act for their private defence.

9. We agree with learned Additional Public Prosecutor ShriMehta that, since the other accused were armed with dhariyas, itwas not necessary for accused No.1 to have used the fire arm inhis hand. It is the case of accused No.1, as transpiring fromthe complaint at Exh. 81, that he wanted to scare the witnessesat Exhs. 15 and 16 and the deceased away from the scene ofoffence as he feared assault by them. Besides, as transpiringfrom the complaint at Exh. 81 on the record of the case, hefired one shot in air and he attempted two more shots to befired in air but the cartridges did not explode. Thereafter hefired another shot. The panchnama of the scene of offence atExh. 20 bears testimony to the fact of two unexplodedcartridges as two unexploded cartridges were found on the spot.That probabilises the version put up by and on behalf of theaccused in the complaint at Exh. 81 on the record of the case.

10. We are however in respectful agreement with learnedAdditional Public Prosecutor Shri Mehta for the State that theaccused, more particularly accused No. 1, exceeded their rightof private defence. Even at the cost of repetition, we mayreiterate that accused Nos. 2 to 5 were armed with dhariyas.It is everyone's common knowledge that a dhariya is a sharpcutting weapon. It is established by the prosecution at trialthat the witnesses at Exhs. 15 and 16 and their deceasedcompanion were the only persons having gone near the field ofthe accused at the relevant time in search of the missinganimals. The accused were five in number. With the help ofdhariyas in the hands of accused Nos. 2 to 5, they could haveeasily resisted any likely assault by the witnesses at Exhs.15and 16 and their deceased companion. There was no necessity orneed to use the fire arm on the part of accused No. 1 even ifhe wanted to scare away the witnesses at Exhs. 15 and 16 andtheir deceased companion. It is true that the accused had theirright of private defence qua their property and also withrespect to their person. Even at the cost of repetition, we mayreiterate that the animals were found to have entered the fieldand were found to have damaged and ravaged the standing crop tosome extent. It has also been established at trial that thedeceased was armed with a ringed stick with 7 knots and 5 feetin length. The apprehension of attack by the deceased and hiscompanions at the relevant time on the accused, moreparticularly accused No. 1, could not altogether be ruled out.However, resort to the use of the fire arm by accused No. 1 inself-defence was not at all justifiable in view of the fact that the other accused were armed with dhariyas and the weapons intheir hands were sufficient to repel any kind of assault orattack on the accused including accused No. 1. We aretherefore of the opinion that accused No.1 has exceeded hisright of private defence in use of the fire arm in his hands.In that view of the matter, accused No.1 can be said to havecommitted the crime of culpable homicide not amounting tomurder.

11. So far as the offence punishable under sec. 429 of theIPC is concerned, accused No.1 was not a party thereto. AccusedNos. 2 to 5 were found beating the animals with their dhariyas.As transpiring from the medical evidence in the form of the oraltestimony of prosecution witnesses No. 11 at Exh.. 47, thethree animals sustained injuries with dhariyas used by accusedNos. 2 to 5. The injuries may not be serious but nonethelessthey were of considerable magnitude. We however agree withlearned Advocate Shri Patel for the accused that the act ofinjuring the animals with their dhariyas by accused Nos. 2 to 5would not constitute the offence punishable under sec. 429 ofthe IPC. We however agree with learned Additional PublicProsecutor Shri Mehta for the State that in any case it wouldamount to an attempt to commit the said offence. It wouldtherefore be punishable under sec. 511 read with sec. 429 ofthe IPC.

12. It transpires from the evidence of the witnesses atExhs. 15 and 16 that both of them were injured by the shotsfired by accused No.1 with his gun. We have already indicatedearlier that accused No.1 has exceeded his right of privatedefence. In that view of the matter, there is no hesitation incoming to the conclusion that accused No. 1 can be said to beguilty of attempt to commit culpable homicide qua the aforesaidtwo witnesses. He can therefore be said to have incurred penalliability under sec. 308 of the IPC.

13. In view of our aforesaid discussion, we are of theopinion that the prosecution has not proved the case against theaccused beyond reasonable doubt qua the offences punishableunder sec. 302 and sec. 307 read with sections 147, 148 and149 of the IPC and also under sec. 429 thereof beyond anyreasonable doubt. The conviction and the sentence of theaccused thereunder cannot therefore be sustained in law. We areof the opinion that the prosecution can be said to haveestablished beyond reasonable doubt that accused No.1 was guiltyof the offence punishable under sec. 304 (part 2) of the IPCand the other accused of the offence punishable under sec. 511read with sec. 429 thereof.

14. That would bring us to the question of sentence.Accused No.1 has admittedly been in custody since 2nd August

1988. He has thus remained in custody for little less than 8years. The punishment to be awarded to him under sec. 304(part 2) would be 10 years at the most. We are therefore of theopinion that he should be punished with the imprisonment alreadyundergone. So far as accused Nos. 2 to 5 are concerned, we areinformed that they were taken in custody and kept as undertrialprisoners from 2nd August 1988 till they were released on bailby the order of the competent court on 1st December 1988. Theytherefore remained in police custody as undertrial prisoners fornearly one month. We are also informed that they were takeninto custody soon after the judgment was pronounced by thelearned trial Judge on 29th July 1989. They have thus remainedin jail for a further period of nearly 20 days as convicts asthey were released on bail by the order of this Court passed on17th August 1989. Thus they have suffered imprisonment fornearly 50 days. We are told that accused Nos. 2 to 5 have beenon bail since 17th August 1989 and they have settled in life.We are told by learned Advocate Shri Patel for the accused thatno criminal activity thereafter has been alleged against them orany of them. Nearly 6 years have rolled by since they have beenreleased on bail. It would therefore be in the fitness ofthings not to send them to jail again and the sentence to beawarded to them for the offence punishable under sec. 511 readwith sec. 429 of the IPC should be the imprisonment alreadyundergone by them in all for nearly 50 days.

15. In the result, these appeals are partly accepted. Theimpugned judgment and order of conviction and sentence qua sec.302 and sec.307 and also qua sec. 302 and sec. 307 read withsec. 147, 148 and 149 of the IPC with respect to all theaccused is set aside. Accused No. 1 is convicted of theoffence punishable under sec. 304 (part 2) and sec. 308thereof. He is sentenced to the imprisonment undergone so farfor each of the offences and this sentence is ordered to runconcurrently. Accused Nos. 2 to 5 are held guilty of theoffence punishable under sec. 511 read with sec. 429 of theIPC and are punished with the imprisonment already undergone byeach of them and fine of Rs. 1000 each in default simpleimprisonment for 15 days. Accused No. 1 is ordered to be setat liberty if no longer required in any other case. The bailbonds furnished by the remaining accused are ordered to becancelled.

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