BHARWAD BHIKHA NATHA Vs. STATE OF GUJARAT

JUDGEMENT

(1.) These are two appeals by special leave, one is by eight accused persons against the order of conviction and sentences passed, in respect of seven of them on charges under Ss. 323 and 447 of the Indian Penal Code and Sec. 162 (2) of the Gujarat Panchayats Act, and as regards one of them under S. 304 Part II of the Indian Penal Code; the other appeal is by the State of Gujarat against the acquittal of the seven accused in respect of the charge under Sec. 302/149 of the Indian Penal Code and the acquittal of the eighth accused of the charge under S. 302. The judgment of the High Court appealed from also disposed of two appeals from the Judgment of the Sessions Judge, Ahmedabad (Rural) at Narol, one by the accused against their conviction and the other by the State against their acquittal in respect of some of the charges. It appears that in village Lambha in Ahmedabad District a dispute had been going on between the agriculturists and the shepherds; the allegation against the shepherds was that they were damaging the standing crop in the fields by grazing their cattle therein. Because of this dispute between the two parties the village panchayat appointed three watchmen to guard the standing crop. Kalu Khan who died as a result of an occurrence which is the genesis of these appeals, was one of the watchmen; the two others were Hasanbhai, who is the complainant in the case, and Magan Boghabhai. The incident took place in the morning of December 14, 1971. Hasanbhai and Magan saw the first seven appellants before us and several others grazing their cattle in the field of one Bhulabhai Amichand (P. W. 15). These two watchmen informed Kalukhan of what they had seen and all the three started toward Bhulabhai Aminchand's field. On way they met P. W. 14 Khodabhai and appellant No. 8 Matambhai Punabhai who is said to be the chief of the shepherds. Appellant No. 8 was accused No. 13 in the trial Court; hereinafter we will refer to the appellants by their serial numbers as accused in the trial Court. Khodabhai requested accused No. 13 to accompany the watchmen to Bhulabahi's field and persuade the shepherds to call away the cattle.Accused No. 13 proceed to the field on a bicycle followed by the three watchmen on foot. Of the watchmen Kalukhan was armed with a stick and the other two had dharias. Reaching the field Kalukhan told the shepherds that if they did not take out their cattle from the field he would send them to the cattle pound and when the shepherds did not pay any heed to his warning, he proceeded to take the cattle to the cattle pound as he had said. It was then that the assault started. All the accused other than accused No. 13 beat up Kalukhan and Hasan with sticks which they carried. It is alleged that accused No. 13 snatched away the dharia in Magan's hand and hit Kalukhan thrice on the head with it. When the assault was going on, P. W. 5 Baldevbhai Ranchhodbhai came on the scene carrying a gun. As the situation was taking a serious turn P. W. 5 shouted to the accused to stop the quarrel and warned them that unless they stopped fighting he would fire. At this, accused Nos. 2. and 5 rushed towards him and P. W. 5 raised his gun to protect himself from the lathi blows aimed at him. The blows fell on the gun which dropped on the ground and broke into two. On being assaulted Kalukhan fell down. The accused then left the place.

(2.) The defence of some of the accused was that Bhulabhai Aminchand had permitted them to graze their cattle in his field. The trial Court relying on the evidence of P. W. 4 Hasanbhai, which the Sessions Judge found was corroborated by the evidence of P. W. 5 Baldevbhai and P. W. 14 Khodabhai, held accused Nos. 1, 2, 4, 5, 8, 11, 12 and 13 guilty of having committed offences punishable under Section 447 of the Indian Penal Code and S. 162 (2) of the Gujarat Panchayats Act and sentenced them to suffer rigorous imprisonment for three months for each of the offences. They were also convicted of offences punishable under Sec. 323 of the Indian Penal Code, accused Nos. 1 and 4 for voluntarily causing hurt to Kalukhan, and accused Nos. 2, 4, 5, 8, 11 and 12 for causing hurt to Hasan, and each of them was sentenced to undergo rigorous imprisonment for three months. Accused No. 13 was found guilty of having committed an offence punishable under S. 325 of the Indian Penal Code and was sentenced to undergo rigorous imprisonment for two year and a fine of Rs. 1000/-, in default to suffer rigorous imprisonment for further six months. He was also convicted under S. 447 of the Indian Penal Code. The substantive sentences in all the cases were ordered to run concurrently.

(3.) From the decision of the trial Court two appeals were preferred to the High Court, the accused appealing against their conviction and the State against the acquittal of accused No. 13 of the charge under Section 302 of the Indian Penal Code and the remaining accused of the charge under Section 302 read with S. 149. The High Court in agreement with the trial Court accepted the prosecution case that the crop on Bhulabhai's field was damaged by the accused by grazing their cattle therein on the date of the incident and that the defence that Bhulabhai had permitted them to graze cattle in his field was not true. The High Court also held that page No. W. 4 Hasan and P. W. 5 Baldevbhai were eye-witnesses to the incident. Relying on these two witnesses the High Court held that the Sessions Judge had taken a correct view of the situation in holding that the accused were the aggressors and affirmed the conviction and the sentences passed on accused Nos. 1 ,2 ,4, 5, 8, 11 and 12. So far as these accused are concerned, we find no reason to differ from the concurrent findings of fact of the two courts on which their conviction rests. Appeal No. 37 of 1975 is therefore dismissed.