LILABHAI KHODABHAI BHARWAD Vs. STATE OF GUJARAT

JUDGEMENT

(1.) THIS appeal is filed under Section 374[2] read with Section 386 of the Code of criminal Procedure, challenging the legality and validity of the order of conviction and sentence dated 7th August, 1993 passed by the learned Additional Sessions Judge, ahmadabad[rural] on conclusion of the trial of Sessions Case No. 101/88. Total 9 accused persons were tried for charge of offences punishable under Sections 143, 147, 148. 149, 34, 323, 324, 332, 353, 506[2], 426, 504 and 307 of I. P. C. and also under Section 135[1] of the Bombay Police act. Pending the trial, the original accused no. 2 Bhura Bhikha died his natural death and therefore, the trial against the said accused was treated as abated vide order dated 26th June, 1992 [appellant no. 2 Jivan bhoja Bharwad died pending the appeal, so the appeal by the accused Jivan Bhoja shall have to be treated abated]. Learned trial judge, by above judgment and order decided to acquit the accused nos. 6 to 9 from all charges levelled against them. The appellants, that is, the original accused nos. 1,3, 4 and 5 are the convicts, who have been held guilty for all the charges levelled against them except for the charge of offence punishable under Section 504 of i. P. C. and Section 135[1] of the Bombay police Act. All the accused persons have been sentenced to undergo rigorous imprisonment for 3 years for the charge of offences punishable under Sections 143, 147, 148 and 149 read with Section 307 of i. P. C. , and to pay fine of Rs. 500/- each. In default of payment of fine, they have been sentenced to undergo simple imprisonment for 3 months. For the charge of offences punishable under Sections 143, 147, 148 read with Section 149 of I. P. C. , they have been sentenced to undergo rigorous imprisonment for 6 months and to pay fine of Rs. 800/- each and in default of payment of fine, they have been sentenced to simple imprisonment for 15 days. For the charge of offences punishable under Sections 147, 148, 149 read with Section 332 of I. P. C. , they have also been sentenced to undergo rigorous imprisonment for 1 year and to pay fine of Rs. 200/- each and in default of payment of fine, they have been sentenced to undergo simple imprisonment for 15 days. For the charge of offences punishable under Section 149 of I. P. C. , the above accused have been sentenced to undergo rigorous imprisonment for 3 months and to pay fine of Rs. 100/- each and in default of payment of fine, they have been sentenced to simple imprisonment for 15 days. For the charge of offences punishable under sections 147, 148, 149 read with Section 323 of I. P. C. , the above accused have been sentenced to undergo rigorous imprisonment for 3 months and to pay fine of Rs. 100/- each and in default of payment of fine, they have been sentenced to undergo simple imprisonment for 15 days. For the charge of offences punishable under sections 147, 148 and 149 read with section 324 of I. P. C. , the above accused have been sentenced to undergo rigorous imprisonment for 6 months and to pay fine of Rs. 100/- each and in default of payment of fine, they have been sentenced to simple imprisonment of 15 days. For the charge of offences punishable under Sections 147 and 149 read with Section 506[2] of I. P. C. they have also been sentenced to undergo rigorous imprisonment for 6 months and to pay fine of Rs. 100/- each and in default of payment of fine, they have been sentenced to undergo simple imprisonment for 15 days. Similarly, they have been sentenced to undergo rigorous imprisonment for 3 months and to pay fine of Rs. 100/- each and in default of payment of fine, they have been sentenced to undergo simple imprisonment for 15 days for the charge of offences punishable under Sections, 147, 148 and 149 read with Section 426 of I. P. C. The learned trial Judge has not awarded separate sentence for charge of offence punishable under Section 353 of I. P. C. All the sentences are ordered to run concurrently with benefit under Section 428, that is, of set off.

(2.) LEGALITY and validity of the order of conviction and sentence has been assailed on various grounds mentioned in the memo of the appeal. I have heard Mr. Y. F. Mehta, learned counsel for the appellants and Mr. P. D. Bhate, learned APP in detail. Both of them have taken me through the relevant part of the judgment under challenge as well as oral and documentary evidence led during the course of the trial including the opinion evidence of the doctors examined by the prosecution.

(3.) AT the outset, Mr. Mehta, learned counsel for the appellants informed the court that in the incident in question, S. R. P. Constable Shivramsinh Malkansinh had opened fire from his 303 service rifle, as a result of which, seven persons from the side of the accused had sustained injuries. Two persons, namely, Bharwad Chaku Bechar and Bharwad Ghela Bechar [two real brothers] had died on the spot. The accused no. 2 Jivan Bhojabhai had also sustained injuries along with original accused no. 6, that is, acquitted accused Karman Khoda bharwad. Similarly, original accused no. 7 laliben Matambhai, Maniben wife of appellant no. 3 Rukhad Khoda [original accused no. 4], original accused no. 9 -Rangiben daughter of Becharbhai Karman and one minor boy, namely, Satish aged about 2 years son of Jivan Bhoja - accused no. 2, had also received injuries in firing. However, it would be beneficial firstly to state the basic case that was placed by the prosecution against the persons who came to be charged.