BHARATBHAI MANJIBHAI PATNI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) THESE two appeals arise out of a judgment and order rendered by the City Sessions Court, Ahmedabad in Sessions Case No. 1 of 2001 on 28/9/2001, whereby the appellants came to be convicted for the offences punishable under Sections 147, 148, 504, 294 [b], 302 read with Section 149 of the Indian Penal Code [IPC] besides Section 135 of the Bombay Police Act. Criminal Appeal No. 846 of 2001 is preferred by the original accused No. 3 and Criminal Appeal No. 837 of 2001 is preferred by the original accused Nos. 1, 2 and 4 to 6 in the said Sessions Case. For sake of convenience, the appellants in these two appeals are referred to as 'accused' with their respective numbers.

(2.) THE incident occurred in the evening of 6th May, 2000 in respect of alleged eve -teasing by the accused persons while standing near a Pani Puri cart when they were rebuked and the cart owner was asked not to stand there. Next day i.e., on 7th May, 2000 at about 5.30 p.m., when the cart owner came to the place for business, he was asked not to do so. He, therefore, left the place and went to one of the accused persons for help leaving behind the cart. Thereafter, it appears that Raju was called for compromise and he went out. But after going out, he felt that he may be attacked and, therefore, escaped therefrom.

(3.) LEARNED advocate Mr. AD Shah submitted that if the evidence on the whole is considered, it is clear that accused No. 1, 2 and 4 to 6 are alleged to have given only kick and fist blows for which there is no medical evidence. He submitted that all the accused persons have come from different directions and there is no evidence to indicate that they had formed an unlawful assembly and had come to the place in furtherance of their common object or for fulfillment of the common object. Mr. Shah submitted that presence of victim Bhagaji along with one Umesh Pakaji at the spot was incidental or coincidental. It was not that there is any previous planning. Nobody could have anticipated failure of electricity and coming out of the deceased with Umesh Pakaji outside the temple on the Ota where the incident has occurred. Therefore, there is not a case of the prosecution about formation of unlawful assembly and the accused persons acting in furtherance of common object may not be accepted.