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Judgment
Z.K. Saiyed, J.—The present Appellant has preferred this Appeal u/s 374 of the Code of Criminal Procedure, against the judgment and
order of conviction and sentence dated 1.5.2000 passed by the learned Sessions Judge, Bharuch in Sessions Case No. 43 of 1992, whereby the
learned Sessions Judge has convicted the Appellant for the offences punishable u/s 143 of the Indian Penal Code and the learned trial Judge was
pleased to sentence the Appellant to undergo R.I. for two and half month and to pay a fine of Rs. 100/each, in default, to undergo further R.I. for
four months.
The brief facts of the prosecution case is as under :
The allegations levelled against the accused are that on 24.11.1989, the present Appellant along with other accused tried to cause disturbance in
election of Lok Sabha Seat at village Kavi with a view to see that the election did not go peacefully and committed public tranquility and in the said
incident, two persons namely Amarsing Bhupatbhai and Vinodchandra were injured in an attack by the mob and one Isha Hasan Ghenghen was
killed due to firing by the complainant for which other complaint was lodged making the present complainant accused in the said cross complaint.
Therefore, the complaint was registered against the Appellant along with other accused persons for the offence punishable under Sections 307,
171F, 427, 436, 353, 355 of the Indian Penal Code and Section 135 of the Bombay Police Act.
Thereafter, statements of the witnesses were recorded, panchnama was drawn and accused was arrested. The charge-sheet was filed and
Sessions Case No. 43 of 1992 was registered and tried before the Sessions Court.
Thereafter, the charge was framed against the Appellant. The Appellant - accused has pleaded not guilty and claimed to be tried.
To prove the case against the Appellant, the prosecution has produced documentary evidence and also examined in all 33 witnesses before the
trial Court.
Thereafter, after examining the witnesses, further statement of the Appellant - accused u/s 313 of the Code of Criminal Procedure was recorded
in which the Appellant - accused has denied the case of the prosecution.
After considering the oral as well as documentary evidence and after hearing the parties, learned Sessions Judge, Bharuch vide judgment and
order dated 1.5.2000 held the Appellant - accused guilty to the charge levelled against him u/s 143 of the Indian Penal Code as stated above.
Feeling aggrieved and dissatisfied with the impugned judgment and order of conviction and sentence passed by the learned Sessions Judge,
Bharuch, the present Appellant has preferred this appeal.
Learned advocate Mr. Hardik Jani appearing on behalf of the Appellant submitted that there were several contradictions between the
documentary evidence produced by the prosecution. He submitted that the trial Court has committed an error holding that the prosecution has
proved beyond reasonable doubt that the present Appellant had committed an offence u/s 143 of the Indian Penal Code. There was discrepancy
in the deposition of the complainant and other witnesses wherein the complainant deposed that there was mob of 1500 people have indulged in
causing the said disturbance whereas prosecution witness No. 3 stated there was a mob of 50 to 60 persons and P.W. No. 28 stated that there
was a mob of thousands of persons. The P.W. No. 4 had deposed that there was 200 to 300 persons who had gathered in the mob and that fact
has not been considered by the learned trial Judge. The complainant lodged the complaint with an ulterior motive against the accused. Learned trial
Judge wrongly placed reliance on evidence of P.W. No. 4 and the prosecution story was not supported by their own witnesses about the weapons
were recovered from the accused in presence of these two witnesses like P.W. No. 12 and 22, who were shown as panchas of Panchnama.
Learned trial Judge has committed an error in placing reliance on the evidence of various witnesses who belonging to the same department to
which the present complainant belonged and against whom there was already cross case lodged fro killing the I.H.G,. belonging to Muslim
community in firing.
Learned advocate Mr. Hardik Jani submitted that for the offence u/s 143 of the Indian Penal Code, the learned trial Judge convicted the
Appellant for a period of R.I. for two years and six months and fine of Rs. 100/-, in default, further R.I. for four weeks. He has read contents of
Section 141 of the Indian Penal Code and submitted that when the object of unlawful assembly is not established then the member of unlawful
assembly cannot be convicted for the offence punishable u/s 143 of the Indian Penal Code. He has read the evidence of (1) P.W. No. 2 -
Dahyabhai Haribhai P.W. No. 2 at Exhibit 152, (2) P.W. No. 3 - Arvindbhai Madhavbhai at Exhibit 153, (3) P.W. No. 5 - Melsangbhai Kalidas
at Exhibit 158 (4) P.W. No. 9 - Chimanbhai Gordhanbhai at Exhibit 166 (5) P.W. No. 28 - Rajnikant Jethalal at Exhibit 211 and (6) P.W. No.
31 - Shankarbhai Nathabhai and submitted that the said witnesses were present at the place of the offence but they have not narrated about the
role of the accused and they have also not explained the overt act on the part of the accused. He submitted that simply presence of the person
cannot be said to have a member of unlawful assembly and main ingredients of Section 143 of the Indian Penal Code is not established before the
learned trial Judge.
Learned advocate Mr. Jani has relied upon the decision rendered by the Hon''ble Supreme Court in the case of Masalti v. The State of Uttar
Pradesh reported in AIR 1965 Supreme Court 202 and submitted that simply presence of the member in an assembly does not make a person, a
member of an unlawful assembly, but the overt act is required to be proved beyond reasonable doubt. Therefore, this Appeal may kindly be
allowed by quashing and setting aside the judgment and order passed by the learned trial Court.
The learned APP Mr. K.P. Raval for the State strongly opposed the submissions made by the learned advocate for the Appellant. It was
contended by learned APP that the judgment and order of the Sessions Court is just and proper and as per the provisions of law; the Sessions
Court has properly considered the evidence led by the prosecution and looking to the provisions of law itself it is established that the prosecution
has proved the whole ingredients of the evidence against the present Appellant. Learned APP has also taken this Court through the oral as well as
the entire documentary evidence. He further submitted that the evidence which were produced before the learned trial Court, were not denied by
any means as prima facie, the involvement of the Appellant - accused is proved and after considering the deposition of the witnesses, the judgment
and order of conviction passed by the learned trial Judge. and there is no reason to disbelieve the case of the prosecution. He submitted that the
appeal may not be allowed and confirmed the judgment and order passed by the learned trial Court.
I have perused the judgment and order and reasons given by the learned trial Judge also. I have perused the evidence of the witnesses, who
were examined before the trial Court. Learned trial Judge after appreciating the evidence on record, order of conviction passed, but the learned
Judge observed in para 43 that :
Reading the oral evidence as a whole, the finding of guilt for offence u/s 143 i.e. formation of unlawful assembly for illegal purpose is possible
to record against A1, A11, A22, A23 and A2, particularly the evidence of PW 2, 3, 26 and 28 read with PW 5, 9, 11, 30 and 31. As observed
hereinabove, possession of weapon by any of the accused is not proved by the prosecution. The evidence in this regard is unreliable. Similarly,
there is no case against almost all rest of the accused.
From the perusal of the said para, it is clearly transpired that possession of weapon by the Appellant is not proved by the prosecution and
similarly, there is no case against the Appellant for the offence u/s 143 of the Indian Penal Code. The object of the assembly is required to be
proved, therefore, mere presence of the person as a member of the assembly cannot be said as a member of any unlawful assembly unless an overt
act is proved against a person who is alleged to be member of such an unlawful assembly. I have also perused the decision of the Hon''ble
Supreme Court rendered in case Masalti v. State of Uttar Pradesh (Supra). Therefore, I am of the opinion that there was no object on the part of
the Appellant as a member of unlawful assembly, was proved against the learned trial Judge and learned trial Judge without appreciating evidence
in proper manner, convicted the Appellant for the offence punishable u/s 143 of the Indian Penal Code. Therefore, I am not in agreement with the
reasons assigned by the learned trial Judge and the judgment and order passed by the learned trial Judge is required to be quashed and set aside.
In view of the above, the Appeal is allowed. The judgment and order dated 1.5.2000 passed by the learned Sessions Judge, Bharuch, in
Sessions Case No. 43 of 1992, is hereby quashed and set aside. Bail bonds shall stands cancelled. R & P to be sent back to the trial Court,
forthwith.