Parmar Rajendrasinh Bhikhu Ji vs State Of Gujarat

Harsha Devani, J

1 . By this application under section 389 of the Criminal Procedure Code, 1973 the applicants - convicts seek suspension of the execution of the sentence awarded by the learned Sessions Judge, Mahesana vide judgment and order dated 18.06.2019 passed in Sessions Case No. 131 of 2016.

2 . M r. Yogesh Lakhani, Senior Advocate, learned counsel with Mr. Malav Mulani, learned advocate for the applicants submitted that in this case, the genesis of the incident is not clear; this is a case of free fight wherein, the members of both the sides have received injuries and the prosecution has failed to explain grievous injuries caused to the accused persons.

2.1. The learned counsel submitted that in this case, there were cross cases and seven persons have been convicted on both the sides. Inviting the attention of the court to the record of the case and more particularly, the medical evidence, it was submitted that the deceased had sustained in all two injuries, one head injury, which is serious in nature and the second injury in the nature of a contusion over the chest. It was submitted that except the statement of the complainant, the statements of other witnesses were recorded after seven days and that it is a case of over implication of several persons to see that more persons are made liable.

2.2. It was submitted that the Investigating Officer has admitted that the place of offence is common in both the cross cases. It was urged that the witnesses have not made any attempt to explain any injury on the accused. The attention of the court was invited to the medical evidence to point out that injuries have been sustained by the members of both the sides. The attention of the court was also invited to the findings recorded by the trial court to submit that the trial court has found that this is a case of free fight and it has not been established as to who was the aggressor. It was submitted that it is the prosecution case that the incident had started with the breaking of light bulb by a cricket ball. However, breaking of a bulb is not proved as in the scene of panchnama offence, there is nothing to indicate that any bulb was broken. It was submitted that in this case when the genesis of the incident has not been established and it is a case of a free fight and both the sides have sustained injuries, section 149 of the Indian Penal Code would not be applicable. Referring to the involvement of the present applicants, it was submitted that the applicants No. 1 and 2 are not alleged to have given any blow to the deceased. The applicant No. 1 is alleged to have given stick blow to Naranbhai Jakshibhai who has received simple injury. The applicant No. 2 is alleged to have given pipe blow to Dineshbhai Kalubhai and Kanjibhai Mafabhai, who have sustained simple injuries, whereas, he himself sustained grievous injuries in the incident. It was submitted that insofar as accused No . 4 to 7 namely applicants No. 3 to 6 herein are concerned, there are general allegations regarding their holding sticks and pipes.

2.3. Reliance was placed upon a decision of the Supreme Court in the case of Abdul Hamid and Others v. State of U.P., (1991) 1 SCC 339, wherein, the court had observed that, as to genesis of the occurrence, there was no finding. The court held that it was a case of free fight. The accused could not have been convicted for the offence punishable under section 304 Part II read with section 149 as it is not possible to hold that they were members of unlawful assembly. Reliance was also placed upon a decision of the Supreme Court in the case of Raghubir Singh v. State of Rajasthan and Others, (2011) 12 SCC 235, wherein, the court placed reliance upon its earlier decision in the case of Gajanand v. State of U.P., AIR 1954 SC 695, wherein the court had held that to bring the matter within a free fight both sides have to come armed and prepared to do battle with the result that each accused would be liable for his individual act. It was submitted that in this case, the trial court having found that it is a case of a free fight, each accused should have been made liable for his individual act and could not be convicted under section 302 of the Indian Penal Code by invoking section 149 thereof. Reliance is also placed upon the decision in the case of Puran v. State of Rajasthan, (1976) 1 SCC 28, wherein, the court held that the case was of sudden mutual fight between the parties and therefore, there could be no question of invoking the aid of section 149 for the purpose of imposing constructive criminal liability on the appellant therein and that the appellant could be convicted only for the injuries caused by him by his individual acts. Reference was made to the decision of the Supreme Court in the case of Lalji and Others v. The State of U.P.,: (1974) 3 SCC 295, wherein, though all the accused had caused injuries to the victim, the court convicted the person who had given the spear blow in the abdomen of the victim for the offence under section 304 Part I of the Indian Penal Code and awarded lighter sentence to the appellant therein who had caused simple hurt with lathis. It was submitted that in this case, the deceased had sustained only one grievous injury and simple injury and the grievous injuries are attributed to accused No. 1 - Parmar Pravinsinh Chanduji, who is not an applicant before the court and insofar as other accused are concerned, they are alleged to have inflicted blow with sticks and pipes. However, the medical evidence does not show any corresponding injury having been sustained by the deceased except for one contusion on the chest.

2.4. It was submitted that in the present case, this being a case of free fight, the individual role of each accused has to be seen and they cannot be held liable by invoking section 149 of the Indian Penal Code. It is submitted that the deceased had died after seven days whereafter, the statements of other witnesses were recorded. It was further pointed out that all the accused were on bail during the course of trial. It was, accordingly, urged that if the individual role is seen, the conviction would be much less and hence, the applicants have a strong prima facie case in their favour and hence, the execution of order of sentence imposed by the trial court be suspended and the applicants be released on bail.

On the other hand, Ms. C.M. Shah, learned Additional Public Prosecutor invited the attention of the court to the first information report as well as the testimonies of the witnesses to submit that the witnesses have consistently deposed that all the applicants herein had inflicted stick and pipe blows on the deceased. It was submitted that the trial court has found that the accused had formed an unlawful assembly and has thought it fit to convict them under section 302 read with section 149 of the Indian Penal Code. It was submitted that from the evidence on record, it is evident that the applicants - accused were the aggressors in the offence and that, this is not a case of a free fight and that, the accused had formed the unlawful assembly. It was urged that having regard to the facts and circumstances of the case, no case is made out for exercise of discretion in favour of the applicant and the application, being devoid of any merit, deserves to be dismissed.

Mr. J.M. Panchal, learned counsel appearing for the original complainant submitted that this is a clear case of unlawful assembly having been formed and hence, the trial court has rightly convicted the applicants herein for the offence punishable under section 302 read with section 149 of the Indian Penal Code.

4.1. It was submitted that the evidence on record indicates that all the accused came to the residence of the victim armed with weapons. It was submitted that even if the defence case is accepted as true namely that they had gone to remove encroachment, they had not gone with the weapons. It was submitted that going to the house of the victim with weapons itself is an overt act. This is a case of premeditated attack and where the other side had come with the weapons and started assault which is an overt act attracting section 149 of the Indian Penal Code. It was submitted that the prosecution case is supported by the testimonies of injured witnesses and right from the inception, there is premeditation on the part of the accused who have come jointly and hence, section 149 is clearly attracted and the applicants are rightly convicted under section 302 read with section 149 of the Indian Penal Code.

This court considered the submissions advanced by the learned advocates for the respective parties and perused findings of the trial court in the impugned judgment and order and the record as brought to the notice of the court.

5.1. From the findings recorded by the trial court, prima facie it appears that the genesis of the incident does not appear to have been correctly brought on record. While the informant, in the first information report, refers to the breaking of a bulb by a ball while the boys were playing cricket on the previous day, the eye-witnesses including the informant in their testimonies have stated that such incident occurred on the date of the offence and that, it was the starting point of the incident, whereafter, the accused came to the scene of offence armed with weapons and assaulted the deceased and others. A perusal of the findings recorded in the impugned judgment reveals that the trial court has come to the conclusion that this is a case of free fight wherein members of both the sides have been injured. The trial court has also found that it has not been established beyond reasonable doubt as to who was the aggressor. The trial court also noticed that while it is the case of the witnesses that the starting point of the incident was the cricket ball breaking the light bulb, whereas, the scene of offence panchnama does not show any broken bulb or a cricket ball. A bike belonging to the accused No. 1 - Pravinsinh has also been found at the scene of offence, which has not been explained by the prosecution witnesses.

5.2. While the witnesses have deposed that all the accused indiscriminately landed blows with sticks and pipes on the deceased, the medical evidence shows only two injuries, one on the head, which is a grievous injury and a contusion in the middle of the chest, which is a simple injury. A perusal of the testimonies of the witnesses as pointed out to the court, reveals that the witnesses have deposed that Pravinsinh had got provoked and had inflicted a blow with a dharia on the head of Jivanbhai Sartanbhai. The trial court has found that the medical evidence indicates that the deceased had died on account of the injury caused to him by the dharia. The evidence on record reveals that apart from deceased some other witnesses had also sustained injuries and 3-4 accused also sustained injuries out of whom, one had sustained grievous injuries, however, it is the case of the applicants that such injuries are not explained by the prosecution.

5.3. Despite the above findings recorded by the trial court that it was a free fight, the trial court has held that the accused had gone on the RCC road in front of the deceased's house armed with deadly weapons and the accused were more than five in number and that, in this case, both the sides had formed unlawful assembly and had attacked each other with weapons. It is in this background, the trial court has invoked the provisions of section 149 of the Indian Penal Code and has convicted and sentenced to the applicants.

5.4. In the light of the law laid down by the Supreme Court in the decisions referred to by the learned counsel for the appellants which lay down that in a case of free fight, the individual role of each accused is required to be considered, the applicants have made out a prima facie case and have a fairly arguable case in their favour. Moreover, the applicants were on bail during the course of trial and no untoward incident has taken place during such period and the applicants have not taken any undue advantage of their liberty. The court is, therefore, inclined to exercise discretion in favour of the applicants.

6 . For the forgoing reasons, the application succeeds and is, accordingly allowed. The execution of the sentence awarded by the by the learned Sessions Judge, Mahesana by the judgment and order dated 18.06.2019 passed in Sessions Case No. 131 of 2016 is hereby by kept in abeyance qua the present applicants namely (1) Parmar Rajendrasinh Bhikhuji, (2) Parmar Uttamsinh Pravinsinh, (3) Parmar Jitendrasinh alias Hakuji Bhikhusinh, (4) Parmar Satubha Javanji, (5) Parmar Mayursinh Pravinsinh and (6) Parmar Kanasinh alias Kanuji Gandaji till the final hearing of the appeal. The applicants be released on regular bail on their executing a personal bond of Rs. 10,000/- (rupees ten thousand only) each with one solvent surety each of the like amount to the satisfaction of the trial court with the following conditions:

a) they shall not take undue advantage of their liberty or abuse their liberty;

b) they shall maintain law and order;

c) they shall surrender their passports, if any, to the lower court, within a week and if they do not possess any passport, then they shall make a declaration to that effect before the trial court;

d) the applicants shall furnish the present addresses of their residences to the Investigating Officer and also to the court at the time of execution of the bonds and shall not change the places of residences without the prior permission of this court.

6.1. Bail bonds before the trial court having jurisdiction.

6.2. It is made clear that any observations made while deciding this application are merely prima facie observations made for the purpose of grant of bail and shall have no bearing on the final outcome of the appeal.

6.3. Rule is made absolute accordingly. Direct service today is permitted.