section 149 of the IPC, once membership of an unlawful assembly is established, it is not incumbent on the prosecution to establish whether any specific overt act has been assigned to any accused. In other words, mere membership of the unlawful assembly is sufficient and every member of an unlawful assembly is vicariously liable for the acts done by others either in the prosecution of the common object of the unlawful assembly or such which the members of the unlawful assembly knew were likely to be committed.”= The medical evidence on record through the testimony of PW10 Dr. Setalwad shows that injuries 2 to 5 and 7 though inflicted by sharp cutting weapons were deep upto the skin and were classified as injuries of general type. Injury No.1 according to the prosecution was attributed to accused No.1 who died during the pendency of the appeal. Injuries 6 to 8 are bruises and swellings which could be attributed to sticks. Though the injured Gelabhai was about 80 years of age on the date of incident, he did not suffer any serious or permanent injury and is still alive. At this length of time when 9 years have gone by, in our considered view, ends of justice would be met if the amount of compensation is increased while restoring the sentence imposed by the Trial Court. The Trial Court had directed payment of compensation to the tune of Rs.35,000/- each to be paid by original accused Nos.1 and 7. The record indicates that amount of Rs. 70,000/- has accordingly been deposited with the Trial Court. In the circumstances we deem it appropriate to maintain the order of conviction and sentence as imposed by the Trial Court subject to the modification that each of the appellants shall pay Rs.55,000/- by way of compensation to the injured Gelabhai. Such compensation shall be deposited by each of the appellant with the Trial Court within two months from today and the deposited amount shall be made over to the complainant. The amount of Rs.70,000/- deposited by original accused Nos.1 and 7 shall also be made over to the complainant. Original accused No.7 who had already deposited Rs.35,000/- shall now deposit the balance sum of Rs.20,000/-. In case of any failure to deposit the compensation as directed above, the appellants shall have to undergo sentence in default for a further period of one year.

Non-Reportable

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NOs.783-784 of 2016

Bharwad Navghanbhaj Jakshibhai & Ors. ……. Appellants

Versus

State of Gujarat .……. Respondent

J U D G M E N T

Uday Umesh Lalit, J.

These appeals by special leave at the instance of original accused Nos.2
to 14, seek to challenge the common judgment and order dated 10.03.2016
passed by the High Court of Gujarat at Ahmedabad in Criminal Appeal
Nos.947/2011 and 969 of 2011.

Fourteen accused including appellants 1 to 13 were convicted and sentenced
by Sessions Judge, Patan in Sessions Case No.27 of 2008 as under:-

| 1 to 14 |u/s 147, 148 IPC | Fine of Rs.1000/-, i/d no |
| | |separate imprisonment. |
| 1 and 7 |u/s 326 r/w 149 IPC|R.I. of 2 years + |
| | |Rs.35,000/-(towards |
| | |compensation) |
|2 to 6 and|u/s 326 r/w 149 IPC|R.I. of 2 years+ Rs.500/-, |
|8 to 14 | |i/d 10 days. |
| 1 to 14 |u/s 324 and 149 IPC| Fine of Rs.2000/-, i/d 15 |
| | |days |
| 1 to 14 |u/s 325 r/w 149 IPC| R.I. of 2 years |
| 1 to 14 |504, 506(2) r/w 149|No separate sentence is |
| |IPC |passed as the accused are |
| | |already convicted under |
| | |Section 326 IPC |

All the convicted accused, being aggrieved preferred Criminal Appeal No.947
of 2011 while the State preferred Criminal Appeal No.969 of 2011 seeking
enhancement of the sentence imposed by the Trial Court. During the pendency
of the appeal original accused No.1 having passed away, the appeals stood
abated qua him.

According to the prosecution 2 to 3 days prior to 10.10.2007, the tractor
of one Ganeshbhai i.e. son of the complainant had dashed against the motor
cycle of one Bhikhabhai Ratnabhai. Nursing a grudge on account thereof, on
10.10.2007 at about 1230 hrs. all the accused forming an unlawful assembly
went to the place of said Ganeshbhai with weapons like tamancha, dharia and
sticks. Accused No.1 was armed with a tamancha, accused No.7 was armed with
dharia, and others were armed with sticks. Since Ganeshbhai did not open
the house, the accused proceeded to the house of Gelabhai. All the accused
are stated to have attacked complainant Gelabhai who was sleeping in the
courtyard and caused serious injuries to him.

Gelabhai was taken to Civil Hospital, Mehsana where he remained an indoor
patient for more than 40 days and according to Dr. Setalwad who treated him
and was later examined as PW10 in the trial, said Gelabhai had sustained
following injuries:-

“1. CLW of about 5cm x 2cm x bone deep in size on the rt. Leg middle one
third, anterior aspect compound fracture.

2. Incised wound of about 3cm x 1cm x skin deep inside on the forearm
middle one third anterior aspect oblique in direction.

3. Incised wound of about 4cm x 1cm x skin deep in size on the ant aspect
of the middle one third of it leg, upper part.

4. Incised wound of about 2cm x ½ cm X skin deep in size on the left leg
below knee outer aspect.

Incised wound of about 1cm x ½ cm x skin deep in size on the upper 1/3rd
left leg, anterior aspect.

Abrasion & contusion 10cm x 6cm in size, irregular in shape with D.T.S over
the left forearm lower one third.

Incised wound of about 1cm x ½ cm x skin deep in size, on the Ft. arm
lateral aspect.

D.T.S and fracture deformity Rt. Arm, middle part on which Redish contusion
of about 8cm x 2.5cm in size oblique in direction on the anterolateral
aspect.

1. Fracture of shaft hummers (right)

2. Fracture on Left Tibia and Fibula

3. Fracture of Radius and Ulna.”

Statement of Gelabhai recorded by PW 13 Sub-Inspector Nathabhai led to
registration of Crime No.164 of 2007 against all the accused. After due
investigation, charge-sheet was filed against all the accused under
Sections 307, 325, 324, 504, 506(2), 147, 148, 148(9) of the IPC and under
Section 30(A) of the Arms Act. During trial, the prosecution examined 15
witnesses and also produced documentary evidence. The accused denied having
committed any offence and submitted that they were falsely implicated in
the case because of old rivalry. At the conclusion of the trial, by
judgment and order dated 08.06.2011 the Trial Court acquitted the accused
of charges under Section 307 IPC and Section 30(A) of the Arms Act. Though
there was no charge under Section 326 of the IPC, according to the Trial
Court the material on record was sufficient to prove the case of the
prosecution as against the accused under Section 326 read with Section 149
of the IPC. The Trial Court thus convicted and sentenced all the accused as
stated hereinabove.

While dealing with the challenge by the appellants to the judgment and
order passed by the Trial Court, the High Court affirmed their conviction
and dismissed Criminal Appeal No.947 of 2011. As regards the plea for
enhancement of sentence by the State, the High Court found that the
sentence of 2 years as imposed by the Trial Court for the offence under
Section 326 of the IPC was not commensurate with the gravity of the offence
and as such while partly allowing the appeal preferred by the State, it
enhanced the sentence from 2 years to 5 years rigorous imprisonment for the
offence under Section 326 read with Section 149 of the IPC.

These appeals by appellants seek to challenge the correctness of the
decision of the High Court. Mr. Huzefa Ahmadi, learned Senior Advocate
appearing in support of the appeals submitted inter alia that though there
were 8 injuries on the body of the injured, 14 persons were arrayed as
accused suggesting clear case of over-implication, that the injured person
had not suffered any serious injuries and that the High Court was not
justified in enhancing the sentence. It was further submitted that at this
length of time the ends of justice would be met if the actual sentence was
reduced while enhancing the amount of fine as imposed by the Courts below.
Ms. Hemantika Wahi, learned Advocate appearing for the State and
Mr. Purvish Jitendra Malkan, learned Advocate appearing for the complainant
supported the judgments of conviction by the Courts below but were
agreeable to the submission that the actual imprisonment could be reduced
while enhancing the amount of fine.

We have gone through the record and considered rival submissions. As
regards the findings of conviction by the Courts below, we do not find
anything on record warranting any different view. The conclusion arrived
at by the High Court rightly sums up the matter in following words:

“So far as the submission on behalf of the original accused that only 8
injuries were found and as per the case of prosecution 13 persons caused
the injuries and, therefore, there is exaggeration and/or over-implication
is concerned, it is required to be noted that all the accused were members
of unlawful assembly with a common object. All of them attacked the
original complainant-injured eye witness at his place. All of them were
charged for the offence under Section 149 of the IPC also and they are in
fact convicted with the aid of Section 149 of the IPC. As per catena of
decisions of the Hon’ble Supreme Court as well as this Court, to attract
the provisions of section 149 of the IPC, once membership of an unlawful
assembly is established, it is not incumbent on the prosecution to
establish whether any specific overt act has been assigned to any accused.
In other words, mere membership of the unlawful assembly is sufficient and
every member of an unlawful assembly is vicariously liable for the acts
done by others either in the prosecution of the common object of the
unlawful assembly or such which the members of the unlawful assembly knew
were likely to be committed.”

The medical evidence on record through the testimony of PW10 Dr.
Setalwad shows that injuries 2 to 5 and 7 though inflicted by sharp cutting
weapons were deep upto the skin and were classified as injuries of general
type. Injury No.1 according to the prosecution was attributed to accused
No.1 who died during the pendency of the appeal. Injuries 6 to 8 are
bruises and swellings which could be attributed to sticks. Though the
injured Gelabhai was about 80 years of age on the date of incident, he did
not suffer any serious or permanent injury and is still alive. At this
length of time when 9 years have gone by, in our considered view, ends of
justice would be met if the amount of compensation is increased while
restoring the sentence imposed by the Trial Court. The Trial Court had
directed payment of compensation to the tune of Rs.35,000/- each to be paid
by original accused Nos.1 and 7. The record indicates that amount of Rs.
70,000/- has accordingly been deposited with the Trial Court.

In the circumstances we deem it appropriate to maintain the order of
conviction and sentence as imposed by the Trial Court subject to the
modification that each of the appellants shall pay Rs.55,000/- by way of
compensation to the injured Gelabhai. Such compensation shall be deposited
by each of the appellant with the Trial Court within two months from today
and the deposited amount shall be made over to the complainant. The amount
of Rs.70,000/- deposited by original accused Nos.1 and 7 shall also be made
over to the complainant. Original accused No.7 who had already deposited
Rs.35,000/- shall now deposit the balance sum of Rs.20,000/-. In case of
any failure to deposit the compensation as directed above, the appellants
shall have to undergo sentence in default for a further period of one year.

The appellants who were exempted from surrendering as a result of the order
passed by the learned Chamber Judge of this Court shall surrender to
custody within one month from the date of this order and shall undergo the
sentence as imposed by the Trial Court subject to the modification in
payment of compensation as stated above. In case of any default, the
appellants shall undergo further sentence of one year.

The appeals are thus allowed and the order of sentence passed by the High
Court stands modified to the extent as stated above.

..………………………..J.
(Dipak Misra)

…………………………J.
(Uday Umesh Lalit)

New Delhi
August 29, 2016

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