ORAL JUDGMENT
(PER: HONOURABLE MR. JUSTICE KS JHAVERI)
1. Both these appeals arise out of the same incident and therefore, they are decided by this common judgment.
2. Criminal Appeals No. 1391/2007 and 1394/2007 arise out of the judgment and order passed by the Court of learned Addl. Sessions Judge & Fast Track Court, Junagadh in Sessions Case No. 85/2003 dated 05.10.2007 whereby, the appellants in both these appeals, who are the original accused persons, were convicted for the offence punishable u/s.302 r/w. Section 149 of Indian Penal Code (for short, “the IPC”) and also u/s.307, 326, 325, 324 and 506(2) r/w. Section 147, 148 and 149 IPC. Over and above the conviction under IPC, appellant no. 1, original accused no. 1, was also convicted for the offence punishable u/s.27 of the Arms Act. All are accused are directed to suffer imprisonment as under;
Sr. No.
1.Criminal Appeal No.
1391/2007 & 1394/2007Particulars of SentenceFor conviction u/s.302 r/w. Section 149 IPC, all the accused persons were sentenced to undergo imprisonment for life and fine of Rs. 5000/- each and in default, simple imprisonment for a further period of six months.
For conviction u/s.307 r/w. Section 149 IPC, all the accused persons were sentenced to undergo imprisonment for seven years and fine of Rs. 2500/- each and in default, simple imprisonment for a further period of three months.
For conviction u/s.326 r/w. Section 149 IPC, all the accused persons were sentenced to undergo imprisonment for five years and fine of Rs. 2500/- each and in default, simple imprisonment for a further period of three months.
For conviction u/s.325 r/w. Section 149 IPC, all the accused persons were sentenced to undergo imprisonment for five years and fine of Rs. 2500/- each and in default, simple imprisonment for a further period of three months.
For conviction u/s.324 r/w. Section 149 IPC, all the accused persons were sentenced to undergo simple imprisonment for one year and fine of Rs. 1000/- each and in default, simple imprisonment for a further period of one month. For conviction u/s.147 r/w. Section 149 IPC, all the accused persons were sentenced to undergo imprisonment for one year and fine of Rs. 1000/- each and in default, simple imprisonment for a further period of one month.
For conviction u/s.148 r/w. Section 149 IPC, all the accused persons were sentenced to undergo imprisonment for one year and fine of Rs. 1000/- each and in default, simple imprisonment for a further period of one month.
For conviction u/s.506(2) r/w. Section 149 IPC, all the accused persons were sentenced to undergo imprisonment for seven years and fine of Rs. 1000/- each and in default, simple imprisonment for a further period of three months.
Whereas, for conviction u/s.27 of the Arms Act, original accused no. 1 was sentenced to undergo simple imprisonment for three years and fine of Rs. 2500/- and in default, simple imprisonment for a further period of three months.
All the above sentences were ordered to run concurrently and sentence already undergone was given as set-off.
2.1 Criminal Appeal No. 1244/2007 also arises out of the same incident and has been preferred against the judgment and order passed by the Court of learned Addl. Sessions Judge and Fast Track Court, Junagadh in Sessions Case No. 53/2004 dated 05.10.2007 whereby, the appellants, original accused no. 1 to 5, have been convicted for the offence punishable u/s.323, 324, 325, 147, 148 r/w. Section 149 IPC and are directed to suffer imprisonment as under;
Sr. No.
1.Criminal Appeal No.
1244/2007Particulars of SentenceFor conviction u/s.325 r/w. Section 149 IPC, all the accused persons were sentenced to undergo simple imprisonment for five years and fine of Rs. 2500/- each and in default, simple imprisonment for a further period of three months.
For conviction u/s.324 r/w. Section 149 IPC, all the accused persons were sentenced to undergo simple imprisonment for one year and fine of Rs. 1000/- each and in default, simple imprisonment for a further period of one month.
For conviction u/s.323 r/w. Section 149 IPC, all the accused persons were sentenced to undergo simple imprisonment for three months and fine of Rs. 500/- each and in default, simple imprisonment for a further period of fifteen days.
For conviction u/s.147 r/w. Section 149 IPC, all the accused persons were sentenced to undergo simple imprisonment for one year and fine of Rs. 1000/- each and in default, simple imprisonment for a further period of one month.
For conviction u/s.148 r/w. Section 149 IPC, all the accused persons were sentenced to undergo simple imprisonment for one year and fine of Rs. 1000/- each and in default, simple imprisonment for a further period of one month.
All the above sentences were ordered to run concurrently and sentence already undergone was given as set-off.
3. The facts in brief giving rise to the filing of present appeals are as under; (For the sake of convenience, Criminal Appeals No. 1391/2007 & 1394/2007 is taken as the lead matters);
Satish Jiva Jothwa, the original complainant, was residing along with his family at Village Erana and was earning his livelihood from agriculture. On 02.09.2003 at around 1030 hrs., Bhurabhai Jivabhai, who is the uncle of the complainant, was going to the agricultural field on his bicycle. At that time, appellant-original accused no. 1, who was standing near the Bus-stand, stopped Bhurabhai Jivabhai and picked up a quarrel on the issue of him helping one Nathabhai Nagabhai with whom the appellant-original accused no. 1 was not having friendly relations. Incidentally, Nathabhai Nagabhai happened to pass through the said area on his motor-cycle and he noted a crowd having gathered near the bus-stand. Nathabhai Nagabhai joined Bhurabhai Jivabhai in the quarrel, which led to heated exchanges between both the sides. The appellant-original accused no. 1 was joined by others, who are the original accused persons in Sessions Case No. 85/2003. They were armed with deadly weapons like revolver, swords, knives and sticks. On hearing the shouts of Bhurabhai Jivabhai and the original complainant, their relatives near the scene, who happen to be the original accused persons in Sessions Case No. 53/2004. Thereafter, a free-fight ensued between both the sides and during that period, accused no. 1 took out a revolver from his possession and fired at Nathabhai Nagabhai and Punjabhai Bhimsibhai. Several blows with deadly weapons like swords, knives and sticks were exchanged. In the above incident, two injured persons lost their lives.
4. A complaint in connection with the above incident was lodged before Mangrol Police Station vide I-C.R No. 70/2003. A cross-complaint vide I-C.R No. 71/2003 was also registered in connection with the same incident. Necessary investigation was carried out and statements of several witnesses were recorded. As prima facie evidence was found against the accused persons, they were arrested and at the end of investigation, charge-sheet was filed before the concerned magisterial Court. Being a sessions triable offence, the case was committed to Sessions Court, Junagadh for adjudication on merits and two different Sessions Cases were registered.
5. In order to bring home the charge against the appellants, the prosecution examined the following witnesses;
Pros. Witness No.Name of WitnessExhibit No.1Dr. M.G Satrodiya512Dr. Linesh Makwana733Dr. Anil Sakhiyani844Naran Punja1075Desha Devshi1096Nasinghbhai Nensibhai1117Parsottambhai Savjibhai1148Ratibhai Khimjibhai1159Nagabhai Hirabhai11810Virambhai Kanabhai12011Hardas Desa12512Arjan Govindbhai13313Vikram Arjanbhai13514Bhikhabhai Virabhai13715Mansukh Amarsinh13916Lakhabhai Pethabhai14117Laxmanbhai Makwana14318Rasulkhan Gulamkhan14419Razak Ismail14720Hanif Ibrahim14821Ali Giga15022Ismail Hussain15223Gova Parbat15324Kanjibhai Karsanbhai15525Hasmukh Raja15626Karmanbhai Jethabhai15827Arjan Parbat15928Musabhai Allarakha16129Amadbhai Musabhai16330Dhirubhai Naranbhai16531Mohanlal Khimjibhai16732Mamadbhai Ismail16933Ibrahim Kasam17234Atul Prabhudas17335Dr. Jigna Dave18236Dr. Kartik Modha19237Bhanji Vashram23038Ranchhodbhai Rathod23639Dr. Bhalchandra Joshi24140Dr. Jitendra Gajera25241Dr. P.B Nariyani26042Satishbhai Bhimsinh Jothwa26843Malde Naga27144Punjabhai Bhimsinhbhai27245Jagmal Jivabhai27346Bhurabhai Jivabhai27447Bhimsinhbhai Jivabhai27648Chandrakant Natwarlal28049Mahipatbhai Bhikhubha28350Ravjibhai Valjibhai28551Jayeshbhai Tapubhai28952Karsanbhai Gangabhai29053Subhashbhai Vadhera31154Hasmukhlal Aahir31655Arjanbhai Meraman32056Harishchandra Trivedi32357Bharatbhai Mistri32758Vishnukumar Vyas33759Manharlal Mehta34760Kalekhan Kureshi351
6. The prosecution also produced and relied upon the following documentary evidence during the course of trial;
1Medical case-papers of deceased-Nathabhai Nagabhai52, 53 & 562Medical case-papers of deceased-Hamirbhai Nagabhai54 & 553Medical case-papers of injured Jagmal Jivabhai57 & 584Medicla case-papers of Bhimsinh Jivabhai59 & 605Medical case-papers of Bhurabhai Jivabhai61 & 626Medical case-papers of Punja Bhimsibhai65 & 667Medical case-papers of of Satish Bhimji74 & 758Medical case-papers of Pathubha Govindji (accused)769Medical case-papers of Navalsinh (accused)7710Medical case-papers of Gumansinh (accused)7811Medical case-papers of Juvansinh (accused)7912Medical case-papers of Punjasinh (accused)8013Inquest panchnama of Hamir Nagabhai10814Inquest panchnama of Natha Nagabhai11015Panchnama of scene of offence11216Post-mortem report of deceased-Nathabhai Nagabhai18917Cause of death certificate of Nathabhai Nagabhai19018Post-mortem report of Hamirbhai Nagabhai26419Cause of death certificate of Hamirbhai Nagabhai26520Complaint26921FSL Report37122Serology Report36623Chemical Analyzer Report373
7. At the end of trial, the Court below recorded further statement of accused u/s.313 Cr.P.C and ultimately, passed the impugned judgment and orders, which has led to the filing of present appeals.
8. Mr. Y.S Lakhani learned senior counsel appearing with Mr. Ashish Dagli for the appellants, original accused in Criminal Appeal No. 1391/2007 & 1394/2007, submitted that the Court below has committed serious error in convicting the appellants for the alleged offence. He submitted that the evidence on record has not been appreciated in its proper perspective resulting into gross injustice to the accused persons.
8.1 Learned senior counsel submitted that there is nothing on record to prove that there was any premeditation of prior meeting of minds amongst the accused persons for committing the offence alleged. He drew our attention to the evidence of Investigating Officer, Kalekhan Kureshi (PW-60), where the witness has admitted that he could not decide with certainty as to which party was the aggressor and therefore, charge-sheets were filed against both the parties. However, the Court below did not appreciate the above aspect of the case and held the appellants guilty for the alleged offence.
8.2 Learned senior counsel further submitted that the alleged incident took place in broad day-light at a public place. However, no independent witnesses have been examined. Those who are examined, are injured witnesses, belonging to one family. Still, however, the Court below pardoned the prosecution.
8.3 Learned senior counsel Mr. Lakhani submitted that there is serious contradiction about the genesis of the incident. The evidence of injured witnesses and dying declaration of deceased-Nathabhai Nagabhai are mutually destructive. At Primary Health Centre, Mangrol, none of the injured persons had given names of any of the accused persons in the history. The Court below ignored the above discrepancies in the prosecution case and proceeded to convict the appellants, which is contrary to the settled principles of criminal jurisprudence.
8.4 Learned senior counsel Mr. Lakhani further submitted that the motive attributed to the accused persons is the dispute about election. However, it is admitted by the prosecution witnesses that election took place before two years and that the persons supported by the accused persons had won the said election. On account of that, the informant and others had a grudge and not the accused persons. Therefore, the prosecution has also failed to establish motive behind the commission of alleged offence.
8.5 Learned senior counsel Mr. Lakhani lastly submitted that the Court below has not believed the presence of informant-Satish Bhimsinh Jothwa at the scene of offence at the relevant time. The informant had not sustained any bodily injuries in the alleged incident. This shows that the story narrated by the informant is concocted and not believable. He, therefore, submitted that the impugned judgment and order rendered by the Court below in Sessions Case No. 85/2003 deserves to be quashed and set aside.
9. Learned senior counsel Mr. Lakhani placed reliance upon a decision of the Apex Court in Mohd. Khalil Chisti v. State of Rajasthan, (2013) 2 SCC 541. The case pertained to group rivalry/mob fight. The prosecution had led contradictory sets of evidence and no reliable and trustworthy evidence was available to fasten vicarious liability u/s.34 IPC. Both the sides were found to have attacked each other and in the incident, one person had died and serious injuries were caused to persons on both sides. It was held that, in such circumstances, each accused can only be fastened with individual liability taking into consideration the specific role or part attributed to each accused person and that S.34 IPC would be inapplicable. Furthermore, normally, no right of private defence would be available to either party in such circumstances and they will be guilty for their respective acts. Accordingly, various accused persons were held liable u/s.324 for their individual acts alone, which stood established.
9.1 Reliance was also placed on two unreported decisions of this Court rendered in Criminal Appeal No. 1153 of 2003 decided on 29.07.2011 and Criminal Appeal No. 167 of 2007 decided on 18.04.2013
10. Mr. PM Thakkar learned senior counsel appearing with Mr. Shaunak Vyas for the appellants, original accused in Sessions Case No. 53/2004, submitted that this was a cross-case wherein, the appellants in Criminal Appeal No. 1244/2007, original accused persons, were assaulted and two persons lost their lives. The appellants had registered the FIR bearing I-C.R No. 70/2003 against the accused persons first in point of time. Thus, it is clear that the complainant side had registered the cross-case against the appellants so as to create a defense in their case. However, the Court below did not appreciate the above aspects of the case and convicted the appellants, which is illegal and contrary to the settled principle of criminal jurisprudence.
10.1 Learned senior counsel Mr. Thakkar submitted that the Court below failed to appreciate the fact that the appellants were assaulted with deadly weapons like revolver, swords and sticks. The real brothers of appellants-accused no. 1 - Nathabhai Nagabhai Jothwa and Hamirbhai Nagabhai Jothwa, were done to death in this incident by the complainants' side. The complainants' side were the real aggressor and the appellants can not be said to have caused the injuries as alleged. Hence, the Court below has committed serious error in convicting the appellants herein.
10.2 Learned senior counsel Mr. Thakkar further submitted that the appellants had registered the offence of double murder against the complainants' side first in point of time whereas, the present offence was registered at much later point of time vide I-C.R No. 71/2003. The factum of registration of the subsequent complaint indicates that the case was registered so as to create a defence in their favour. The prosecution witnesses also did not disclose the factum of registration of complaint against them before the Court below and thus, it has not come with clean hands. Therefore, the version of all the witnesses becomes doubtful and the Court below ought not to have placed reliance upon the same.
10.3 Learned senior counsel Mr. Thakkar further submitted that the Court below has also erred in recording the conclusion that the appellants had formed an unlawful assembly and that they shared the common intention of causing grievous injuries to the complainants' side. Considering the circumstances, the appellants cannot be held guilty with the aid of Section 149 IPC. Hence, the impugned judgment and order deserves to be quashed and set aside.
10.4 Learned senior counsel Mr. Thakkar, lastly, submitted that if the Court is not inclined to entertain this appeal, then the appellants may be granted the benefit of probation u/s.4 of the Probation of Offenders Act looking to their role and conviction.
11. Ms. Nisha Thakore learned APP supported the impugned judgments and orders passed by the Courts below and submitted that the Courts below have appreciated the evidence on record in its proper perspective and have rightly convicted the appellants for the offence in question.
11.1 Learned APP submitted that the accused persons in both the Sessions Cases were members of the unlawful assembly. All the accused persons shared the common object of doing away the members of opposite party. She submitted that the oral as well as documentary evidence on record establish the guilt of accused persons beyond reasonable doubt. Hence, the present appeals deserve to be dismissed.
12. In support of her submissions, learned APP has placed reliance upon a decision of Apex Court in Subal Ghorai v. State of West Bengal, (2013) 4 SCC 607 wherein, the principles of vicarious/construction liability u/s.149 IPC have been summarised. Furthermore, the Apex Court has also discussed the reliability or otherwise of the testimonies of interested witnesses.
12.1 In State Of Rajasthan v. Shiv Charan & Ors…. S, (2013) 12 SCC 76 also, the Apex Court enumerated the things which the prosecution has to establish for resorting to provisions of Section 149 IPC. Furthermore, the Apex Court also discussed the effect of failure/non-explanation of injuries on the accused. It was held that non-explanation of serious injuries on the person of accused may be fatal to prosecution case but, where the injuries sustained by accused are minor in nature, then even in absence of proper explanation by prosecution, the story of prosecution cannot be said to be devious. It was also held that if the common object of unlawful assembly stood translated into action and where the version of accused that they acted in self-defence under grave and sudden provocation is not established, then presumption of case being of free fight and therefore, provisions of Sections 148 & 149 IPC are not attracted, is erroneous.
13. We have heard learned counsel for the parties and have perused the oral as well as documentary evidence on record. We have also gone through the impugned judgments and orders passed by the Courts below and also the jail record of each of the accused.
14. It is not in dispute that both the deceased persons, viz. Nathabhai Nagabhai and Hamir Nagabhai, died on account of the injuries sustained in the incident in question. The prosecution has examined the Medical Officers, viz. Dr. M.G Satrodiya (PW-1) who gave initial treatment to both the deceased persons at Primary Health Centre, Mangrol on 02.09.2003 and Dr. Bhalchandra Joshi (PW-39) who treated the deceased persons at Civil Hospital, Junagadh. Whereas, deceased Hamir Nagabhai died on the date of incident itself, viz. 02.09.2003, deceased-Nathabhai Nagabhai died on 08.09.2003 during the course of treatment at Civil Hospital, Rajkot, where he was treated by Dr. Anil Sakhiyani (PW-3).
15. Insofar as the injuries sustained by deceased-Hamir Nagabhai are concerned, the Doctor has categorically deposed that the injuries were possible with a sharp-edged weapon like sword and a blunt substance like stick/pipe and that they were sufficient to cause death in the ordinary course of nature. Deceased-Nathabhai Nagabhai had sustained gun-shot injuries at two different places of his body and they were sufficient to cause death in the ordinary course of nature. Dr. Jignaben Dave (PW-35) and Dr. P.B Nariyani (PW-41) had performed autopsy of deceased-Nathabhai Nagabhai and deceased-Hamir Nagabhai and the Post-mortem reports have been produced at Exhs. 189 & 264 respectively.
16. Considering the medical evidence on record, it is established that both the deceased persons died a homicidal death. At this juncture, it is required to be noted that over and above the deceased persons, several other individuals had sustained bodily injuries in the incident in question. Five amongst them, viz. Malde Nagabhai (PW-43), Punjabhai Bhimsibhai (PW-44), Jagmal Jivabhai (PW-45), Bhurabhai Jivabhai (PW-46) and Bhimsibhai Jivabhai (PW-47), are from the complainants' side and are prosecution witnesses in Sessions Case No. 85/2003. The above five individuals are original accused no. 1 to 5 in Sessions Case No. 53/2004.
17. Further, five accused persons in Sessions Case No. 85/2003, viz. original accused no. 1, 11, 12, 13 (expired) and 18, had also sustained bodily injuries in the incident, which is evident from the testimonies of Dr. L.S Makwana (PW-2) and Dr. N.M Lakhani (Court Witness No. 1). The said five individuals are prosecution witnesses in Sessions Case No. 53/2004.
18. From the above set of facts, it is evident that not only two individuals died in the incident but several other individuals from both the sides also sustained minor to grave bodily injuries. The question, therefore, arises as to whether the accused persons were members of an “unlawful assembly” as defined u/s.149 IPC or whether the injuries were the result of a “free-fight”.
19. Section 149 IPC essentially contains two ingredients, namely, (i) offence committed by any member of any unlawful assembly consisting of five or more members and; (ii) such offence must be committed in prosecution of the common object of the assembly or members of that assembly knew to be likely to be committed in prosecution of the common object. It is not necessary that for common object there should be a prior concert as the common object may be formed on the spur of the moment. Common object would mean the purpose or design shared by all members of such assembly and it may be formed at any stage. Even if the offence committed is not in direct prosecution of the common object of the unlawful assembly, it may yet fall under the second part of Section 149 IPC if it is established that the offence was such, as the members knew, was likely to be committed.
20. A mere presence or association with other members alone will not per se be sufficient to hold every one of them criminally liable for the offence committed by the others unless there is sufficient evidence on record to show that each intended to or knew the likelihood of commission of such an offending act, being a member of unlawful assembly. Thus, “unlawful assembly” is distinct in comparison to a case of group rivalry or sudden or free fight or an act of the member of unlawful assembly beyond the common object.
21. There is evidence on record to show that accused persons from both the sides had arrived at the scene of offence at different stages and not simultaneously. In fact, the presence of both accused-Pathubha and deceased-Nagabhai Nathabhai at the scene of offence at the relevant point of time is found to be incidental and/or natural. The evidence of eye-witness, Satishbhai Bhimsibhai Jothwa (PW-42), who is the original complainant, would give us a clear picture about the occurrence of the incident. It is evident from his testimony that on the date of alleged incident, while the complainant was standing near a shop, Bhurabhai Jivabhai was passing through on a bicycle.
22. It does not appear from the record that all the accused persons had gathered at the scene of offence before the offence came to be committed or that there existed common object between the accused persons to do away both the deceased persons. From the evidence of complainant-Satishbhai Bhimsibhai Jothwa, it is established that, initially, an altercation took place between accused-Pathubha and Bhurabhai Jivabhai, who was later joined by deceased-Nathabhai Nagabhai, who, incidentally, happened to be passing through the area. Thus, we find that there was no common object or prior meeting of minds amongst the accused persons to do away the deceased persons. There is also nothing on record to show that common intention had developed at the scene of offence. Thus, we find that no ingredients of the offence punishable u/s.149 IPC is present in this case. The incident appears to be in the nature of a free-fight, in which individuals from both the sides sustained minor to severe injuries.
23. Considering the principle laid down by the Apex Court in Mohd. Khalil Chisti's case and the evidence on record, we are of the opinion that each of the accused can only be fastened with individual liability taking into consideration the specific role or part attributed to each of them and that S.149 IPC would be inapplicable. Looking to the evidence against accused-Pathubha, his conviction u/s.302 IPC deserves to be sustained. Insofar as other accused no. 2-Hemubhai Rathod is concerned, who had inflicted sword blow on deceased-Hamirbhai, his conviction would fall u/s.304 Part-I IPC. Insofar as the rest of the accused persons are concerned, we find that they had not played any major role in causing any injury to either of the deceased persons. However, they had caused injuries to other witnesses of the complainants' party and thereby, had committed the offence punishable u/s.323 IPC.
24. Insofar as the accused persons of Criminal Appeal No. 1244/2007 are concerned, the evidence on record shows that they had gone to the scene of offence with weapons. However, there is nothing on record to show that the accused persons had caused any fatal injuries to the members of the other side. In fact, the evidence shows that they had attempted to save deceased-Nathabhai Nagabhai. Looking to the injuries sustained by members of the other side, their conviction also deserves to be altered to one punishable u/s.323 IPC.
25. It is matter of fact that the accused persons from both the sides reside in the same village. In order to maintain peace and amity in the village and considering the fact that a period of more than ten years has elapsed after the incident in question took place, it would be appropriate to reduce the sentence of the accused persons convicted u/s.323 IPC from both the sides to the one already undergone by them since many of the accused had served sentence as under-trial prisoners.
26. For the foregoing reasons, the following order is passed;
(I) All the three appeals are partly allowed.
(II) Insofar as Criminal Appeal No. 1391/2007 and 1394/2007 are concerned, the judgment and order passed by the Court of learned Addl. Sessions Judge, Junagadh in Sessions Case No. 85/2003 dated 05.10.2007 is modified to the extent that original accused no. 1-Pathubha is convicted for the offence punishable u/s.302 IPC and is sentenced to undergo imprisonment for life. The order regarding fine and default sentence is not disturbed qua original accused no. 1. It is also clarified that punishment of imprisonment for life imposed upon original accused no. 1 shall not mean imprisonment till last breath and that the State may grant the accused benefit of remission at the appropriate time. His conviction and sentence u/s.27 of the Arms Act is also confirmed.
Insofar as original accused no. 2-Hemubha is concerned, his conviction is altered to one punishable u/s.304 Part-1 IPC instead of Section 307 r/w. Section 149 IPC. For conviction u/s.304 Part-1 IPC, original accused no. 2 is sentenced to undergo imprisonment for Ten years. The order regarding fine and default sentence is not disturbed qua original accused no. 2. The jail report shows that original accused no. 2 is on bail. His bail bonds stand cancelled and he is ordered to surrender to custody within a period of Ten Weeks from today.
Out of original accused no. 3 to 20, original accused no. 5, original accused no. 13 and original accused no. 16 have expired. Therefore, the appeals stand abated qua the said three accused persons.
Insofar as the remaining accused persons are concerned, viz. original accused no. 3, 4, 6 to 9, 11 to 12 and 14, 15 and 17 to 20, their conviction is altered to one punishable u/s.323 IPC without the aid of Section 149 IPC. For conviction u/s.323 IPC, the sentence already undergone by each of the accused persons is ordered to be treated as sufficient sentence and each of the accused is ordered to pay fine of Rs. 2500/-. None of the accused person is required to undergo any further sentence in respect of the offence in question. The above accused persons are on bail and hence, their bail bonds stand cancelled and surety, if any, stands discharged.
Rest of the impugned judgment and order remains unaltered.
(III) Insofar as Criminal Appeal No. 1244/2007 is concerned, the judgment and order passed by the Court of learned Addl.
Sessions Judge and Fast Track Court, Junagadh in Sessions Case No. 53/2004 dated 05.10.2007 is modified whereby, each of the five accused persons, viz. original accused no. 1 to 5, is convicted u/s.323 IPC without the aid of Section 149 IPC. Their conviction, accordingly, stands altered to one punishable u/s.323 IPC. For conviction u/s.323 IPC, the sentence already undergone by each of the five accused persons is ordered to be treated as sufficient sentence and each of the accused is ordered to pay fine of Rs. 2500/-. None of the accused person is required to undergo further sentence in respect of the offence in question. The above accused persons are on bail and hence, their bail bonds stand cancelled and surety, if any, stands discharged.
Rest of the impugned judgment and order remains unaltered.
27. Records and proceedings, if lying here, be transmitted to the Court below forthwith.