State Of Gujarat vs Kharwa Hiralal @ Iku Gagan on 11 September, 2003

Gujarat High Court Gujarat High Court State Of Gujarat vs Kharwa Hiralal @ Iku Gagan on 11 September, 2003 Bench: D Trivedi, M Shah JUDGMENT M.S.Shah 1. This appeal, by the State of Gujarat, is directed against the judgment and order dated 30.9.1985 of the learned Additional Sessions Judge, Junagadh at Porbandar acquitting the respondents (original accused Nos. 1 and 2) from the offences punishable under Section 307 read with Sections 511, 353, 307, 224, 225 and 186 IPC, Section 25(1)(a) of the Arms Act and Section 135(1) read with Section 37(1) of the Bombay Police Act. The appeal was admitted by this Court on 27.3.1986. When the appeal reached final hearing, Mr KC Shah, learned Additional Public Prosecutor for the State and Mr KJ Shethna, learned counsel for the respondents state that respondent No. 2-Kharwa Jashu Gagan @ Jivabhai Gagan expired on 2.12.1996 (death registered on 4.12.1996) as per the death certificate dated 27.1.1997 issued by the Registrar of Births and Deaths, Municipal Office, Porbandar, a copy whereof is produced on the record of these proceedings. It is thus obvious that the appeal against respondent No. 2-Kharwa Jasu Gagan has abated. The appeal still survives against respondent No.1-original accused No. 1-Kharwa Hiralal @ Iku Gagan. 2. The respondents herein were charged with aforesaid offences in that on 2.10.1984 at 3.20 AM when PSI-SN Mehta went to arrest the respondents in the terrace of Mulji Govind, father-in-law of the two respondent-brothers, respondent No. 2 assaulted the said complainant-PSI with a knife and attempted to commit murder of the said PSI and thus committed the offence punishable under Section 307 read with Section 511 IPC and also obstructed the said PSI in the discharge of his duties as a public servant and thus committed the offence punishable under Section 353 IPC. At the aforesaid time, date and place, when the complainant-PSI was grappling with accused No.2, accused No.1 came out with a pistol and threatened the complainant-PSI to release accused No. 2 and accused No.1 brandished the illegal pistol, without license, in order to cause death of the complainant-PSI and thus committed the offence punishable under Section 307 read with Section 511 IPC.Both the respondent-accused were also charged with the offence punishable under Section 224 IPC for obstructing their arrest and accused No.1 was also charged with the offence punishable under Section 225 IPC. Accused No.1 was further charged with the offence punishable under Section 25(1)(a) of the Arms Act, 1959 for possessing a fire arm without license. Both the respondents were also charged with the offence punishable under Section 186 IPC for causing illegal obstruction to the police in the discharge of their official duties. The respondents were accordingly charged with the offences punishable under Sections 307, 353, 146 and 511 read with Section 144 IPC and also for the offences punishable under Sections 224, 255 and 186 IPC. Respondent No. 1 was further charged with the offence punishable under Section 25(1)(a) of the Arms Act and respondent No. 2 was further charged with the offence punishable under Section 135(1) read with Section 37(1) of the Bombay Police Act. 3. The prosecution case was that in the early morning hours of 2.10.1984, PSI-SN Mehta (PW 1) received information that the respondents herein, who were two of the accused in connection with the offence punishable under Sections 302 and 307 IPC registered at CR No. 188 of 1984 at Porbandar City Police Station and who were absconding, were sleeping in the house of Mulji Govind in Kharvawad Ju Falia at Porbandar and on getting the said information, the said PSI consulted his superiors, District Superintendent of Police (DSP) and Sub Divisional Police Officer (SDPO) and alongwith the said superior officers and other members of the police staff and SRP constables, the PSI went to the house of Mulji Govind. Since all the doors and windows for entering the house were found to be closed from inside, as per the instructions of the DSP, the PSI climbed up the ladder which was taken by them and the three constables were also asked to follow the PSI by climbing up the ladder. The PSI went onto the terrace on the third floor of the house. Accused No.2, sleeping in a cot on the terrace, woke up and rushed towards the PSI with a naked knife. The PSI overpowered him and gave him a fist blow resulting into the knife being dropped by accused No. 2, who in the meantime
Indian Kanoon - http://indiankanoon.org/doc/1090813/ 1

State Of Gujarat vs Kharwa Hiralal @ Iku Gagan on 11 September, 2003

also shouted "police has come, save, save". Hence, accused No.1 who was sleeping inside the adjoining room on the same floor came out with a pistol in his hand and called upon the PSI to release accused No. 2, failing which accused No.1 will murder the PSI. However, the PSI did not release accused No.2. Hence, accused No.1 aimed the pistol at the PSI and fired one shot. The PSI saved himself by ducking his head. The three constables who were following the PSI rushed and caught hold of both the accused. One of the police constables who had climbed up to the terrace went down-stairs through the inner staircase and opened the front door of the house on the ground floor. Thereafter, the DSP, the SDPO and the other persons entered the house and reached upto the terrace. The PSI lodged his complaint (Exh. 10) at 4.45 same morning. The accused were arrested and were chargesheeted for the aforesaid offences. 4. At the trial, the accused pleaded not guilty and the prosecution examined PSI-SN Mehta (the complainant) at Exh. 10, Mojitsingh Bhikhubhai, Unarmed Police Constables (Exh. 12), Police Head Constable Jitudan Devidan Gadhvi (Exh. 13) and Police Constable Jivabhai Sajanbhai (Exh. 14) as eye witnesses. The prosecution also examined two panch witnesses Premshankar Prabhashankar and Mohan Lila at Exhs. 18 and 20 respectively in respect of the panchnama of the search of the house of Mulji Govind (Exh. 19). Both the panch witnesses, however, turned hostile. The prosecution also examined three other police witnesses Bhikhabhai Karsandas Rathod, Police Inspector (Exh. 15), Seshursinh Pannasinh, Police Head Constable of Porbandar Police Station (Exh. 16) and Anupsingh Bapulal Vir, Dy.SP at Porbandar City Division (Exh. 21). The prosecution also relied on the Forensic Science Laboratory report at Exh. 7 in respect of the pistol and the cartridges recovered from the scene of offence and also the documents at Exh. 8 being the sanction letter for lodging proceedings under the Arms Act. After the prosecution evidence was led, the statements of the accused were recorded under Section 313 Cr.PC. The defence of both the accused was of general denial and they also took the stand that at 10 O' clock in the morning of 2.10.1984, a police constable had gone to the residence of the accused at Vaniyavad in Porbandar informing the accused that they were being called at the police station; on reaching the police station, the two accused were informed that the offence punishable under Section 307 IPC was registered against them; and that they had nothing further to add. The accused did not lead any evidence nor did they examine themselves as witnesses. 5. The learned Additional Sessional Judge framed the issues and held that the prosecution had established that the accused were absconding in connection with the offence registered at CR No. 188 of 1984 at Porbandar City Police Station for whom the police were in search. However, the learned Judge gave findings against the prosecution in respect of all the other issues. The learned Judge held that PSI-SN Mehta (PW 1) did not know either of the accused nor did the accused know PW 1-complainant as a police officer. The learned Judge further held that even if it were to be held that the accused were in the house of Mulji Govind at the time and on the date in question, accused No.1 did not intend to cause death of the complainant-PSI, but accused No.1 only tried to prevent any injury or damage being caused by the complainant to accused No.2 and that accused No.1 only wanted to see that accused No.2 was released by the complainant. Hence, if any shot was fired, accused No.1 did not intend to murder the complainant. The learned Judge further held that no injury was caused either to the complainant or to any other police officer nor to the accused. The learned Judge further held that the accused were thus acting only in self-defence and, therefore, they had not committed any offence punishable under Sections 307, 511, 353, 186, 224 or 225 IPC. 6. As regards the recovery of the pistol and the knife and consequently the offences under the Arms Act and the Bombay Police Act, the learned trial Judge held that the panchas had not supported the prosecution case. The panchas were required to be called from the locality where the incident had taken place, but no persons from the locality were called as panchas. Moreover, the learned Judge held that, even according to the prosecution case, the panchas entered the house alongwith the DSP and the SDPO after the PSI and the three police constables had overpowered the accused and that they had not witnessed the incident. It was further observed that the police did not make any attempt to get the front door opened and there was violation of the provisions of Section 165 Cr.PC in as much as before carrying out the raid or entering the house of Mulji Govind, the complainant or any other police officer did not record in writing the grounds for his belief that anything necessary for the purposes of an investigation into the offence registered at CR No. 188 of 1984 may
Indian Kanoon - http://indiankanoon.org/doc/1090813/ 2

State Of Gujarat vs Kharwa Hiralal @ Iku Gagan on 11 September, 2003

be found in the house of Mulji Govind. Hence, in absence of compliance with the said mandatory provision, the recovery of the knife and the pistol from the two accused in the house of Mulji Govind was illegal and vitiated the entire search. The learned Judge further held that the two senior officers, DSP and SDPO, were not examined as witnesses and that in view of the aforesaid lacunae, the accused were required to be acquitted of all the offences. 7. It is against the aforesaid judgment and order of acquittal that the State has approached this Court in appeal. On 27.3.1986, leave was granted and the appeal was admitted. As already stated above, during pendency of the appeal, accused No. 2 is stated to have expired on 2.12.1996. The appeal, therefore, survives only against original accused No.1 who is respondent No.1 herein and is represented by Mr KJ Shethna. 8. At the hearing of the appeal, Mr KC Shah, learned Additional Public Prosecutor has submitted that this is a case where the appeal involves not merely reappreciation of evidence but application of erroneous principles of law by the learned Judge and also perverse findings of fact which no reasonable person instructed in law would give on the basis of the material on record. The learned APP has made the following detailed submissions :(i) There was no question of application of Section 165 Cr.PC to the situation at hand. Having obtained the information that two accused of CR No. 188 of 1984 were hiding themselves in the house of their father-in-law Mulji Govind in Kharvawad Ju Falia, the PSI (who was actually involved in the bandobast duty when he received the aforesaid information) with his superior officers as well as the subordinate staff and the SRP party had gone to the house of Mulji Govind in the early morning hours of 2.10.1984. Since the PSI was also informed that the accused were sleeping on the third floor, naturally anticipating that the police party may not be able to enter the house, they had also carried a ladder with them for climbing up to the third floor. What the complainant-PSI and the other members of the police party had gone to do was to arrest the two accused out of the six persons accused of a cognizable offence under the provisions of Section 41(1)(a) of the Cr.PC. which empowers any police officer, without an order from a Magistrate and without a warrant, to arrest any person who has been involved in any cognizable offence. None of the provisions in Chapter 5 of the Cr.PC requires any such police officer to record any reason in writing before taking any steps for arresting the accused concerned in any cognizable offence and, therefore, the learned Judge committed a serious error of law in holding that Section 165 Cr.PC was applicable and was committed breach of. (ii) Having held that both the accused were absconders in respect of the offence registered at CR No. 188 of 1984 at Porbandar City Police Station and that the PSI and the other members of the police party were on public duty at the relevant time in the early hours of 2.10.1984, the learned Judge erred in not holding that the complainant-PSI and other members of the police party had gone to arrest both the respondents herein and that both the respondents had voluntarily obstructed the PSI in the discharge of his public functions and that they had committed the offence punishable under Section 186 IPC. So also both the accused had intentionally offered resistance and illegal obstruction to their lawful apprehension by the PSI for the offence registered at CR No. 188 of 1984 and had thus committed the offence punishable under Section 224 IPC. Accused No. 1 had further committed the offence punishable under Section 225 IPC by intentionally offering resistance and illegal obstruction to the lawful apprehension of accused No.2 by the complainant-PSI for the same offence registered at CR No. 188 of 1984 and accused No. 1 had thus committed the offence punishable under Section 225 IPC. (iii) The complainant and the constables had already recovered the knife and the pistol from accused Nos. 2 and 1 respectively for which a panchnama was also drawn at Exh. 19 immediately on the spot and there was no reason to disbelieve the said panchnama or the oral evidence of the Dy.SP, the PSI and the constables that they had recovered the weapons from the accused at the scene of offence and thus the prosecution had led sufficient evidence to prove the possession of the pistol by accused No.1 and possession of the knife by accused No.2. Thus, the commission of offences under Section 25(1)(a) of the Arms Act and under Sections 135(1) and 37(1) of the Bombay Police Act was clearly established.
Indian Kanoon - http://indiankanoon.org/doc/1090813/ 3

State Of Gujarat vs Kharwa Hiralal @ Iku Gagan on 11 September, 2003

(iv) The report of the FSL at Exh. 7 clearly indicated that the blank cartridge recovered from the scene of offence was fired from the pistol in question and thus accused No.1, from whom the pistol was recovered, had fired the shot after aiming at the complainant-PSI which clearly proved the intention to cause death of the PSI and, therefore, accused No. 1 had committed the offence punishable under Section 307 IPC. 9. On the other hand, Mr KJ Shethna, learned counsel for respondent No.1-accused has made detailed oral submissions as well as written submissions for supporting the order of acquittal. The main submissions are as under :(i) The entire story of the police party having gone to the house of Mulji Govind (father-in-law of the accused brothers) and having arrested the accused from there is too fantastic to be accepted as true. The accused were called from their house in Vaniawad at Porbandar at 10 O' clock in the morning and no such incident as alleged had taken place in the early morning hours of 2.10.1984. If any such incident had taken place and the accused had offered any resistance or put up any obstruction to their arrest, the accused and/or some member of the arresting party would have received some injury; but nobody had received any injury even though accused No. 2 had allegedly rushed to the PSI with a naked knife, the PSI had caught hold of him and both of them were grappling with each other. Accused No. 1 would have noticed that accused No.2 and the PSI were grappling with each other and firing a single shot at the PSI would have exposed to his brother accused No.2 to a vital injury. The improbability is also apparent from the fact that although accused No.1 is stated to be carrying a pistol with as many as eight live cartridges, when the PSI caught hold of accused No.2, if the shot fired by accused No.1 at the PSI had gone in vein, accused No.1 would have immediately fired one shot after another. (ii) When a pistol shot is alleged to have been fired by accused No.1 in a residential area, the people in the vicinity would have got up and come out and the evidence of witnesses in the neighbourhood would have been available if the prosecution story was true. No such witnesses from the neighbourhood or locality have been examined. (iii) No mark was found on the wall of the terrace where the alleged incident took place. If any shot was fired by accused No. 1 at the PSI, when he was grappling with accused No. 2 and an empty cartridge is allegedly found near the flower pots on the terrace, there would be some mark on the parapet wall of the terrace. It is, therefore, clear that no shot was fired by accused No.1. (iv) It is submitted in the alternative that in any view of the matter if at all any shot was fired by accused No.1, it was done without knowing that the person who had climbed up on the terrace was a police officer or a public servant, much less with the knowledge that the officer had come to arrest the accused in connection with CR No. 188 of 1984 because admittedly the complainant-PSI was not investigating the said offence. it is submitted that the incident was picked up in order to see that the complainant-PSI gets a prize for arresting the two accused. (v) The prosecution has relied on the FSL report at Exh. 7, but a perusal thereof indicates that the said report dated 11.3.1985 was in response to the letter dated 29.10.1984 of the PSI, Porbandar sent alongwith the four parcels which were received by the FSL on 2.11.1984. The alleged incident took place on 2.10.1984 and according to the prosecution case, the knife, the pistol and the cartridges alleged to have been recovered by the police in the early morning hours of 2.10.1984 were handed over to constable Jayantilal. Constable Jayantilal has not been cited or examined as a witness and no evidence is led to explain as to what happened to the said articles between 2.10.1984 and 29.10.1984. 10. Before dealing with the aforesaid submissions, we may briefly set out the evidence led by the prosecution. 11. The evidence of complainant PSI SN Mehta, PW 1 at Exh. 10 (hereinafter referred to as "the PSI" or "the complainant) is the most material.
Indian Kanoon - http://indiankanoon.org/doc/1090813/ 4

State Of Gujarat vs Kharwa Hiralal @ Iku Gagan on 11 September, 2003

11.1 In his evidence recorded on 20.9.1985, the PSI stated that he was discharging his duties as a PSI at Porbandar City Police Station for the last about one and a half years. In the early morning hours of 2.10.1984, the PSI was in charge of Pilpara Police Chowky and was busy with the police bandobast in connection with the navratri festival at Porbandar. After the midnight he was on patrolling duty with constables PW 3 Jitudan Gadhvi and PW 2 Mojitsinh. During the said patrolling, he received information that out of the absconding offenders of CR No. 188 of 1984 registered at the Porbandar City Police Station, two accused with weapons were hiding in the house of Mulji Govind in JU Falia in Kharvawad. Upon receiving such information at about 1.30 AM, the PSI went to the office and informed the DSP. An urgent meeting was held where the DSP, Porbandar, the SDPO and the other police personnel were present and a jeep, a mobile van and a ladder were summoned to go to the house of Mulji Govind. The vehicles were parked at Paliwada Chowk and the members of the police party walked upto the house of Mulji Govind. All the doors and the windows were closed and, therefore, as per the instructions of the DSP, the ladder brought by the police party was placed near the house. The DSP instructed the PSI to climb up the ladder followed by three constables -- PW 2 Jitudan Gadhvi, PW 2 Mojitsinh and PW 4 Jivabhai Sajanbhai. After jumping over the parapet wall when the PSI landed into the terrace, on account of such noise or for any reason, accused No. 2 woke up and before the PSI would do anything, accused No.2 got up from the bed and took out a knife lying under his pillow and assaulted the PSI. The PSI moved away and jumped and caught hold of accused No. 2 and gave a fist blow on his hand resulting into the knife falling down. Accused No.2 struggled hard to get released from the grip of the PSI shouting "leave me, leave me" and thereafter he also shouted "bachao, bachao" (save, save). Upon hearing that noise, accused No.1 sleeping in the room adjoining the terrace also woke up and came out of the room and rushed with a pistol aiming the same at the PSI. Accused No.1 also threatened the PSI to release accused No.2 failing which accused No.1 would murder the PSI. Since the PSI did not release accused No.2, accused No.1 fired a pistol shot at the PSI which the PSI avoided by ducking. During this fight, the three constables following the PSI also entered the terrace and overpowered accused No.1 and snatched away the pistol. One of the constables, constable Jivan Sajan climbed down the staircase in the house to open the front door on the ground floor enabling the DSP, SDPO and the other members of the party to enter the house and the terrace. Both the accused were thereupon arrested and taken to the police station. The knife (muddamal article No. 1) and the pistol (muddamal article No. 2) were shown to the PSI in the Court and he identified the same as those recovered during the aforesaid incident. The PSI also stated that the police party had carried the panchas with them to the scene of offence. 11.2 In his cross examination, the PSI stated that he was aware of the fact that the offence registered at CR No. 188 of 1984 was being investigated into, and the accused therein were yet to be arrested. He did not know the exact number of the accused involved in the said offence nor was he aware whether the accused other than the two respondents in the present case were arrested. He further stated that the investigation of CR No. 188 of 1984 was not in his charge and he was also not aware as to who was the officer in charge of the said investigation. He also did not remember as to whether the Investigating Officer for the said offence was present at the meeting attended by the DSP, SDPO etc. He further stated that after the incident was over, the SDPO Mr Vir and the PSI himself had got the panchnama written by the police writer. No preliminary panchnama was prepared before reaching the place of Mulji Govind or before climbing up the ladder for entering the house of Mulji Govind. The PSI further stated that no panch was with him or the three constables who climbed up the ladder to get on to the terrace. He admitted that he had a service revolver with him when he climbed up the ladder and entered the terrace and that the three constables who were following him were also having weapons. He had no other weapon in his pockets or elsewhere, but no such thing was mentioned in the panchnama. The PSI further stated that he came to learn from the constables under him that the persons who were arrested at the site were accused No. 1 and accused No. 2 - Iku Gagan and Jasu Gagan respectively and that he had not seen the record of the offence registered at CR No. 188 of 1984 or any record to show that the accused herein were absconders. The PSI did not know Mulji Govind or that Mulji Govind was the father-in-law of the accused. The PSI also stated that no lights were on at the scene of offence and that it was the informant who had shown him the place of Mulji Govind. He stated that there was clear information that the accused were sleeping on the third floor of the house and that the members of the police party were stationed all round the house to prevent any escape of the accused. The PSI further stated that accused No.2
Indian Kanoon - http://indiankanoon.org/doc/1090813/ 5

State Of Gujarat vs Kharwa Hiralal @ Iku Gagan on 11 September, 2003

was sleeping on the cot in the terrace but till he got out of the bed, the PSI did not know as to whether that person was accused No. 1 or accused No. 2. He further stated that the height of the parapet wall of the terrace was about 4 to 4.5 feet and denied the suggestion that the height of the wall was 5 to 6 feet. He further stated that since the acquaintance of the PSI with accused No. 1 was very marginal, he did not realise at the time that the person who came out of the room adjoining the terrace was accused No. 1. He also stated that the muddamal pistol was self-loading. He further stated that there were buildings around the house of Mulji Govind and that he was not sure as to at what height the shot was fired and in which direction. He denied the suggestion that accused No. 1 might have fired the short in the air. He stated that since he had lowered his head when accused No. 1 fired the shot, the cartridge released from the pistol would hit the wall making a dent in the wall or would pass through the wall. The PSI also denied the suggestion that the Porbandar police had animosity against the accused who where criminal minded and strong headed persons and that the PSI and the other police officers had contrived the story only to get a prize, though accused Nos. 1 and 2 had no weapon in the terrace nor had they fired any shot from any weapon. 11.3 The FIR produced by the said witness at Exh. 11 shows that the complaint was lodged at 4.45 AM in the morning of 2.10.1984. The complaint and the oral evidence of the PSI is on the same lines as far as the material particulars are concerned, with the sole exception that in the complaint the PSI stated that when he overpowered accused No. 2 from whose hands the knife fell down, thereupon accused No.2 shouted that the police has come and on hearing that accused No. 1 had come out from the adjoining room alongwith a pistol. In his evidence, the PSI stated that accused No. 2 shouted "save, save". 12. The next witnesses are the three constables who had followed the PSI climbing up the ladder onto the terrace. 12.1 PW 2 Constable Mojitsinh at Exh. 12 stated that PSI Mr Mehta (the complainant), Bhikhubhai Gadhvi and this witness were on patrolling duty when the PSI received the information that the absconding accused of CR No. 188 of 1984 were in Karvawad and thereafter they went to the office of the DSP at about 1.30 AM where the PSI talked to DSP Mr Gurdayal Singh and SDPO Mr Vir. All of them alongwith this witness and other police personnel took the government van, jeep and the ladder and reached Ju Falia where they parked the vehicles and walked to the house of Mulji Govind on foot. This witness has given his evidence more or less on the same lines as that of the complainant-PSI. According to this witness, the threat given by accused No.1 to the PSI to release accused No. 2 and firing of the pistol shot by accused No. 1 at the PSI was seen by this witness and the witness and the other constables had rushed towards accused No. 1 before he could cause any damage. This witness also identified the pistol recovered from accused No.1 which was produced at muddamal article No.2 before the Court. This witness stated in his cross that he and the other two police constables were not in police uniform, but were in plain dress and that no search of their person or clothes was taken before they climbed up the terrace. This witness, however, stated that the panchnama was written in the terrace and that he was present when the panchnama was written, though he did not remember as to who had written the panchnama. He denied the suggestion that no pistol, knife, live cartridges or empty cartridge were found from the scene of office and no firing had taken place at the scene of offence. He also specifically denied the suggestion that accused No. 1 did not have the pistol (muddamal article No. 2) or that the pistol was not collected from accused No.1. According to this witness, the height of the parapet wall was about 5 feet. 12.2 PW 3 Police Constable Jitudan Gadhvi at Exh. 13 and PW 4 Police Constable Jiva Sajan at Exh. 14 also gave the evidence on the same lines. PW 3 stated that one pistol and one knife, 18 live cartridges and one empty cartridge were seized from the scene of offence. This witness also stated that he was in civil dress when they had gone to the terrace. He also denied the suggestion that the incident in question had not taken place at the house of Mulji Govind and that a false case was lodged because the police department had animosity against the accused.

Indian Kanoon - http://indiankanoon.org/doc/1090813/

State Of Gujarat vs Kharwa Hiralal @ Iku Gagan on 11 September, 2003

12.3 PW 5 Bhikhabhai Karsandas Rathod, Police Inspector at the DSP office was examined at Exh. 15 to show that he recorded the statements of the three constables on 2.10.1984 and the investigation was thereafter handed over to PI Mr Gohil on 3.10.1984. PW 6 Seshursinh Pannasinh was examined at Exh. 16 to show that the complaint was lodged by PSI Mehta PW 1 at 4.45 AM on 2.10.1984 when this witness was the PSI at Porbandar City Police Station. 13. The prosecution also examined PW 9 Anupsinh Bapulal Vir, DY.SP who, at the relevant time, was SDPO, Porbandar City. 13.1 In his evidence at Exh. 21, he stated that being the supervising officer, he had accompanied PSI Mehta (PW 1), DSP and other members of the police party and had gone to the house of Mulji Govind and that PSI Mehta and the three constables had climbed up the ladder which was carried by the police party in their mobile van. There was a scuffle and the shout that "police have come" was heard and there was a firing when the witness was on the ground outside the house. Thereafter, Jiva Sajan (PW 4) had opened the door of the ground floor and the police party including the witness climbed up the staircase in the house and went to the terrace where the PSI had caught hold of accused No.2 and police constable Gadhvi (PW 2) had caught hold of accused No.1. Police constable Mojitsinh (PW 3) was holding the pistol (muddamal article No.2) and PSI Mehta informed this witness that accused No. 1 had fired a shot from the pistol, but because he ducked his head, he was saved. Eight live cartridges were recovered from the pistol, one empty cartridge was recovered from the terrace and the naked knife was also recovered from the terrace. In the adjoining room, there was a packet containing 10 live cartridges and all these weapons were seized as per the panchnama which was prepared in his presence and in presence of the panchas. He identified the signature on the panchnama Exh. 19 and also the signatures of the panchas and complainant-PSI Mehta. 13.2 It is specifically stated in his cross examination that he was to do visitation for proper investigation of the offence registered at CR No. 188 of 1984 and that as per his inquiry, there were six accused involved in the said offence and that the present accused were two out of those six accused, but none of the six accused could be arrested in connection with the said offence which had taken place in the last week of August, 1984 and no record was prepared about the absconding accused. The present two accused were arrested in connection with the offence registered at CR No. 188 of 1984 and not in connection with the present offence. As regards the signature of PSI Mehta (complainant PW 1) on the panchnama Exh. 19, this witness stated that the signature of PSI Mehta was obtained on the panchnama so that in case if any reward is to be given for such act of bravery, his signature on the panchnama could be useful. This witness denied the suggestion that the panchnama (Exh. 19) was prepared at the city police station and also the suggestion that the panchas were not taken to the scene of offence. This witness also stated that the pistol was 9 mm pistol and that no bullet marks were seen on the terrace wall. Hence, no reference was made to the same in the panchnama. The empty cartridge was recovered from the place near flower pots on the terrace. This witness, however, stated that he had handed over muddamal articles 1 to 5 to muddamal writer Constable Jayantilal, but he did not know as to whom Jayantilal had handed over the articles. This witness further stated that he knew the accused but denied the suggestion that the police department had any animosity against the accused or that no such incident had taken place at the site in question or that no shot was fired at that place. 14. As far as the panch witnesses are concerned, Premshankar Prabhashankar (Exh. 18), who was a rickshaw driver, stated that in the early morning of 2.10.1984 he was called to the police station and was taken to Kharvawad where there were a number of policemen. There was one building where the complainant alongwith the policemen climbed up and that after the policemen climbed down, the witness was taken to the police station. He stated that the two accused who were present before the Court were not with the police party on the date of the incident and that the police did not recover any article at the time of preparing panchnama. The witness was declared as hostile. This witness, however, admitted that the signatures on the paper slips of muddamal articles 1 to 5 were his signatures. He further admitted that the signatures on the panchnama (mark 6/1) were his signatures, but according to him, his signatures were obtained on a blank paper.
Indian Kanoon - http://indiankanoon.org/doc/1090813/ 7

State Of Gujarat vs Kharwa Hiralal @ Iku Gagan on 11 September, 2003

Similarly, PW 8 Mohan Lila at Exh. 20 was the second panch witness and he also did not support the prosecution though he admitted that the signatures on the paper slips of muddamal article 1 to 5 and the two signatures on the panchnama (Exh. 19) as his signatures. The panchnama Exh. 19 indicates that the two panchas Premshankar Prabhashankar and Mohan Lila (PW 7 and 8 respectively) were called by the police and taken to the house of Mulji Govind. Since the doors and the windows of the house were closed from inside, the complainant-PSI climbed up the terrace followed by three police constables - Jitudan Gadhvi (PW 3), Mojitsingh Bhikhubhai (PW 2) and Jiva Sajan (PW 4) and a fire shot was heard. Thereafter police constable Jivan Sajan opened the ground floor door from inside the house and the police party and the panch witnesses climbed up to the terrace where police constable Jitudan Gadhvi was holding one person and police constable Mojitsinh was holding a pistol with one barrel which was smelling gun power recently released. There was an empty brass cartridge near the flower pots on the eastern corner of the terrace. The said empty cartridge was a little hot with fresh gun powder smell. The pistol was 9 mm, 13 cms length with barrel of 5 cms. and with black fibre grip and was bearing English words Helvancal GMM Air. There was also a naked knife near the cot on the terrace which had an aluminium handle grip. The length of the knife was 12 cms and width of 3 cms. The blade itself was of the length of 9 cms. There were no marks on the blade. There were 10 live cartridges in yellow rexine bag. The numbers on the cartridges were also mentioned in the panchnama. There were also 8 live cartridges in the magazine of the pistol. In all there were 18 live cartridges and one empty cartridge. The slips bearing signatures of the panchas were put on the seals applied to the articles, the pistol, knife, live cartridges and the empty cartridge. The panchnama was started at 3.15 AM and completed at 4.15 AM on 2.10.1984. Apart from the signatures of the panchas, the panchnama also bears the signatures of SDPO, Porbandar and the signature of SN Mehta, PSI, Porbandar. 15. A perusal of the aforesaid evidence indicates that SDPO Mr Vir, who was the supervising officer for CR No. 188 of 1984, PSI SN Mehta and the three police constables PW 2, 3 and 4 and the other members of the police party and SRP constables had gone to the house of Mulji Govind in the early morning hours of 2.10.1984, upon receiving the information that the respondents herein were sleeping in the house of Mulji Govind. (It was clearly admitted by the defence that the two accused brothers and that Mulji Govind was their father-in-law). It was PSI SN Mehta who had received this information and, therefore, the attempt made by the defence to show that since SN Mehta was not concerned with the investigation of the offence registered at CR No. 188 of 1984 the entire incident was improbable, cannot be accepted. Since PSI SN Mehta was doing patrolling duty alongwith two other police constables being PW 2 and 3 and since the informant had given the information to the said PSI, the PSI had discussed the matter with the DSP and the SDPO, who were the supervising officers and the said superior officers had taken the PSI alongwith them and other members of the police party and the informant had also accompanied them to the site, it cannot be said that the presence of PSI Mehta was improbable. Mr Vir, SDPO, who was the supervising officer, also stated in his evidence that PSI SN Mehta, aged 28 years, was light bodied and he was asked to climb up the ladder and to arrest the accused and he was to be followed by the three constables. When PSI Mehta climbed up and jumped over the terrace parapet wall, naturally that noise made accused No. 2 wake up and take out the knife from under his pillow. When the PSI overpowered accused No.2 and was still grappling with him, accused No. 1 came out of the room adjoining the terrace and threatened the PSI to release accused No.2 failing which he would fire a shot at the PSI from the pistol which he had already aimed at the PSI. 16. Nothing substantial has been brought out in the cross examination of SDPO Mr Vir, who is of the rank of a Dy.SP, complainant PSI SN Mehta or the three police constables who had followed PSI Mehta on to the terrace as to why the said police officers or the constables would cook up a false case against the accused. It is pertinent to note that although various questions are put to PSI Mehta, PW 1, about his not being involved in the investigation of the offence registered at CR No. 188 of 1984, SDPO Mr Vir has clearly stated in his evidence that Mr Vir himself was the supervising officer for investigation of the said offence and that the accused connected therewith were absconding. Not preparing any notification declaring those six accused as absconders cannot be said to be unnatural because that offence had taken place only in the last week of August, 1984 and the information was received about the two out of those six accused being in the house of
Indian Kanoon - http://indiankanoon.org/doc/1090813/ 8

State Of Gujarat vs Kharwa Hiralal @ Iku Gagan on 11 September, 2003

Mulji Govind in the early morning of October 2, 1984. Thus only 4 to 5 weeks' time had elapsed between the date of commission of the offence registered at CR No. 188 of 1984 and the arrest of the present two accused on 2.10.1984. Mr Vir has clearly stated in his evidence that the investigation of the offence registered at CR No. 188 of 1984 was in charge of PSI Vishan, but upon his transfer, the investigation was in charge of Home Inspector Mr Rathod and that the investigation was handed over to PSI (Home) Mr Rathod only 3 to 4 days prior to 2.10.1984. In this set of circumstances, when Mr Rathod had taken over the investigation of CR No. 188 of 1984 only 3 to 4 days prior to the date of the incident and PSI Mehta who was on patrolling duty had received the information in the early morning hours of 2.10.1984, there was nothing unnatural or improbable in the DSP or SDPO in charge of supervision of the investigation requiring PSI Mehta to accompany the SDPO and the police party for arresting the accused involved in CR No. 188 of 1984. 17. In view of the evidence of the aforesaid witnesses including SDPO Mr Vir, PSI Mehta and the three police constables, the prosecution has established beyond reasonable doubt that SDPO Mr Vir accompanied by complainant PSI Mehta, the three police constables and the other police party and two panchas had gone to the house of Mulji Govind to arrest the two accused who are respondents in this appeal and that complainant-PSI Mehta followed by the three constables had climbed up the ladder to reach the terrace where the accused were sleeping. The aforesaid witnesses have also deposed that when PSI reached near accused No.2, the latter rushed to the PSI with a naked knife and that when the PSI overpowered accused No.2 and was still grappling with him, accused No.1 came out of the adjoining room with a pistol and threatened the PSI to release accused No.2 failing which accused No. 1 would fire from the pistol of accused No.1. The PSI did not release accused No.2 whereupon accused No.1 fired shot from his pistol and the PSI ducked and there was no injury on the person of the PSI. It was 2nd October, 1984 the eight night of Aaso Sud, when there would be moon light on the terrace. These facts are proved beyond reasonable doubt. 18. The defence submission, however, is that if any pistol shot was fired at the PSI by accused No.1 as alleged, mere presence of the empty cartridge near the flower pots in the terrace would not establish the fact of any such shot having been fired at the PSI because even the SDPO has admitted in his evidence that no marks of any such shot were found from the terrace wall although the terrace parapet wall was of the height of atleast 4 to 5 feet as admitted by the prosecution witnesses. This has also led the learned trial Judge to hold in favour of the accused that accused No.2 might have fired the shot in the air to scare away the PSI from causing any injury to accused No.2 and that, therefore, there was no intention on the part of accused No. 1 to cause death of the PSI meaning thereby accused No. 1 had not committed any offence punishable under Section 307 IPC. 19. We find considerable substance in this submission urged by Mr Shethna for the defence. The prosecution case was that when accused No.1 fired a shot from the pistol at the PSI, the PSI was standing while grappling with accused No.2 and that accused No.1 missed the aim only because the PSI ducked the shot and that the bullet marks were not found on the terrace wall because it was of only 4 to 4.5 feet high. But in that case, the empty cartridge would have been found outside the house and would not be found in the terrace, whether near the flowers pot or elsewhere. In fact, PSI Mehta has also admitted in his cross examination that he was not aware as to in which direction and at what height the bullet had travelled. It is, therefore, quite probable that accused No.1 had fired the shot from his pistol in the air to scare the PSI and the three constables who had followed him. We, therefore, hold that accused No.1 was not guilty of the offence punishable under Section 307 IPC as it could not be said that while firing a pistol shot accused No. 1 had the intention of causing death of PSI SN Mehta when the PSI was grappling with accused No.2 in the terrace. 20. However, it is still required to be examined whether the aforesaid facts, while dislodging the prosecution case for the offence punishable under Section 307 IPC, are sufficient to bring the guilt against the accused for the offences punishable under Sections 186, 224, 225 and 353 IPC. The major plank of the defence case is that when the incident took place, the accused were not aware that PW 1 complainant was a police officer or that the three persons following him were police constables because they were not in police uniform but they were in plain clothes. As far as this part of the defence version is concerned, it is true that the three constables were in plain clothes as admitted by them, but it is very clear from the evidence of PSI Mehta, PW 1, that he was
Indian Kanoon - http://indiankanoon.org/doc/1090813/ 9

State Of Gujarat vs Kharwa Hiralal @ Iku Gagan on 11 September, 2003

involved in bandobast duty till 12.30 in the night and thereafter on patrolling duty when he received the information about the two accused in the aforesaid offence hiding/sleeping in the house of Mulji Govind. This would clearly mean that PSI Mehta was in police uniform. Not a single suggestion was put to this witness that he was not in police uniform when he went to the house of Mulji Govind. The very fact that the accused herein were two out of the six accused in CR No. 188 of 1984 which offence was committed in the last week of August, 1984 and that within a period of about 5 weeks, a person in the police uniform had climbed up the terrace where they were sleeping, was more than sufficient to lead the accused to know that the person had come to arrest them in connection with the aforesaid offence. It is, therefore, not possible to accept that the accused could invoke Explanation 1 to Section 99 IPC invoked by Mr Shethna for the defence. Section 99 reads as under :"Act against which there is no right of private defence. 99. There is no right of private defence against an act which does not reasonably cause the apprehension of death or of grievous hurt, if done, or attempted to be done, by a public servant acting in good faith under colour of his office, though that act may not be strictly justifiable by law. There is no right of private defence against an act which does not reasonably cause the apprehension of death or grievous hurt, if done, or attempted to be done, by the direction of a public servant acting in good faith under colour of his office, though that direction may not be strictly justifiable by law. There is no right of private defence in cases in which there is time to have recourse to the protection of the public authorities. Event to which the right may be exercised.- The right of private defence in no case extends to the inflicting of more harm than it is necessary to inflict for the purpose of defence. Explanation 1 : A person is not deprived of the right of private defence against an act done, or attempted to be done, by a public servant, as such, unless he knows or has reason to believe, that the person doing the act is such public servant. Explanation 2 : ... ... .... 21. In view of the aforesaid facts, it is not possible to accept that the accused did not know that PW 1 was a public servant or that he was a police officer. Hence, the benefit of right of private defence which the learned Judge gave to the accused could not have been granted. The finding of the learned trial Judge on this issue is absolutely perverse. 22. Having a bearing on the aforesaid main controversy and also having a bearing on the question whether the acquittal granted by the trial Court in respect of the offences under the Arms Act and the Bombay Police Act is legal, Mr Shethna, learned counsel for the respondent-accused has made the following submissions :(i) The seizure of the weapons was in violation of the provisions of Sections 47 and 165 Cr.PC. (ii) Neither of the panch witnesses has supported the prosecution case. (iii) The FSL report is submitted in response to the letter dated 29.10.1984, but no explanation is offered as to whether the muddamal articles were kept in safe custody between 2.10.1984 and 29.10.1984. 23. As far as the provisions of Section 47 Cr.PC are concerned, sub-section (1) thereof enjoins a duty upon the owner or occupier of the house into which the police officer is going to enter, to allow him free ingress and afford all reasonable facilities for a search therein. Sub-section (2) provides that if ingress to such place cannot
Indian Kanoon - http://indiankanoon.org/doc/1090813/ 10

State Of Gujarat vs Kharwa Hiralal @ Iku Gagan on 11 September, 2003

be obtained, it shall be lawful in any case for a person acting under a warrant and in any case in which a warrant may issue, but cannot be obtained without affording the person to be arrested an opportunity of escape, for a police officer to enter such place and search therein, and in order to effect an entrance into such place, to break open any outer or inner door or window of any house or place, whether that of the person to be arrested or of any other person, if after notification of his authority and purpose, and demand of admittance duly made, he cannot otherwise obtain admittance. Section 165 Cr.PC reads as under :"Search by police officer. 165. (1) Whenever an officer in charge of a police station or a police officer making an investigation has reasonable grounds for believing that anything necessary for the purposes of an investigation into any offence which he is authorised to investigate may be found in any place within the limits of the police station of which he is in charge, or to which he is attached, and that such thing cannot in his opinion be otherwise obtained without undue delay, such officer may, after recording in writing the grounds of his belief and specifying in such writing, so far as possible, the thing for which search is to be made, search, or cause search to be made, for such thing in any place within the limits of such station. (2) A police officer proceeding under sub-section (1), shall, if practicable, conduct the search in person. (3) If he is unable to conduct the search in person, and there is no other person competent to make the search present at the time, he may, after recording in writing his reasons for so doing, require any officer subordinate to him to make the search, and he shall deliver to such subordinate office an order in writing, specifying the place to be searched, and so far as possible, the thing for which search is to be made; and such subordinate officer may thereupon search for such thing in such place. (4) ... ... ... ... ... (5) ... ... ... ... ... 24. As far as the first submission is concerned, Mr KC Shah, learned APP has rightly submitted that Section 165 Cr.PC would come into operation when a police officer goes for making a search of a thing necessary for the purposes of any investigation. In the instant case, the team led by SDPO Mr Vir of which complainant SN Mehta, PSI, was a member, had specifically gone to arrest the two accused who were the out of the six accused in the offence registered at CR No. 188 of 1984. They had not gone to the house of Mulji Govind for the purpose of searching any article as such. They had gone for arresting the accused who were involved in a cognizable offence and, therefore, the provisions of Section 41(1)(a) Cr.PC were applicable and not of Section 165. In the facts of the present case, as per the oral evidence of the police officers and the constables, the doors and the windows of the house were closed with the result that it was not possible for the police to enter the house of Mulji Govind. It is true that the police officer could have knocked on the door for securing admittance but any such attempt would have merely alerted the accused and given them an opportunity to escape from the terrace where they were sleeping as there were houses in the neighbourhood and the accused could have jumped on to the terraces/roofs of the other houses. Merely because there were police and SRP constables surrounding the house of Mulji Govind, it was not obligatory for the police to first knock on the door and enter the house. Such process would have consumed quite a bit of time and allowed the accused to escape. As already pointed out above, the provisions of sub-section (2) of Section 47 Cr.PC. are enabling provisions and there is no duty cast on the police officers to resort to that mode of entering a house when the emergent situation required the police to enter the terrace by climbing up the ladder. In view of the above findings, the reasoning of the learned trial Judge that the seizure of weapons was in violation of Section 165 Cr.PC. must be held to be perverse. In any view of the matter, as per the settled legal position as per the decision of the Apex Court in State of Maharashtra vs. Natwarlal, AIR 1980 SC 593, even
Indian Kanoon - http://indiankanoon.org/doc/1090813/ 11

State Of Gujarat vs Kharwa Hiralal @ Iku Gagan on 11 September, 2003

if the search is illegal, then also, it will not affect the validity of the seizure and further investigation by the police authorities. The learned trial Judge committed a serious error of law in not applying even this legal principle. 25. Coming to the second argument that the seizure of the weapons cannot be believed because the panch witnesses have not supported the prosecution case, it will be useful to refer to the recent decision of a Division Bench of this Court in Vinugiri Motigiri vs. State of Gujarat, 2002(1) GLH 176 wherein the Division Bench relied upon the principles laid down by the Apex Court in Modan Singh vs. State of Rajasthan, AIR 1978 SC 1511 that if the evidence of the investigating officer who recovered the material objects is convincing, the evidence as to recovery need not be rejected on the ground that seizure witnesses do not support the prosecution version. In the said decision, the Apex Court observed that it is an archaic notion that actions of the police officer should be approached with initial distrust and that is is not a legally approvable procedure to presume the police action as unreliable to start with, and to jettison such action merely for the reason that police did not collect signatures of independent persons in the documents made contemporaneous with such actions. There the Apex Court even observed that when a police officer gives evidence in Court that a certain article was recovered by him on the strength of the statement made by the accused, it is open to the Court to believe the version to be correct if it is not otherwise shown to be unreliable. Apart from the grave error committed by the learned trial Judge in not believing the prosecution version supported by eye witness account of an SDPO, a PSI and three constables, for no cogent reason, the learned trial Judge seriously erred in not appreciating that if the recovery of an article on the strength of the statement made by the accused can be accepted as legal evidence, even with the panch witness turning hostile, when a police officer gives such evidence in the Court; the case of the police officer giving evidence in the Court that certain article was recovered by him from the accused on the spot where the incident in question took place in presence of the police officer, the case stands on a much higher footing. In the instant case, when the complainant-PSI as well as the three constables gave oral evidence stating that accused No.2 had assaulted the PSI with his knife and accused No.1 had obstructed the arrest of accused No.2 with a pistol in his hand, such evidence is required to be accepted when nothing is shown by or on behalf of the defence as to why their evidence be considered to be unreliable. 26. The contention that absence of any witness from the neighbourhood affects the credit worthiness of the police witnesses is merely required to be stated to be rejected as it was early morning hours and no person in the neighbourhood would come out of the house even though there was a pistol shot, in view of the involvement of the accused in a serious offence just about a month before the date of the incident. 27. Mr Shethna has made an attempt to submit that the entire episode was got up to enable PSI SN Mehta to obtain a reward. The submission is too far fetched to deserve any serious consideration. Merely because Mr Vir, SDPO stated that although PSI SN Mehta himself was not the Investigating Officer in charge of the offence registered at CR No. 188 of 1984, but his signature was obtained on the panchnama in order to enable him to get a reward, it did not mean that the entire incident was got up to enable PSI SN Mehta to earn a reward. Mr Vir, SDPO who was the supervising officer for the offence registered at CR No. 188 of 1984 found that the act of bravery shown by PSI Mehta was so exemplary and likely earn him a reward or a prize and, therefore, his presence at the site may be shown in the form of documentary evidence by requiring him to sign the panchnama as having been drawn in his presence. This explanation cannot be stretched to mean that the entire incident was got up merely to enable Mr Mehta to earn a reward. It is also required to be noted that althoroughout it is the prosecution case that it was PSI SN Mehta who received the information in the early morning hours of 2.10.1984 and it was he who referred the matter to the superior officers, DSP and SDPO, and it was Mr Mehta who risked his own life to arrest the accused who were absconding in connection with the offence punishable under Section 302 IPC and other provisions. Hence, the anxiety on the part of SDPO Mr Vir to obtain the signature of PSI SN Mehta on the panchnama was quite legitimate and valid and no exception can be taken to the same merely to support the lame defence urged on behalf of the accused.
Indian Kanoon - http://indiankanoon.org/doc/1090813/ 12

State Of Gujarat vs Kharwa Hiralal @ Iku Gagan on 11 September, 2003

28. Lastly coming to the question about the period between 2.10.1984 and 29.10.1984 for which no explanation is offered by the prosecution about the custody of the muddamal articles, this aspect need not detain us for the simple reason that the prosecution had relied on the FSL report merely in order to show that the empty cartridge which was recovered from the terrace was fired from the same pistol (Exh. 8) which was recovered from accused No.1. This part of the evidence would have had relevance in connection with the offence punishable under Section 307 IPC. However, since we have already held that accused No. 1 cannot be held to be guilty of the said offence, it is not necessary to dilate on this issue any further. Nonetheless the facts found from the evidence of five police witnesses clearly indicate that respondent No. 1 did possess the pistol which was recovered from him on the spot, the offence punishable under Section 25(1)(a) of the Arms Act, 1959 is clearly established beyond reasonable doubt. 29. Reliance placed by the defence on the decision dated 1.12.1993 of a Division Bench of this Court in Criminal Appeal No. 724 of 1989 is misconceived because it was a case in connection with the offence punishable under Section 8 read with Section 20 of the Narcotic Drugs and Psychotropic Substance Act, where the register for muddamal articles was not produced and there was a doubt raised and the Court held that the prosecution had not established the fact that what was seized was the same which was sent for analysis to the FSL. In the facts of the present case, however, PSI Mehta as well as the three constables who had entered the terrace had themselves seen accused No. 2 with the knife and accused No. 1 with the pistol and both the articles were seized from the respective accused and all the five witnesses including the SDPO also identified the same before the Court. In this view of the matter, there was no reasonable doubt about the identity of the muddamal articles. 30. This Court is conscious of the principles governing the acquittal appeal that the judgment of acquittal rendered by the trial Court is not be reversed merely because the Appellate Court takes a different view of the matter on re-appreciation of the evidence. This Court has already pointed out the grave error of law committed by the learned trial Judge in rejecting credible eye witness account of as many as five police personnel merely because the two panch witnesses have not supported the prosecution version and thus overlooking the principle laid down in Modan Singh vs. State of Rajasthan, AIR 1978 SC 1511. The learned trial Judge has also committed a grave error by applying the provisions of Section 165 Cr.PC. which are not applicable when the police officer is exercising his powers of arrest under Section 41 Cr.PC. Many findings of fact given by the learned trial Judge are perverse as already indicated in the foregoing discussion. 31. In view of the above discussion, we hold accused No. 1 to be guilty of the offences punishable under Section 186, 224, 225 and 353 IPC and also of the offence punishable under Section 25(1)(a) of the Arms Act. The order passed by the learned trial Judge acquitting respondent No.1 for the offence punishable under Section 307 IPC is hereby confirmed. 32. Notice to accused No.1 for hearing him on the question of sentence. Mr KJ Shethna, learned counsel appearing for the accused waives service of notice and states that his client-accused No.1 will appear before this Court on 16.9.2003 at 11.00 AM for hearing on the question of sentence. Sd/[D.K.TRIVEDI, J.] Sd/[M.S.SHAH, J.]
Indian Kanoon - http://indiankanoon.org/doc/1090813/ 13

State Of Gujarat vs Kharwa Hiralal @ Iku Gagan on 11 September, 2003

16th September 2003 33. In response to the notice issued by this Court for hearing the accused on the question of sentence, respondent No.1 (original accused No. 1) is present before the Court and respondent No.1 and his learned counsel Mr KJ Shethna have made submissions on the question of sentence. Affidavit of respondent No.1 is also filed today wherein he has stated that he is running a transport business and that his business income for assessment year 2002-03 was Rs.3,25,000/-, that he is the sole proprietor of the said business run in the name and style of Yogeshwar Roadways at Porbandar and that there is nobody else who can look after the said business or the family as his brother-original accused No.2 passed away during pendency of the appeal. Respondent No. 1 is aged 51 years with a family of three daughters, out of whom only one is married and five sons, out of whom only one is married and the rest are studying in college/school. It is also stated that respondent No. 1 is a trustee of Shree Porbandar Kharva Vidyarathi Sangh Trust. Respondent No. 1 is also President of the Porbandar Municipality from 21.7.2002 onwards. Respondent No. 1 was Municipal Councilor from January, 1984 to December, 1988, May 1989 to May 1994 and from January 1995 onwards. Respondent No. 1 was also Vice-President of the said Municipality from 16.1.1999 to 15.1.2000 and the Chairman of its executive committee for one year. It is also stated that respondent No. 1 was arrested in the present case on 2.10.1984 and was in jail as an undertrial prisoner till the date of judgment which was rendered on 30.9.1985. 34. The learned counsel for respondent No.1 has further submitted that no injury was caused to any of the witnesses, respondent No. 1 is already acquitted of the offence punishable under Section 307 IPC in the present case and is also acquitted of the offence registered at CR No. 188 of 1984 in connection with which he was sought to be arrested on the date of the incident i.e. 2.10.1984. The learned counsel has also placed reliance on the decision of a learned Single Judge of this Court in State vs. Brahmin Babulal Haribhai, 1997 (3) GLR 1956 wherein the accused was sentenced to undergo imprisonment for only one month even though he was convicted for the offence punishable under Section 25(1-B) of the Arms Act, 1959. 35. On the other hand, Mr KC Shah, learned APP has submitted that in the present case, respondent No. 1 was not found to be merely in passive possession of a fire arm lying in his house, but was found possessing and using the fire arm in obstructing the police officer arresting the accused in connection with an offence which was punishable under Section 302 IPC and, therefore, apart from the sentence for the offence punishable under Section 25(1)(a) of the Arms Act, respondent No. 1 is also convicted of the offence punishable under Section 225 IPC and, therefore, liable to be sentenced to imprisonment which may extend upto seven years. It is submitted that since the accused was being arrested in connection with the offence registered at CR No. 188 of 1984 which was punishable under Section 302 IPC (which offence was punishable with death) and, therefore, the offence of obstructing the arrest attracted the 3rd Clause in Section 225 IPC and consequently the accused is liable to be punished with imprisonment upto seven years and is also liable to fine. It is further submitted by the learned APP that the accused was holding a responsible public office of councillor of a municipality when he was involved in the offence punishable under Section 302 IPC in August 1984 and when he was sought to be arrested on 2nd October 1984 in connection with the said offence. The accused obstructed with a fire arm the police officer arresting him and a co-accused and, therefore, the offence was very grave and the maximum sentence is required to be awarded. The learned APP further submitted that Mayur, the eldest son of the accused, is aged 26 years and is married and, therefore, certainly he can look after the business as well as the family of the accused. The learned APP has further relied on the decision of the Apex Court in Paras Ram vs. State of Haryana, (1992) 4 SCC 662, wherein the Apex Court imposed the sentence of rigorous imprisonment of one year for the offence punishable under Section 25(1-B)(a) of the Arms Act after noting that the law has provided minimum sentence of one year and maximum sentence of three years for the said offence.
Indian Kanoon - http://indiankanoon.org/doc/1090813/ 14

State Of Gujarat vs Kharwa Hiralal @ Iku Gagan on 11 September, 2003

36. Having regard to the fact that respondent No.1 was holding a responsible public office of councillor of a Municipality and that not only the offence was committed at Porbandar, the birth place of Mahatma Gandhi, but that too on 2nd October which is the birth date of Mahatma Gandhi, no leniency need be shown to respondent No.1. However, considering the facts that no injury was caused to any person and that the incident in question had taken place in the year 1984 and no other adverse material for all these years is brought to the notice of the Court, it appears to the Court that the ends of justice would be met if, for the offence punishable under Section 225 IPC respondent No. 1 is sentenced to undergo rigorous imprisonment for a period of three years with a fine of Rs.5,000/-, in default simple imprisonment for one year and for the offence punishable under Section 25(1)(a) of the Arms Act, 1959, sentence of rigorous imprisonment for three years with a fine of Rs.5,000/-, in default simple imprisonment for a period of one year, is imposed. 37. Accordingly, the following order is passed :ORDER The appeal against respondent No.2-Kharwa Jasu Gagan has abated. The appeal against respondent No.1 is partly allowed. Respondent No.1-original accused No. 1, Kharwa Hiralal @ Iku Gagan, is convicted of the offences punishable under Sections 186, 224, 225 and 353 IPC and also of the offence punishable under Section 25(1)(a) of the Arms Act, 1959. For the offence punishable under Section 225 IPC, respondent No.1 is sentenced to rigorous imprisonment for a period of three years with a fine of Rs.5,000/-, in default simple imprisonment for one year. For the offence punishable under Section 186 IPC, respondent No. 1 is sentenced to rigorous imprisonment for three months. For the offence punishable under Section 224 IPC, respondent No. 1 is sentenced to rigorous imprisonment for two years. For the offence punishable under Section 353 IPC, respondent No. 1 is sentenced to rigorous imprisonment for two years. For the offence punishable under Section 25(1)(a) of the Arms Act, 1959, respondent No. 1 is sentenced to three years rigorous imprisonment with a fine of Rs.5,000/-, in default simple imprisonment for one year. It is directed that all the above sentences shall run concurrently and respondent No. 1 shall be given set off for the period of custody already undergone by him as an undertrial prisoner. The order passed by the learned trial Judge acquitting respondent No. 1 for the offence punishable under Section 307 IPC is hereby confirmed. The order passed by the learned trial Judge for disposal of the muddamal is also hereby confirmed. 38. At this stage, Mr KJ Shethna, learned counsel for respondent No.1 prays for three months time to surrender. Respondent No.1, who is also present before the Court, states that the validity period of his passport held by him earlier has already expired and that he has not applied for renewal and that if time to surrender is granted, he will not leave the State of Gujarat except for the purposes of going to Delhi in connection with the appeal which he proposes to file. 39. In the facts and circumstances of the case and the above statement, respondent No.1 is granted time to surrender upto 17th November, 2003. Copy of this judgment be sent to the Secretary, Home Department, Government of Gujarat and also to the Secretary, Urban Development Department, Government of Gujarat.

Indian Kanoon - http://indiankanoon.org/doc/1090813/

15