JELUSINH GALABJI THAKOR AND 6 ORS. VS STATE OF GUJARAT

Case Analysis

JELUSINH GALABJI THAKOR AND 6 ORS. VS STATE OF GUJARAT

February 28, 2025

Author- Pranali Chintaman Padwe, RTMNUs Dr. Babasaheb Ambedkar College of Law (main branch) Nagpur, Maharashtra

CASE DETAILS

i) *Judgement Cause Title / Case Name*	Jelusinh Galabji Thakor And 6 Ors. vs State Of Gujarat
*ii)* *Case Number*	Criminal Case No. – 55 of 1995
*iii)* *Judgement Date*	22 February 2007
*iv)* *Court*	Gujrat High Court
v) *Quorum / Constitution of Bench*	R.P. Dholakia, M.D. Shah
*vi)* *Author / Name of Judges*	M. D. Shah
*vii)* *Citation*	Criminal Case No 55 of 1995,
*viii)* *Legal Provisions Involved*	The Indian Penal Code 1860 Ss.147,148,149,302,307,323,324,325,504 The Criminal Procedure Code 1973 Ss. 313,428 The Bombay Police Act 1951 s135

INTRODUCTION AND BACKGROUND OF JUDGEMENT

In India, a riot is a criminal offense; mainly it’s a result of an unlawful assembly; it distribution peace and tranquillity among people. Section 147 and 148 of Indian Penal Code 1860 deals with the riot and section 149 of The Indian Penal Code 1860 deals with the unlawful assembly. The case of riot or unlawful assembly has been tried by the court of Judicial Magistrate First Class or Session court ( when the offender is convicted of culpable homicide or murder).

Riot – As per Indian Criminal law “Whenever force or violence is used by an unlawful assembly, or by any member thereof, in the prosecution of the common object of such assembly, every member of such assembly is guilty of the offense of rioting”[1]

Unlawful assembly – “Gathering of persons for the purpose of committing either a crime involving force or a noncriminal act in a manner likely to terrify the public.”[2]

The Judge in the case of Jelusinh Galabji Thakor And 6 Ors. Vs State Of Gujarat states that to prove prima facie unlawful assembly following three conditions must be established

There must be an unlawful assembly of five or more persons,
The assembly must have a common object
The common object must be to commit one of the five illegal objects specified in Section 141, IPC”.[3] And the mere free fight between two groups does not amount to riot and unlawful assembly

FACTS OF THE CASE

Factual Background of the Case:

The accused and the victims were residing at village Dhanpura, Taluka Deesa, District Banaskantha. The accused, no.4, was used to slaughter the goat and sell the mutton. On 16-11-1994, when Moksingh, son of Hathesingh, went to purchase the mutton, a sudden altercation happened between them because accused no.4 had refused to sell the mutton to him.

On 18-11-1994, the complainant Ranchodbhai Navaji and Hathesingh went to attend the crematory to attend the funeral ceremony of one Gajraben wife of Thakore Agarsing Nathusing and accused Jetuji Galabji, Ladhsingh Galabji and Tejsingh Gamansingh were also present there.

After the crematory three accused met the complainant and the complainant told them not to create any brawl on the incident of refusal of mutton and three accused went to their home and the complainant and his brother proceeded toward them however, Hathesingh ahead of the complainant and when Hathesingh was near to the shop of Babar Nagi the accused were abusing the Hathesingh and Madarsingh Navaji, Hathesingh ask them not to abuse them but they got furious and accused Magansingh Galabji inflicted two blow of the dharia on the head of the Hathesingh, when the complaint heard shouts and immediately rush to the spot he found the accused with deadly weapons like sword, dharia, sickle and sticks.

“When the Madarsingh Navaji was intervened to rescue Hathesingh the accused, Megan Singh inflicted two blow of sword on the head of Madarsingh, to save the Hathesingh and Madarsingh the two sons of complainant that are Hirsingh and RatanSingh wife of complainant Jababen daughter Santubai and nephew Mobatsingh rushed towards the scuffle that took place at that time the accused Maganji Galabji inflicted dharma blow on the head of hissing and the accused Ladhsingh gave stick blow on the neck of hiring the accused Ladhsingh also gave stick blow on the leg of Taraben and also on the left hand wrist of jabbed the accused Maganji Galabji inflicted dharma blow on the right hand of jabbed the accused Prabhatsingh inflicted dharma blow on the left hand wrist of Mobatsing gathering the accused Jetsing Galabji inflicted a sickle blow on the head of Santubai the accused Tejsingh Gamansingh gave stick blow on left hand of Ranjusingh the accused harassing teasing gave stick blow on the back side of the body of Mobatsingh”[4] Other people also came there to help them, and avast the scuffle that took place, and all injured persons were shifted to the civil hospital, Dessa. Hathesingh died during the treatment.

Procedural Background of the Case:

The complaint was lodged against all the accused by the Ranchodbhai Navaji before PSO, Dessa Rural Police Station, and CR.No. 279 of 1994 was registered at Dessa Ruler Police Station for the offence punishable under sections 147, 148, 149, 302, 307, 323, 324, 325, 504, of IPC and section 135 of the Bombay Police Act. Thereafter, the investigation started; the investigation officer recorded the statement of a witness, drew a panchanama of the case, arrested the accused, and sent all the weapons used during a scuffle to the forensic science laboratory for analysis.

The charge sheet was submitted on 14-02-1995 before J. M. F. C., Dessa, and the offense registered as a criminal case of 526 of 1995, but the charges were imposed under Sections 302 and 307 of IPC also, which were exclusively triable by the session court, thus on 27-03-1995 the learned J. M. F. C. Judge committed the case to the additional and session judge where it was registered as session case no. 550 of 1995.

On the same day, i.e. 18-11-1994, the accused, Maganji Galabji, also lodged the complaint on the same incident as CR.No. 280 of 1994 before the PSO, Dessa Ruler Police Station, when the charge sheet came before the learned J. M. F. C. The learned judge committed the case to the Additional Session Judge under session case no. 111 of 1995 and both cases were tried by the learned Additional Session Judge, Palanpur.

The accused pleaded non-guilty before the court when the statement of the accused was recorded under section 313 of the Criminal Procedure Code, as per their statements the Dhuksingh had been attacked by the complaint and injured the witness when Dhuksingh and his wife shouted for help they went there to rescue Dhuksingh but they also attacked and injured by the complaint sides.

“The prosecution examined all 18 witnesses and Panchnama, After hearing the learned A.P.P., the Advocate for the accused, and after appreciating the oral as well as documentary evidence, the learned Additional Sessions Judge held that the prosecution has established the charges leveled against the accused beyond a reasonable doubt, and therefore, passed the judgment and order of conviction”[5] The present appeal was against the judgment given by the Additional session judge.

LEGAL ISSUES RAISED

Whether a free fight between two groups will amount to riots and /or unlawful assembly?
Whether death caused by a single blow of dharma will be punishable under section 302 of IPC?

APPELLANT’S ARGUMENTS

The counsels for Petitioner / Appellant submitted that
The Hathesingh and injured witness had aggression to take revenge for the quarrel that happened two days before the incident in question between the son of the deceased and the accused no. 4, the appellant used self-defense only against the deceased and the injured witness
Secondly, the eyewitnesses examined by the prosecution are all interested or related witness and their statements are conflicted with medical evidence which creates doubt about their statements,
The counsel for the appellant also submitted that it was a free fight between them and injuries received by both parties; thus, it will not fall under section 149 of the IPC. Also, there is only one blow inflicted by the accused No. 2, and thus the case would not fall under Section 302 of the IPC but would be under Section 304 Part II of the IPC

RESPONDENT’S ARGUMENTS

The counsels for Respondent submitted that the judgment of conviction of the accused-appellant was given by the Additional Session Judge, Palanpur, and submitted that the evidence of all the eyewitnesses inspires confidence and there is no reason to discard such evidence. He prayed to dismiss this appeal.

RELATED LEGAL PROVISIONS

Indian Penal Code 1860

Section 147. Punishment for rioting – “Whoever is guilty of rioting, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both”.[6]
Section 148. Rioting, armed with a deadly weapon –“Whoever is guilty of rioting, being armed with a deadly weapon or with anything which, used as a weapon of offense, is likely to cause death, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both”.[7]
Section 149. Every member of unlawful assembly is guilty of the offense committed in the prosecution of the common object. – “If an offense is committed by any member of an unlawful assembly in prosecution of the common object of that assembly, or such as the members of that assembly knew to be likely to be committed in prosecution of that object, every person who, at the time of the committing of that offense, is a member of the same assembly, is guilty of that offense”.[8]
Section 302. Punishment for murder. – “Whoever commits murder shall be punished with death or imprisonment for life, and shall also be liable to fine”.[9]
Section 307. Attempt to murder –“Whoever does any act with such intention or knowledge, and under such circumstances that, if he by that act caused death, he would be guilty of murder, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; and if hurt is caused to any person by such act, the offender shall be liable either to imprisonment for life or to such punishment as is hereinbefore mentioned.
Attempts by life-convicts.—When any person offending under this section is under sentence of imprisonment for life, he may, if hurt is caused, be punished with death”[10]
Section 323. Punishment for voluntarily causing hurt. – “Whoever, except in the case provided for by section 334, voluntarily causes hurt, shall be punished with imprisonment of either description for a term which may extend to one year, or with fine which may extend to one thousand rupees, or with both”.[11]
Section 324. Voluntarily causing hurt by dangerous weapons or means– “Whoever, except in the case provided for by section 334, voluntarily causes hurt by means of any instrument for shooting, stabbing or cutting, or any instrument which, used as a weapon of offense, is likely to cause death, or by means of fire or any heated substance, or by means of any poison or any corrosive substance, or by means of any explosive substance or by means of any substance which it is deleterious to the human body to inhale, to swallow, or to receive into the blood, or by means of any animal, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both”.[12]
Section 325. Punishment for voluntarily causing grievous hurt – “Whoever, except in the case provided for by section 335, voluntarily causes grievous hurt, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine”[13]
Section 504. Intentional insult with intent to provoke breach of the peace – “Whoever intentionally insults, and thereby gives provocation to any person, intending or knowing it to be likely that such provocation will cause him to break the public peace, or to commit any other offense, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both”.[14]

The Criminal Procedure Code 1973

Section 313. Power to examine the accused – (1) In every inquiry or trial, for the purpose of enabling the accused personally to explain any circumstances appearing in the evidence against him, the Court—

(a) may at any stage, without previous warning the accused put such questions to him as the Court considers necessary;

(b) shall, after the witnesses for the prosecution have been examined and before he is called on for his defense, question him generally on the case: Provided that in a summons case, where the Court has dispensed with the personal attendance of the accused, it may also dispense with his examination under clause (b).

(2) No oath shall be administered to the accused when he is examined under sub-section (1).

(3) The accused shall not render himself liable to punishment by refusing to answer such questions, or by giving false answers to them.

(4) The answers given by the accused may be taken into consideration in such inquiry or trial, and put in evidence for or against him in any other inquiry into, or trial for, any other offense for which such answers may tend to show he has committed.

(5) The Court may take the help of the Prosecutor and Defence Counsel in preparing relevant questions which are to be put to the accused and the Court may permit the filing of written statement by the accused as sufficient compliance of this section”.[15]

Period of detention undergone by the accused to be set off against the sentence of imprisonment.—

“Where an accused person has, on conviction, been sentenced to imprisonment for a term, not being imprisonment, in default of payment of fine, the period of detention, if any, undergone by him during the investigation, inquiry or Trial of the same case and before the date of such conviction, shall be set off against the term of imprisonment imposed on him on such conviction, and the liability of such person to undergo imprisonment on such conviction shall be restricted to the remainder if any, of the term of imprisonment imposed on him: provided that in cases referred to in section 433A, such period of detention shall be set off against the period of fourteen years referred to in that section”.[16]

The Bombay Police Act, 1951

Section 135.- Penalty for contravention of rules or directions under sections 37, 39 or 40. – “Whoever disobeys an order lawfully made under sections, 37, 39 or 40 or abets the disobedience thereof shall, on conviction, be punished-

If the order disobeyed or of which the disobedience was abetted was made under sub-section (1) of section 37 or under section 39, or section 40, with imprisonment for a term which may extend to one year but shall not except for reasons to be recorded in writing, be less than four months and shall also be liable to fine, and
- If the said order was made under sub-section (2) of section 37, with imprisonment for a term which may extend to one month or with a fine which may extend to two thousand five hundred rupees; and
- If the said order was made under sub-section (3) of section 37, with a fine which may extend to two thousand five hundred rupees”.[17]

JUDGEMENT

The judgment dated 13 August 1997, “the learned Sessions Judge, the learned Sessions Judge, on the one hand, held that there was a free fight between the parties and on the other hand, the learned Sessions Judge held that as the persons from the complainant’s side received more injuries, the accused persons were the aggressors, and accordingly, the accused were held to be members of the unlawful Assembly”.[18]And no other reason given by the session court for imposing section 149 of IPC, the sudden free fight between two parties with the mutual attack will not attract section 149 of IPC, and thus it was not an unlawful assembly or riot and the appellant-accused cannot be liable for an offense punishable under section 149 as well as section 147 and section 148 of IPC, the accused would be liable only for their individual attack on the injured witness.

The honorable judge in the present case rendered the judgment of the Honourable Supreme Court in the case “ Ishwarsingh v. The State of Uttar Pradesh wherein it has been held that there is no common object in a ‘free fight’ and the accused in such a case cannot be convicted by having recourse to Section 149, IPC.”[19]

“we opinion that the conviction of all the appellants for the offense punishable under Section 147 read with Section 149 and Section 148 read with Section 149, IPC is liable to be quashed and set aside. There being no appeal preferred by the State the acquittal of all the.”[20] The conviction of the appellant-accused under other offenses will be as it is

OBITER DICTA –

The Appellant court judge had mentioned: “even if a major portion of the evidence of witnesses is found to be deficient, in case the residue is sufficient to prove the guilt of the accused, Conviction can be maintained.”[21]

CONCLUSION

If there was a free fight Between both parties, thus just because more injuries were inflicted on one side it could not be considered an unlawful assembly and if it was not an unlawful assembly it would not be a riot at all

[1] See The Indian Penal Code, 1860, § 146

[2] Britannica https://www.britannica.com/topic/unlawful-assembly (last visited January 21,2025)

[3] Indian Kanoon, ¶ 9 https://indiankanoon.org/doc/1930349/

[4] Indian Kanoon, ¶ 2.1 https://indiankanoon.org/doc/1930349/

[5] Indian Kanoon, ¶ 4 https://indiankanoon.org/doc/1930349/

[6] See The Indian Penal Code, 1860, §147

[7] See The Indian Penal Code, 1860, §148

[8] See The Indian Penal Code, 1860, §149

[9] See The Indian Penal Code, 1860, §302

[10] See The Indian Penal Code, 1860, §307

[11] See The Indian Penal Code, 1860, §323

[12] See The Indian Penal Code, 1860, §324