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Gujarat High Court · body

2015 DIGILAW 1123 (GUJ)

Hareshkumar Parmabhai Parmar v. State of Gujarat

2015-10-29

K.M.THAKER

body2015
JUDGMENT K.M. Thaker, J. 1. Heard Mr. Buch, learned advocate for the appellant, and Mr. Dabhi, learned APP for the respondent - State. 2. This appeal is directed against the judgment and order dated 28.1.2010 passed by the learned Sessions Judge, Mehsana in Sessions Case No. 125 of 2009. By the impugned judgment and order, the learned trial Court has convicted present appellant for commission of offence punishable under section 323 of Indian Penal Code and he is sentenced to undergo SI for 6 months and to pay fine of Rs. 500/-. 3. Bereft of other details, the case of the prosecution before the learned trial Court was that, on 14.2.2009 at about 9:00 a.m., the accused - appellant herein abused the complainant in filthy language. The complainant, who resides in Gajanand Society, Mehsana, also hit the complainant with a pipe and the complainant received injury on one finger of his right hand. The prosecution also claimed before the learned trial Court that the accused No. 2 had also hit the complainant with Dhariya. The complainant received injury on finger of his right hand upon being hit by the pipe. At that time, other persons gathered and wife of the complainant also came at the place of incident and that therefore, the accused persons left the place, however, both the accused threatened the complainant that if he crosses their path or comes in their way then they will again hit him and teach him a lesson. The complainant, thereafter, lodged the complaint. The investigation was undertaken. The IO could gather sufficient material to institute proceedings. Consequently, the charge-sheet came to be filed and case was committed to the sessions Court. The learned Sessions Court framed the charge at Exh. 2. The statement of the accused - appellants were recorded. Both the accused persons pleaded not guilty and claimed to be tried. The said two accused persons came to be tried for the offence punishable under Sections 323, 504 and 506(2) read with Section 114 of Indian Penal Code and Section 135 of the Bombay Police Act. The trial was conducted. The prosecution examined eight witnesses including the doctor, who examined and treated the complainant. The prosecution also placed on record seven documents to prove the guilt. The learned trial Court, after inviting all incriminating material and evidence on record to the notice of the accused persons recorded further statement. The trial was conducted. The prosecution examined eight witnesses including the doctor, who examined and treated the complainant. The prosecution also placed on record seven documents to prove the guilt. The learned trial Court, after inviting all incriminating material and evidence on record to the notice of the accused persons recorded further statement. The accused persons did not offer any further reply/explanation except maintaining their denial and claiming that they have not committed any offence. The learned trial Court referred to the deposition by one Mr. J.B. Khamar (Exh. 15) and Dr. Setalwad (Exh. 6). In light of the deposition by Dr. Setalwad - PW No. 1 whose evidence came to be recorded at Exh. 6, the learned trial Court noticed that the complainant had received injury on his first finger. The wound/injury was described by the doctor as CLW of 1/2 cm x 1/2 cm and that the injury was caused by the blunt and hard substance. 3.1 The doctor had recorded history of incident as told to him by the complainant. The Doctor said in his deposition that while mentioning the history of the incident, the complainant narrated that at about 9:00 a.m., the two accused persons had assaulted him with iron pipe and dhariya and during the said scuffle, he received the injury. 3.2 On the basis of the deposition by the doctor and the certificate issued by the doctor, the learned trial Court came to the conclusion that the prosecution had proved the incidence as well as injury to the complainant. 3.3 As mentioned earlier, the learned trial Court also referred to and relied on the deposition of Mr. J.B. Khamar - PW No. 4 whose evidence is recorded at Exh. 15. However, the learned trial Court also found from his deposition that at the time when the incident actually occurred (i.e. when the accused persons allegedly caused assault to the complainant) said Mr. Khamar was not present at the place of incident. 3.4 The learned trial Court also considered the evidence of the complainant's wife i.e. PW No. 5 (whose evidence is recorded at Exh. 16). She described the assault. She mentioned in her deposition that first blow by the appellant missed the complainant and instead it hit the gate, however, the second blow hit the complainant at the finger of his right hand. 16). She described the assault. She mentioned in her deposition that first blow by the appellant missed the complainant and instead it hit the gate, however, the second blow hit the complainant at the finger of his right hand. According to the deposition by the complainant's wife, at that time, persons gathered at the place of incident and the accused persons left the place of incident. She also mentioned in her deposition that the accused No. 2 had come to the place of incident with Dhariya. She also mentioned that while going, both the accused persons threatened the complainant. The learned trial Court has recorded that the panch witness turned hostile. 3.5 The Sessions Court, relied on the evidence of the doctor, the certificate issued by the doctor and the deposition of the complainant's wife, reached to the conclusion that the incident as well as the injury to the complainant are proved and thereby, the prosecution has prove the charge of offence punishable under Sections 323, 504 and 506 of Indian Penal Code. 3.6 So far as accused No. 2 is concerned, the learned trial Court came to the conclusion that the charge of commission of offence is not proved against the accused No. 2. Thereafter, upon considering the submissions by the learned counsel for the prosecution and the accused, the learned trial Court passed the judgment dated 28.1.2010. Vide the said judgment, the learned trial Court convicted the accused No. 1 - present appellant for the offence under Sections 323, 504 and 506(2) of Indian Penal Code and Section 135 of the Bombay Police Act and awarded sentence as mentioned above. 3.7 Aggrieved by the judgment and order by the learned Sessions Court, original accused No. 1 has filed present appeal. 4. Learned counsel for the appellant assailed the impugned judgment claiming that there is no evidence by any independent witness. He also claimed that the panch witnesses are turned hostile. He also submitted that the learned trial Court has relied on the deposition/evidence by the relative/wife of the complainant and that therefore, the conviction based on such evidence would be set aside. 4.1 Learned APP opposed the appeal and the submissions by learned counsel for the appellant - convict. Learned APP submitted that the reasons recorded by the learned trial Court are based on cogent evidence available on record and are in accordance with the relevant provisions. 4.1 Learned APP opposed the appeal and the submissions by learned counsel for the appellant - convict. Learned APP submitted that the reasons recorded by the learned trial Court are based on cogent evidence available on record and are in accordance with the relevant provisions. He also submitted that the learned trial Court has concluded that the prosecution has established the charge of commission of offence and neither the said conclusion about conviction nor the sentence warrant any interference. Learned APP submitted that the appeal may be dismissed. 4.2 In this background, learned advocate for the appellant submitted that this is first offence by the accused and therefore, benefit of probation offender ought to have been granted by the learned trial Court, however, such benefit is not granted by the learned trial Court. He submitted that in the facts of the case and also considering the fact that this is first offence by the accused, this Court may grant benefit of probation under the provisions of the Act. 4.3 Learned counsel for the appellant also tendered an affidavit made by the appellant on 27.10.2015 declaring on oath, inter alia, that any other criminal case is not filed and/or pending against him either before present proceedings or subsequently and he is not involved in any other offence or any illegal activity. The affidavit is taken on record. Alongwith the report, which the probation officer submitted, he i.e. probation officer has also forwarded a copy of the affidavit made by the appellant on similar line, which was submitted to the probation officer. 5. I have considered the judgment and the discussion by the learned trial Court about the evidence on record. The evidence/deposition by the doctor, who treated the complainant and the injury certificate issued by him establishes occurrence of the incident as well as injury to the complainant. Mr. Khamar has, in his deposition/evidence mentioned that some scuffle between the accused persons and the complainant had occurred on 14.2.2009. Though his evidence does not lend any support to actual act of assault by pipe, however, it corroborates the evidence by complainant's wife to the extent that some incident/scuffle occurred on 14.2.2009 which involved the complainant and the appellant. Thus, the deposition/evidence by the wife of the complainant derives support and corroboration from the evidence by the doctor and the deposition by Mr. Khamar. Thus, the deposition/evidence by the wife of the complainant derives support and corroboration from the evidence by the doctor and the deposition by Mr. Khamar. Under the circumstances, there is no reason or justification to disturb the findings and conclusions by the learned trial Court. 6. However, considering the request by learned counsel for the appellant, report by the probation officer is called for. The Court has received the report of the probation officer. 7. Today, learned Court Master was requested to open the seal cover containing the report of the probation officer. The probation officer has prepared the report after verifying the facts on 17.10.2015. Alongwith the report, the probation officer has also forwarded a certificate dated 15.10.2015 issued by the Mehsana City A Division Police Station certifying that any other offence against accused/appellant is not reported. The probation officer has also forwarded an affidavit made by accused No. 1 i.e. present appellant, declaring and stating on oath that except the said case i.e. Sessions Case No. 125 of 2009, any other case or any offence is not registered against him and any other criminal case or any other proceedings are not pending against him. The probation officer has also recorded the statement of the appellant/accused wherein also, the appellant - accused No. 1 has mentioned similar facts. 8. I have considered the report of the probation officer and the attachments to the said report. The report of the probation officer gives out that the conduct of the appellant has been free from any blemish, more particularly during the period after the appellant was enlarged on bail. The probation officer's report also gives out that he is the earning member of his family and his young son is prosecuting his studies. As the only responsible person of the family, he has also to look after his old mother. I have also considered that the injury received by the complainant was simple injury on first finger of his right hand and any other grievous injury was not caused to the complainant. 9. Having regard to the facts and circumstances of the case and upon appreciating the evidence, the conclusion and findings as well as final decision by learned trial Court do not warrant any interference. 9. Having regard to the facts and circumstances of the case and upon appreciating the evidence, the conclusion and findings as well as final decision by learned trial Court do not warrant any interference. The conviction and sentence are required to be confirmed, however, having regard to the report/facts of the case, the request by the learned advocate for the appellant to grant benefit of probation deserves to be accepted. 10. For the reasons recorded in the judgment the Court has today passed following order:-- "10.1 In view of the above, the appeal i.e. Criminal Appeal No. 327 of 2010 is hereby partly allowed. The judgment and order of conviction dated 28.1.2010 passed by learned Sessions Court, Mehsana in Sessions Case No. 125 of 2009 is not disturbed and is hereby confirmed. However, instead of directing the appellant to immediately undergo the sentence of imprisonment awarded by the learned trial Court and confirmed by this judgment, the appellant is given the benefit of probation under the provisions of Probation of Offenders' Act. 10.2 The appellant is directed to execute, within 3 days, a bond of Rs. 15,000/- (Rupees Fifteen Thousand only) under Section 4 of the Probation of Offenders' Act read with Section 361 of the Code of Criminal Procedure, 1973, with one surety of the like amount for a period of 12 months and if the appellant fails to execute the bond as aforesaid, the learned trial Court shall issue a non-bailable warrant of arrest against the appellant to serve the sentence imposed by the learned trial Court. The order of substantive sentence imposed shall remain under suspension till the period of bond i.e. for 12 months after execution of Bond, and it shall become inoperative on completion of such period of 12 months. If there is breach of any of the conditions of bond to be executed under Section 4 of the Probation of Offenders' Act read with Section 361 of the Code of Criminal Procedure, 1973, by the appellant-original convict, the learned trial Court shall be at liberty to issue a non-bailable warrant of arrest against the appellant-original convict to serve the sentence imposed by the learned trial Court. 10.3 The terms of the above mentioned bond to be executed by the appellant shall be settled by the learned trial Court." With the aforesaid clarifications, the appeal being Criminal Appeal No. 327 of 2010 is party allowed. 10.3 The terms of the above mentioned bond to be executed by the appellant shall be settled by the learned trial Court." With the aforesaid clarifications, the appeal being Criminal Appeal No. 327 of 2010 is party allowed. Rule is made absolute to the aforesaid extent. Records and proceedings of the appeal to be sent back to the concerned trial Court.