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2015 DIGILAW 1198 (GUJ)

Ajaykumar v. State of Gujarat

2015-11-23

RAJESH HSHUKLA

body2015
JUDGMENT Rajesh H. Shukla, J. 1. Present appeal No. 185 of 2009 is directed against the impugned judgment and order rendered in Sessions Case No. 51 of 2008 by the learned Additional Sessions Judge, City Civil and Sessions Court, Ahmedabad dated 11.08.2008 recording conviction of the of the appellant-original accused No. 1 for the offence punishable under Section 394 of the IPC and acquittal for the offence punishable under Section 397 of the IPC. The appellant-original accused No. 1 has been sentenced to undergo imprisonment of 10 years for the aforesaid offence punishable under Section 394 of the IPC with fine of Rs. 10,000/- as per the impugned judgment and order. 2. The facts of the case briefly summarized are as follow: The complainant-victim was the passenger travelling in the train, when there is the appellant-original respondent accused No. 1 was serving as ticket-checker is said to have quarreled with the complainant asking the complainant first to give details and the documents and when he has tendered the same, there was some demand for money, which was declined by the complainant, which was resulting in the altercation. Thereupon, the appellant-accused has said to have assaulted complainant with knife, and when other passengers gathered and the complainant was taken to the railway police station and thereafter to the civil hospital. Thus, the aforesaid complaint being registered as FIR I-C.R. No. 11/2005 for the offences punishable under Section 394 and 397 of the IPC. 3. After investigation was over, the charge-sheet was filed and as the offence was triable by the court of Sessions, the case was committed to the Sessions Court. 4. In order to bring home the charges levelled against the appellant-original accused, the prosecution examined the witnesses including the P.W. No. 6-Dr. Kanodiya, who treated the victim. The prosecution has also produced documentary evidence which shall be referred to in the judgment hereinafter. 5. After recording the evidence of the prosecution witnesses was over, the learned Additional Sessions Judge, City Civil and Sessions Court, Ahmedabad recorded the further statement of the accused under Section 313 of Code of Criminal Procedure. 6. After hearing the learned APP as well as the learned Advocate for the accused, the learned Additional Sessions Judge, City Civil and Sessions Court, Ahmedabad recorded the conviction of the appellant-accused and sentence as stated hereinabove. 7. 6. After hearing the learned APP as well as the learned Advocate for the accused, the learned Additional Sessions Judge, City Civil and Sessions Court, Ahmedabad recorded the conviction of the appellant-accused and sentence as stated hereinabove. 7. It is this judgment and order which has been assailed on the grounds stated in detail in the memo of appeal, inter alia, that the learned Additional Sessions Judge, City Civil and Sessions Court, Ahmedabad has failed to appreciate the material and evidence on the record. 8. Heard learned Advocate Shri Falguni Trivedi for the appellant-accused and learned APP Shri H.L. Jani for the Respondent-State. 9. Learned Advocate Shri Falguni Trivedi for the appellant-accused No. 1 referred to the charge as well as the testimony of the witnesses including the complainant at Exh. 6 and the testimony of Dr. Kanodiya at Exh. 19. She has pointedly referred to the testimony of Dr. Kanodiya at Exh. 19 and submitted that it has been clearly stated in his testimony that the injury was not life threatening and it was not serous injury. She therefore submitted that it would not attract the offence punishable under Section 397 of the IPC and therefore, the acquittal has been recorded. However, she has stated that the suo motu notice has been issued by the Court culminating into Criminal Revision Application No. 329 of 2009, as to why the appellant-accused should not be convicted for the offence punishable under Section 397 of the IPC. She also referred to the papers and submitted that the appellant-original accused convict has undergone substantial sentence qua the offence punishable under Section 394, for which he was tried in Sessions Case No. 51 of 2009. She also submitted that as the substantial sentence, for which he has been convicted for the offence punishable under Section 394, has undergone by him. She further submitted that as the medical papers does not corroborate the offence punishable under Section 397 of the IPC, the Criminal Revision Application No. 329 of 2009, may not be allowed. 10. Learned APP Shri H.L. Jani for the Respondent-State referred to the jail remarks and submitted that he has been convicted for other offences in other case. She further submitted that as the medical papers does not corroborate the offence punishable under Section 397 of the IPC, the Criminal Revision Application No. 329 of 2009, may not be allowed. 10. Learned APP Shri H.L. Jani for the Respondent-State referred to the jail remarks and submitted that he has been convicted for other offences in other case. However, he has undergone the sentence and while considering the set off and other benefits, he is likely to be released qua the sentence for the offence punishable under Section 394 imposed in the impugned judgment and order in Sessions Case No. 51 of 2008 by the Additional Sessions Judge, City Civil and Sessions Court, Ahmedabad in December, 2015. He has referred to the jail remarks with reference to the other conviction and the sentence which has been undergone and completed. Learned APP Shri Jani also referred to the testimony of the P.W. No. 6-Dr. Kanodiya at Exh. 19, injury certificate at Exh. 20 and medical papers at Exh. 21. He submitted that the complainant was assaulted with knife by the accused on the vital part of the body on the chest and therefore it would attract the offence punishable under Section 397 of the IPC. Learned APP has submitted that opinion of the doctor would be merely medical opinion and it cannot be lost sight of the fact that the injury as suffered on the vital part of the body, which could have been fetal and therefore, the observations made are not justified in recording the acquittal qua the offence punishable under section 397 of the IPC. Therefore, Criminal Revision Application No. 329 of 2009 may be allowed for convicting the present accused for the offence punishable under Section 397 of the IPC. 11. In view of these rival submissions and having perused the entire material and evidence, it is evident that that appellant-accused has been convicted for the offences punishable under Section 394 of the IPC and has been sentenced to undergo RI for 7 years with fine of Rs. 10,000/- and he has been acquitted for the offences punishable under Section397 of the IPC. 10,000/- and he has been acquitted for the offences punishable under Section397 of the IPC. The fact remains that the accused has undergone substantial portion of sentence, as he is likely to be released in December, 2015, after undergoing sentence awarded in the impugned judgment and order passed in Sessions Case No. 51 of 2008 by the Additional Sessions Judge, City Civil and Sessions Court, Ahmedabad. As it transpires from the jail remarks, his sentence qua other offences are independently considered and most of them have been undergone. Therefore, the moot question is that whether Criminal Revision Application No. 329 of 2009 requires consideration or not and whether the appellant-original accused is required to be convicted for the offences punishable under Section 397 of the IPC, where he has been acquitted by the Sessions Court. 12. As it transpires from Section 397 of the IPC, it refers to the robbery or dacoity, with attempt to cause death or grievous hurt (Emphasis supplied). Thus, there has been robbery with attempt to cause death or grievous hurt. In the facts of the case, the victim has survived and therefore, whether the injury caused to him can be termed as grievous hurt or not is required to be considered. The medical evidence in the form of medical case papers at Exh. 21 and testimony of Dr. Kanodiya at Exh. 19 clearly refer to this aspect that the injury was not life threatening or serious. Therefore, Section 320 of the IPC which refers to grievous hurt is required to be considered. It provides that, "320. Grievous hurt:- The following kinds of hurt only are designated as "grievous" Eighthly.- Any hurt which endangers life or which cause the sufferer to be during the space of twenty days in sever bodily pain, or unable to follow his ordinary pursuits. Thus, referring to the medical papers as stated above, it would not attract Section 320 of the IPC, which defines grievous hurt. It is evident that the victim was discharged from the hospital within 7 days and was able to follow his ordinary pursuits. The P.W. No. 6-Dr. Kanodiya in his testimony at Exh. 19 has clearly stated that though the injury was inflicted with knife, it was not serious. Thus, it is not the weapon but the injury which is required to be considered for deciding the acquittal as well as the gravity of the offence. The P.W. No. 6-Dr. Kanodiya in his testimony at Exh. 19 has clearly stated that though the injury was inflicted with knife, it was not serious. Thus, it is not the weapon but the injury which is required to be considered for deciding the acquittal as well as the gravity of the offence. Therefore, considering the aforesaid offence, Criminal Revision Application No. 329 of 2009 with regard to issuance of suo motu notice for conviction instead of acquittal for the offence punishable under Section 397, cannot be allowed. Therefore, as the appellant-accused has also been convicted for offence under Section 394 and has been sentenced for 7 years, for which he has substantially undergone, which does not call for any modification or interference and the conviction recorded by the Sessions Court in the impugned judgment and order deserves to be maintained and stands confirmed. 13. In the circumstances, Criminal Appeal No. 185 of 2009 filed against the conviction for the offence punishable under Section 394 of the Indian Penal Code stands dismissed. The impugned judgment and order of the Sessions Court is hereby confirmed. Criminal Revision Application No. 329 of 2009 arising out of the suo motu notice also deserves to be dismissed and accordingly stands dismissed.