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2016 DIGILAW 1146 (GUJ)

Chhatrasinh Narsingbhai Damor v. State of Gujarat

2016-06-21

G.B.SHAH

body2016
JUDGMENT : G.B. Shah, J. 1. The present appeal is filed by the appellant-original accused No. 1 being aggrieved and dissatisfied with the judgment and order dated 30.12.2011 passed by the learned Principal Sessions Judge, Dahod, in Sessions Case No. 50 of 2009 whereby original accused No. 1 was convicted and sentenced to undergo rigorous imprisonment for ten years and to pay a fine of Rs. 1,000/-, in default, to suffer further rigorous imprisonment for one year for the offence punishable under section 304 Part-II of the Indian Penal Code ("IPC' for short) and rigorous imprisonment for seven years and to pay a fine of Rs. 500/- in default, to suffer further rigorous imprisonment for six months for the offence punishable under section 326 of IPC. He was, however, acquitted for the offence punishable under sections 302, 324, 323, 504 and 114 of IPC. Both the sentences were ordered to run concurrently. He was given set off for the period undergone in jail. Original accused Nos. 2 and 3 were acquitted of all the charges leveled against them. 2. Short facts of the case of the prosecution are that on 14.9.2009 when father of the complainant-Dilipbhai Ansubhai, Mr. Ansubhai Varsingbhai was returning after eating "Navai" (new product of food) from paternal aunt's house at Shangasar in Kanakuva Village, accused-Chhatrasing Narsing armed with sickle, Nabla Varsingbhai armed with stick and Narsingbhai Valachandbhai caught hold of his father and abused him by uttering words "tane ghadi hagadu" and inflicted sickle blow on upper elbow of left hand. When father of the complainant shouted, the complainant along with his uncle-Mansukhbhai Varsingbhai (deceased), Bhalubhai Varsingbhai, Hemtabhai Motiyabhai and Parvin Parsingbhai ran there and tried to intervene. At that time, accused No. 1-Chhatrasing Narsing inflicted one sickle blow above the elbow of right hand and two sickle blows on wrist and finger of Mansukhbhai Varsingbhai resulted into amputation of his two fingers. When Bhalubhai Varsingbhai tried to intervene, accused No. 1 inflicted stone blow on his shoulder and accused No. 2-Nabla Narsing caused bite injury on the left chest of Hamesh Varsingbhai. The accused thereafter fled from the scene. The injured were thereafter taken to a hospital at Dahod. However, Mansukhbhai Varsingbhai succumbed to the injuries during treatment. A complaint was, therefore, filed against the accused. The accused thereafter fled from the scene. The injured were thereafter taken to a hospital at Dahod. However, Mansukhbhai Varsingbhai succumbed to the injuries during treatment. A complaint was, therefore, filed against the accused. In pursuance of said complaint, investigation started and as there appeared prima facie case against the accused, a charge sheet was filed against the accused persons. 2.1 As the offence was triable exclusively by Court of Sessions, the learned Magistrate committed the case to the Court of Sessions. Thereafter charge was framed against the accused which was read over and explained to the accused. The accused pleaded not guilty to the charge and claimed to be tried. Hence, the prosecution was asked to prove the guilt against the accused. 2.2 To prove the guilt against the accused, prosecution examined following witnesses:- P.W. No. Name of Witness Exhibit No. 1. Dilipbhai Ansubhai Damor 7 2. Dr. Amit Ranjan Chaudhary 15 3. Dr. Ashok Devidas Bachani 21 4. Dr. Amar Bipinchandra Soni 25 5. Ansubhai Varsingbhai Damor 33 6. Bhalubhai Varsingbhai Damor 35 7. Hamesh Varsingbhai Damor 36 8. Nanabhai Muliabhai Sangod 37 9. Parubhai Naniabhai Sangod 39 10. Hamirbhai Kehrabhai Bamania 41 11. Ransingbhai Ditabhai Sangada 42 12. Kalubhai Mansingbhai 44 13. Chhaganbhai Narsubhai Palas 45 14. Bharatsinh Jhurharbhai 47 15. Rameshbhai Saburbhai 49 16. Jorsingbhai Hursingbhai 50 17. Narvatbhai Namlabhai Parmar 51 18. Laljibhai Maganbhai 54 19. Mahipatsinh Rupsinh Jhala 55 20. Haribhai Limbabhai Sangada 59 21. Anopsinh Valjibhai Vahoniya 66 2.3 The prosecution also relied on following documentary evidence:- S. No. Description Exhibit No. 1. Complaint 57 2. FIR 8 3. Panchnama of place of offence 48 4. Inquest Panchnama 52 5. Seizure panchnama of pant of deceased 43 6. Arrest panchnama and recovery of clothes of accused Chhatrasing Narasingbhai Damor 40 7. Recovery panchnama of muddamal weapon from the accused 38 8. Recovery panchnama of muddamal weapon from the accused 46 9. Recovery panchnama of clothes of deceased from his wife 53 10. Post-Mortem note 23 11. MLC of Ansubhai Varsingbhai issued from General Hospital, Dahod 16 12. MLC of Mansukhbhai Varsingbhai issued from General Hospital, Dahod 17 13. Medical Certificate of Mansing Varsingbhai Damor issued from Soni Hospital, Dahod 31 14. Injury Certificate of Mansing Varsingbhai Damor issued from Soni Hospital, Dahod 32 15. Injury Certificate of Ansubhai Varsingbhai Damor issued from Soni Hospital, Dahod 26 16. MLC of Mansukhbhai Varsingbhai issued from General Hospital, Dahod 17 13. Medical Certificate of Mansing Varsingbhai Damor issued from Soni Hospital, Dahod 31 14. Injury Certificate of Mansing Varsingbhai Damor issued from Soni Hospital, Dahod 32 15. Injury Certificate of Ansubhai Varsingbhai Damor issued from Soni Hospital, Dahod 26 16. Medical Certificate of Ansubhai Varsingbhai Damor issued from Soni Hospital, Dahod 27 17. Notification under section 135 of B.P. Act 60 18. Dispatch note of Director, FSL, Vadodara with muddamal 61 19. FSL receipt 62 20. FSL report with Serological report 63 2.4 After filing of closing pursis by the prosecution, further statements of accused under Sec.313 of Cr.P.C. were recorded. On conclusion of trial and upon hearing the learned advocates appearing for the respective parties, the impugned judgment and order was delivered by the trial court giving rise to the present appeal by the original accused No. 1. 3. Heard Mr. J.M. Buddhbhatti, learned advocate for the appellant and Mr. K.L. Pandya, learned Additional Public Prosecutor, for the respondent-State. 4. Mr. Buddhbhatti, learned advocate for the appellant mainly drew attention of this Court on the depositions of P.W. No. 2-Dr. Amit Ranjan Chaudhary at Exh.15, P.W. No. 3-Dr. Ashok Devidas Bachani at Exh.21 and P.W. No. 4-Dr. Amar Bipinchandra Soni at Exh.25 and relevant medical certificates issued by them related to deceased Mansukhbhai and submitted that if the record pertaining to medical evidence is perused minutely, it can be easily said that had proper treatment been given to deceased Mansukhbhai, he would have survived. He then drew attention on the impugned judgment and order and submitted that the trial court has held original accused No. 1 not guilty for the offence punishable under section 302 of IPC but has held him guilty for the offence punishable under sections 304 Part-II and 326 of IPC. For the offence punishable under section 304 Part-II, he was sentenced to undergo RI for 10 years and for the offence punishable under section 326 of IPC, RI for seven years. He restricted his submission only on the quantum of sentence imposed on the appellant for the offence punishable under section 304 Part-II of IPC. Looking to the evidence appearing on the record more particularly medical evidence, the sentence imposed is on the higher side and hence, he requested that the same be reduced to seven years. He did not press any other points. 5. Looking to the evidence appearing on the record more particularly medical evidence, the sentence imposed is on the higher side and hence, he requested that the same be reduced to seven years. He did not press any other points. 5. Learned APP, Mr. Pandya, drew attention of this Court on the above referred medical evidence and the photographs of the injuries sustained on the elbow of the deceased Mansukhbhai appearing on the record and submitted that P.W. No. 4-Dr.Amar Bipinchandra Soni at Exh.25 had treated Mansukhbhai in his hospital, however, as the facility of vascular treatment was not available in his hospital, he was unable to give treatment to Mansukhbhai resulting into death of the patient on the next day morning. Drawing attention of this Court on the post mortem note at Exh.23, he submitted that cause of death shown therein was due to injuries received on the elbow of the deceased. He further submitted that so far as the offence punishable under section 304 Part-II of IPC is concerned, maximum sentence imposed was ten years and considering the entire case as a whole, appropriate punishment has been imposed by the trial court which shall not be interfered with in this appeal. 6. Considered the rival submissions made by the learned advocates for the respective parties. On going through the deposition of P.W. No. 3-Dr. Ashok Devidas Bachani at Exh.21, it appears that he has treated deceased Mansukhbhai as well as injured Ansubhai first in point of time at Halol. Said doctor has deposed that as injuries sustained by Mansukhbhai were not fatal, if proper and timely treatment had been given, Mansukhbhai would have survived. Injuries narrated by the doctor in his certificate read as under: "(i) incised wound over (N) elbow ant 4" x 2" x murder major brawarjan and veen cut. (ii) Incised (N) thumb at distal, phalynx middle finger at Proximal Phalynx. (iii) Ring finger at middle phalynx (bones Phalynx amp as mennona)." As per the deposition of P.W. No. 3-Dr. Ashok Devidas Bachani, the main injury is on the elbow which was incised wound and therefore, doctor had advised to refer both of them to the Government Hospital at Baroda for further treatment but they were shifted to Soni Hospital of Dr. Amar Bipinchandra Soni, who is M.S. (Ortho). Ashok Devidas Bachani, the main injury is on the elbow which was incised wound and therefore, doctor had advised to refer both of them to the Government Hospital at Baroda for further treatment but they were shifted to Soni Hospital of Dr. Amar Bipinchandra Soni, who is M.S. (Ortho). It is pertinent to note here that as far as another injured patient-Ansubhai is concerned, P.W. No. 4-Dr.Amar Bipinchandra Soni at Exh.25 has performed operation immediately and no clarification is forthcoming in his chief-examination as to why operation was not performed on Mansukhbhai. In the cross-examination, Dr. Amar Bipinchandra Soni has clarified that due to non-availability of vascular treatment facility, he could not perform operation on Mansukhbhai. This clarification does not appear to be digestible in view of the fact that he is M.S. (Ortho). However, when the trial court has convicted the appellant for the offence punishable under section 304 Part-II, I would not stretch this issue any further. In view of the fact that maximum sentence prescribed for the offence punishable under section 304 Part-II of IPC is ten years, I find myself in agreement with the submission made by the learned advocate for the appellant that sentence imposed on the appellant for the offence under section 304 Part-II is on the higher side and hence, if sentence imposed on the appellant is reduced from ten years to seven years by partly allowing the appeal, ends of justice would be met. As the learned advocate for the appellant did not argue on any other point, this Court has also not dealt with rest of the aspects of the case. 7. In view of the above, Criminal Appeal is partly allowed. While confirming the conviction, the sentence imposed on the appellant-original accused No. 1 for the offence punishable under section 304 Part-II of IPC is reduced from RI for ten years to RI for seven years. The impugned judgment and order dated 30.12.2011 passed by the learned Principal Sessions Judge, Dahod, in Sessions Case No. 50 of 2009 is modified only to the aforesaid extent. Remaining part of the impugned judgment would remain unaltered. Sentences are ordered to run concurrently. The accused shall be given set off for the period already undergone in jail. The accused, who is in jail, shall undergo the remaining period of sentence. Record and proceedings shall be sent back forthwith to the trial court.