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Gujarat High Court · body

2016 DIGILAW 1988 (GUJ)

Melabhai Udesinh Garasia v. State of Gujarat

2016-09-07

G.B.SHAH

body2016
JUDGMENT : G.B SHAH, J. Present appeal assails the judgment and order dated 17/08/2000, passed by the learned Additional Sessions Judge, Nadiad, in Sessions Case No. 19 of 2000, whereby, while acquitting the original accused No. 3 for the offences punishable under Sections 323, 504 r/w 114 of the Indian Penal Code, 1860 (for brevity, ‘the IPC) and all the accused for the offence punishable under Section 135 of the Bombay Police Act, 1935, the appellants herein - original accused Nos. 1 and 2 came to be convicted for the offence punishable under Section 323 r/w. 114 of the IPC and sentenced to undergo rigorous imprisonment (RI) for six months and a fine of Rs. 500/- each and in default of payment of fine, to undergo, further simple imprisonment for one month. 2. Brief facts of the prosecution case are that on 08/09/1997 at about 16:00 hours, in the sim of village: Dahevan of Borsad Taluka, Dist. Anand, all the accused allegedly quarreled with the complainant on the ground of dispelling the monkeys and in the aid and abetment of each other, firstly abused the complainant and others and thereafter, the accused No. 2 assaulted the complainant on his head with a wooden stick and also his brother - Khumansinh; the accused No. 3 assaulted one Chandubhai on his right hand wrist, whereas, the accused No. 1 assaulted one Vikrambhai on his left hand wrist. Thus, the accused committed the offence punishable under Sections 323 r/w. 114, 504 r/w. 114 of the IPC and Section 135 of the Bombay Police Act. 3. Pursuant to the complaint, investigation was carried out. After investigation, charge-sheet was filed and as the case was triable by the Court of Sessions, it was committed to the Sessions Court at Nadiad. The trial Court framed charge against the accused, which was read over to them. The accused pleaded not guilty to the charge and claimed to be tried. Therefore, the prosecution produced oral as well as documentary evidence. In order to bring home the charge against the accused, the prosecution has examined in all 09 witnesses and also produced several documentary evidence. 4. The accused pleaded not guilty to the charge and claimed to be tried. Therefore, the prosecution produced oral as well as documentary evidence. In order to bring home the charge against the accused, the prosecution has examined in all 09 witnesses and also produced several documentary evidence. 4. At the end of the trial, after recording the Further Statements of the accused under Section 313 of the Code of Criminal Procedure, 1973 (for brevity, ‘the Code’) and hearing arguments on behalf of prosecution and the defence, the learned trial Judge concluded as aforesaid, by the impugned judgment and order, giving rise to prefer the present appeal by the accused Nos. 1 and 2. 5. Heard Ms. Samata V. Patel, the learned advocate for the appellants - original accused Nos. 1 and 2 and Mr. K.L Pandya, the learned Additional Public Prosecutor for the respondent-State. 6. The learned advocate for the appellants herein-original accused Nos. 1 and 2 contended that the judgment and order of the Sessions Court is against the provisions of law; the Sessions Court has not properly considered the evidence led by the prosecution and looking to the provisions of law itself, it is established that the prosecution has failed to prove the whole ingredients of the offence for which the accused are convicted and sentenced and thereby, the learned trial Jud ge has erred in coming to such a conclusion. She took this Court through the oral as well as the entire documentary evidence on record and submitted that the judgment and order of the trial Court convicting the present appellants is not tenable in the eye of law as the same is not based on the evidence on record. She submitted that the allegation against the accused was that they assaulted the complainant by stick but there is no evidence supporting the deposition of the complainant. Even, the same is neither supported by the evidence of the panch witnesses nor by the medical officer. The learned advocate for the appellants further submitted that the scene of offence panchnama, exh. 12 shows that the place of offence is a farm of the appellant No. 1 which shows that the complainant party came to the farm of the appellant No. 1 and they were aggressor. 7. The learned advocate for the appellants-accused further submitted that Medical Officer - PW-9 Dr. Sohanlal Devilal Dhakroli, in his deposition at exh. 12 shows that the place of offence is a farm of the appellant No. 1 which shows that the complainant party came to the farm of the appellant No. 1 and they were aggressor. 7. The learned advocate for the appellants-accused further submitted that Medical Officer - PW-9 Dr. Sohanlal Devilal Dhakroli, in his deposition at exh. 27, has clearly stated that the injury caused to the complainant can be caused even if anybody falls down. Moreover, if the injury was caused by a stick, there should have been a bruise mark, whereas, there was no mark of bruise on the body of the complainant. 8. The learned advocate for the appellants-accused also submitted that though available, no independent witness has been examined by the prosecution and based on the evidence of the present witnesses, who are much less the interested witnesses, basing upon their evidence, conviction cannot be imposed. 9. The learned advocate for the appellants-accused further submitted that, though it was not specifically pleaded by the appellants herein, but it was a case of self-defence. She submitted that it is possible that due to scuffle, they might have fallen down and sustained such injuries, as is opined by the doctor. Under the aforesaid circumstances, the ingredients of section 323 of the IPC cannot be said to have been proved by the prosecution beyond reasonable doubt and the same cannot have been attracted against the present appellants in the said facts and circumstances of the case and accordingly, the conviction imposed upon the appellants-accused of imprisonment of six months being on higher side, should not be sustained. Making above submissions, the learned advocate for the accused requested to allow the present appeal, setting aside the impugned judgment and order as no ingredients of the said offence have been proved. 10. Whereas, Mr. Pandya, the learned Additional Public Prosecutor for the respondent- State, supported the impugned judgment and order and submitted that the same having been passed in accordance with law, does not call for any interference. It is submitted that the prosecution has successfully proved the case against the accused beyond reasonable doubt and the learned trial Judge, after taking into consideration all the aspects of the matter, has come to such a conclusion, which is just and proper. It is submitted that the prosecution has successfully proved the case against the accused beyond reasonable doubt and the learned trial Judge, after taking into consideration all the aspects of the matter, has come to such a conclusion, which is just and proper. He, taking this Court to the entire oral as well as the documentary evidence on record, submitted that the prosecution has successfully proved its case beyond reasonable doubt as almost all the prosecution witnesses have supported the case of the prosecution and the documentary evidence also find corroboration with the same. He, by drawing attention of the Court on the Panchnama of place of incident, exh. 12, submitted that it is clear that the incident had occurred at the shedha (border) of the field and from the distance narrated in the said panchnama (in steps), it appears that both the sides were residing adjacent to each other. In light of the same, if the deposition of PW-1 Mahendrasinh Himatsinh Parmar at exh. 11 is refered, he has stated that after leaving one field, belong to Samantbhai, the fields of the parties are situated. The learned Additional Public Prosecutor also drew the attention of the Court upon the deposition of complainant - PW-1 Shanabhai Chandubhai Garasiya at exh. 22 and submitted that, in his cross-examination there is a mention of cross case and accordingly, the presence of the present appellants - accused cannot be discarded. He has also deposed that Udesinh had come out with a danti and hence, it cannot be said that the appellants-accused were aggressor. Moreover, he submitted that referring the deposition of PW-9 Dr. Sohanlal Devilal Dhakroli at exh. 27 and the certificate issued by him at exhs. 28 and 29, the injuries sustained by the complainant and the other witness are proved. He further submitted that there may be some contradictions in the evidence adduced by the prosecution, however, the fact remains that the offence had been committed by the accused, which is proved by the substantive evidence on record and accordingly, for minor contradictions, the whole case of the prosecution, which is otherwise proved beyond doubt, cannot be discarded or disbelieved. Moreover, he submitted that when the learned trial Judge has dealt with each and every aspect of the matter minutely and for coming to such a conclusion, plausible reasons have been given, this Court may not interfere in appeal. Moreover, he submitted that when the learned trial Judge has dealt with each and every aspect of the matter minutely and for coming to such a conclusion, plausible reasons have been given, this Court may not interfere in appeal. Making above submissions, he requested to dismiss the present appeal as having no merits. 11. I have considered the rival submissions made by the learned advocates for the parties and also gone through the evidence on record and re-appreciated and re-evaluated the same on the touchstone of the latest decisions of the Hon'ble Apex Court. 12. Referring the deposition of the complainant - PW-6 Shanabhai Chandubhai Garasiya at exh. 22, more particularly, his cross-examination, he has admitted the fact of cross case against him and others, which was numbered as Sessions Case No. 307 of 1997 and pending and accordingly, the presence of the accused is proved beyond reasonable doubt. Moreover, considering the evidence of PW-9 Dr. Sohanlal Devilal Dhakroli at exh. 27 and the certificate issued by him at exhs. 28 and 29, the injuries sustained by the complainant and PW-7 Khumansinh Chandubhai Garasiya, the brother of the complainant, have been proved beyond reasonable doubt. Accordingly, from the aforesaid evidence, the presence of the accused as well as the injuries sustained by the complainant and his brother, are pro ved beyond reasonable doubt. 13. The learned advocate for the accused has argued that the complainant side was the aggressor, however, from the evidence of the complainant at exh. 22, it is clear that when he had gone to talk with the appellants-accused as regards dispelling the monkeys towards his house, the accused No. 1 got excited and started abusing him and thereafter, his father, Udesinh had come out from the house with a weapon called ‘danti. The same story has also been narrated in his complaint at exh. 23, which is supported by the depositions of other prosecution witness i.e PW-7 Khumansinh Chandubhai Garasiya, the brother of the complainant at exh. 24. Moreover, the learned trial Judge, in the impugned judgment and order, more particularly, in para 11 has observed that, ‘from the evidence on record it appears that, when Dr. Siraj had examined Chandubhai Nagjibhai Garasiya, no ostensible injuries were found on his body. Moreover, Chandubhai Nagjibhai Garasiya is not examined and witnesses-Shanabhai and Khumansinh have not deposed anything as to who had caused injuries to Chandubhai. Siraj had examined Chandubhai Nagjibhai Garasiya, no ostensible injuries were found on his body. Moreover, Chandubhai Nagjibhai Garasiya is not examined and witnesses-Shanabhai and Khumansinh have not deposed anything as to who had caused injuries to Chandubhai. As per the deposition of complainant-Shanabhai, Gulabsinh had assaulted him with a stick and when his brother Khumansinh intervened, Melabhai assauted him with a stick and when his father intervened to save them, Jenabhai assaulted him with a stick As per the say of Khumansinh, Gulabsinh had assaulted Shanabhai with a stick and when he intervened, Melabhai assaulted him on his head on right side with a stick. As per the evidence of Dr. Sohanlal, when he examined Khumansinh, there found an incised wound on his head on right side, measured at 1.5. He has stated that such injury could be possible by stick Moreover, as per the Medical Officer, on examining Shanabhai, there found abrasion on his right hand and on his back and bruise mark on his right leg. Thus, the injuries sustained by both these witnesses, gets corroboration by the evidence of the Medical Officer. In the circumstances, accused Melabhai and Gulabsinh are found to be guilty for the offence punishable under Section 323 r/w. 114 of the IPC for causing injuries to both these witnesses in aid and abetment of each other, whereas, it is not proved beyond reasonable doubt that accused No. 3 Jenabhai Vajesinh had caused injuries to Chandubhai and hence, he should be acquitted by giving benefit of doubt. 14. Moreover, the submission of the learned advocate for the appellants-accused putting forth the case of self-defence does not find any favour for the reasons that there is nothing on record to show that the complainant side was the aggressor nor has any thing there on record that the complainant side had made any assault and only on the basis that the incident had occurred at the shedha of the filed of the accused, the adverse inference cannot be drawn and the prosecution case cannot be discarded, which is otherwise proved. 15. 15. In the aforesaid view of the matter, in the considered opinion of this Court, the prosecution has successfully proved the case against the accused beyond reasonable doubt and the learned trial Judge has rightly considered and evaluated the evidence on record and that, the learned trial Judge has committed no error, which requires interference at the hands of this Court, more particularly, when for the findings and conclusion of conviction and sentence, plausible reasons have been given. Moreover, the trial Court, while considering the evidence on record, has very elaborately discussed the evidence adduced before it. Further, the learned advocate for the accused is not in a position to show any evidence to take a contrary view in the matter or that the approach of the Court below is vitiated by some manifest illegality or that the decision is perverse or that the Court below has ignored the material evidence on record. In that view of the matter, I am of the considered opinion that the Court below was completely justified in passing impugned judgment and order. 16. In view of the aforesaid discussion, present appeal fails and is dismissed accordingly. The impugned judgment and order dated 17/08/2000, passed by the learned Additional Sessions Judge, Nadiad, in Sessions Case No. 19 of 2000, is hereby confirmed. 17. Registry to return the R&P to the trial Court forthwith.