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2016 DIGILAW 257 (GUJ)

Surjibhai Dhuljibhai Ninama v. State of Gujarat

2016-02-04

K.S.JHAVERI, R.P.DHOLARIA

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JUDGMENT : K.S. Jhaveri, J. 1. Heard learned Advocate for the appellant accused Mr. Ashish M. Dagli and learned Additional Public Prosecutor for the respondent - State Ms. C.M. Shah. 2. By way of this Appeal, the Appellant accused has felt aggrieved by the judgment and order of conviction and sentence dated 02.07.2007 of the learned Additional Sessions Judge, Fast Track Court No. 6, Sabarkantha - Himatnagar, in Sessions Case No. 163/2004 whereby the accused herein were sentenced to undergo under Section 302 of the Indian Penal Code, life imprisonment and fine of Rs. 2,000/-, in default simple imprisonment for three months. 3. The case in brief and the incident which occurred on 20.06.2004 are as under:- 3.1. It is the case of the prosecution that the complainant and his father had gone at 1.00 pm to work in their fields. On the boundary of their fields, the complainant and his father saw Dinesh Nanji Ninama, Kranti Nanji Ninama, Kirit Nanji Ninama and Surat Dhulaji Ninama making a pad. The complainant and his father requested that the pad may not be made because of which all the accused got incensed. The accused - Dinesh is alleged to have inflicted a dharia blow on the forehead above the eyes on the complainant's father, another accused Kranti is alleged to have inflicted an axe blow, another accused Kirit is alleged to have given a stick blow on the complainant's back and another accused Surji is alleged to have given a dharia blow on the head of the complainant's father. Blood started oozing out because of the injuries and there was a huge commotion. On hearing this, the complainant's wife - Surtaben, Vanrajbhai Babubhai and Dinesh Ramji Katara came rushing and the accused are alleged to have kick and fist blows. To escape from their clutches, the injured tried to escape from the spot. It is alleged that the accused gave obscene abuses and also threatened to kill the complainant and his family members. 3.2. A complaint in this respect was lodged before the PSO, Shyamlaji and the investigation commenced. The chargesheet was led before the learned Magistrate and the case was committed to the Sessions Court, being Sessions triable case. The accused pleaded not guilty to the charges levelled against them. 3.2. A complaint in this respect was lodged before the PSO, Shyamlaji and the investigation commenced. The chargesheet was led before the learned Magistrate and the case was committed to the Sessions Court, being Sessions triable case. The accused pleaded not guilty to the charges levelled against them. On completion of the evidence of prosecution, further statement of the accused under Section 313 of the Code of Criminal Procedure were recorded. 3.3. At the time of the trial, the prosecution examined the following witnesses:- Particulars Exh. Shankarbhai Maheshbhai Damor (Complainant) 34 Witness Surtaben Shankarbhai Damor 45 Dr. Kishorkumar Shardanand Roy 46 Panch Witness Navjibhai Khatraji Gameti 51 Panch Witness Adkabhai Jivaji Katara 53 Panch Witness Rameshbhai Dhulabhai 56 PSO Panabhai Kodarbhai Parmar 57 Witness Dineshbhai Ramjibhai Katara 63 Investigating Officer Narendrakumar Danielbhai Palat 64 Investigating Officer Police Sub-Inspector Krishnasinh Harpalsinh Surayvanshi 69 Circle Officer Gulabchan Kodarbhai Chenva 75 Investigating Officer Police Sub-Inspector Mukeshbhai Amrabhai Patel 77 Police Constable Dineshkumar Hirabhai Rathod 80 The prosecution also relied upon various documentary evidence, some of them are:- Particulars Exh. Original complaint 35 Injury Certificate from CHC, Shyamlaji of the deceased 47 Post Mortem notes of the body of the deceased 48 Certificate of the complainant Shankarbhai 49 Yadi for conducting the post mortem of deceased 50 True copy of the panchnama of the scene of offence 52 Panchnama of the weapon used by the accused 54 Extract of the Station Diary 58 Inquest panchnama of the body of the deceased 59 Panchnama of the seizure of clothes of the deceased 60 Panchnama of the clothes of the deceased given by the Doctor to the Police Constable 61 The reply given by the deceased (Maheshbhai Punjabhai) before the Investigating Officer - 68 Yadi written for preparation of the map of the scene of offence 70 Forwarding letter for the muddamal sent 71 Letter from FSL regarding receipt of muddamal 72 Map of the scene of offence 76 Yadi written by the learned Executive Magistrate for conducting the inquest of the body of the deceased 76 3.4. At the end of the trial, the learned Additional Sessions Judge passed the above judgment and order. 4. Learned Advocate for the appellant Mr. Ashish M. Dagli has submitted that this is a cross case and the Trial Court has committed an error in not believing the version of the present appellant. At the end of the trial, the learned Additional Sessions Judge passed the above judgment and order. 4. Learned Advocate for the appellant Mr. Ashish M. Dagli has submitted that this is a cross case and the Trial Court has committed an error in not believing the version of the present appellant. It is further submitted that the case of the prosecution as far as injuries are concerned which are attributed to the deceased are not proved from the medical evidence. It is also submitted that as per the evidence of Dr. Kishorekumar, no injury of dharia is found in the Certificate at Exhibit 46. It is further submitted that the learned Judge has committed a serious error of law as if the evidence is lead as it is and the cross complaint, if is perused alongwith the medical evidence and the panchnama of the place of incident, it is apparent that a false and concocted case is made with a view to implicate the appellant and put him behind the bars. Considering the above, it is submitted that this is a fit case which requires the interference of the Court and the judgment and order of the learned Additional Sessions Judge be upturned. 5. Learned Additional Public Prosecutor Ms. C.M. Shah has submitted that the learned Judge has given cogent and convincing reasons to arrive at the conviction and sentence of the accused and therefore, there is no need for this Court to interfere with the judgment and order of the learned Additional Sessions Judge. 6. We have heard learned Advocates for the parties and perused the records of the case. Taking into consideration the medical evidence and evidence of the complainant, it transpires that the injured did not rush immediately to the hospital but went to his residence. There are also discrepancies noticed in the first Medical Certificate and subsequently, the number of injuries qua the deceased have increased in Column No. 12 of the Post mortem report of CHC, Shhamlaji. Therefore, this Criminal Appeal is required to be allowed by holding the accused guilty for offence under Section 304, Part II of the Indian Penal Code and not for offence under Section 302 of the Indian Penal Code and sentence imposed upon the accused is required to be reduced to five years imprisonment. 7. The Appeal is partly allowed. Therefore, this Criminal Appeal is required to be allowed by holding the accused guilty for offence under Section 304, Part II of the Indian Penal Code and not for offence under Section 302 of the Indian Penal Code and sentence imposed upon the accused is required to be reduced to five years imprisonment. 7. The Appeal is partly allowed. The judgment and conviction of the appellant under challenge, i.e. dated 02.07.2007 passed by the learned Additional Sessions Judge, Fast Track Court No. 6, Sabarkantha-Himmatnagar, Camp-Idar in Sessions Case No. 163/2004 is modified and altered from Section 302 of the Indian Penal Code to one under Section 304 Part II of the Indian Penal Code and the appellant is sentenced to undergo rigorous imprisonment for five years instead of life imprisonment. The rest of the part of the judgment and order of conviction and sentence remains unaltered. The fine and in default punishment as imposed by the trial court is maintained. If the appellant has already served the aforesaid period of sentence, he shall be set at liberty forthwith, provided he is not required by the Jail Authority for any other purpose. The State is at liberty to consider for remission the case of the appellant, if so found fit. Record and proceedings be sent to the concerned Trial Court forthwith.