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2016 DIGILAW 279 (GUJ)

State of Gujarat v. Daljibhai Bhavabhai Taviyad

2016-02-05

M.R.SHAH, Z.K.SAIYED

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JUDGMENT : M.R. Shah, J. 1. Feeling aggrieved and dissatisfied with the impugned judgment and order of acquittal passed by the learned Additional Sessions Judge, 7th Fast Track Court, Panchmahal at Godhra passed in Sessions Case No. 130 of 2003, by which, the learned trial Court has acquitted the respondents herein - original accused for the offences punishable under Sections 302, 323, 325 r/w. Section 114 of the Indian Penal Code, the State has preferred present Appeal under Section 378 of the Code of Criminal Procedure. 2. The facts leading to the prosecution case in nutshell are as under: 2.1. The complaint with regard to the commission of crime, was registered by the victim Masurbhai on 20.10.2002 at about 22.00 p.m. alleging that on 19.10.2001 at about 11.30 p.m. when the accompanied by his son and wife were retiring in his house, the accused when to his house. The accused were holding weapons in their hands. The accused No. 2 was having iron rod, whereas remaining accused were armed with the sticks. The accused entered into a verbal spat with regard to the payment to be made by the complainant, following attach on one of the accused. The son of the accused was given stab wound, therefore, the injured was admitted in the hospital. The amount was not paid by the accused and therefore, the accused went to the house of the complainant and thereafter, they assaulted. As it is alleged by the prosecution, the accused Daljibhai had given a stick blow on the left leg of the complainant, who sustained a fracture injury on tibia and fibula. The accused Tersing had inflicted a blow with the iron rod and son of the complainant Lalsingi had sustained injuries on his left leg, resulting into a fracture. Remaining two accused also took part actively and they also gave some blows on the person of the complainant and his son. The complainant and his relative had screamed for help and the neighbors had thronged to rescue the victims. The accused, thereafter, fled from the scene of offence. The complaint could not be lodged immediately since there was no vehicle available in the village and it was a night time. The complainant and his son were referred to Community Health Center at Fatehpura and after giving them primary treatment, they were referred to General Hospital, Godhra. The accused, thereafter, fled from the scene of offence. The complaint could not be lodged immediately since there was no vehicle available in the village and it was a night time. The complainant and his son were referred to Community Health Center at Fatehpura and after giving them primary treatment, they were referred to General Hospital, Godhra. It appears that the complainant was discharged from the hospital on 24.10.02 and thereafter, it was reported to the police that on 2-11-2002, the complaint had died. The Investigating Officer inquired into the matter and arrived on the opinion that the complainant had died following injuries sustained by him. Since he apprehended that the accused were liable to be tried for the offence punishable u/s. 302 of I.P.C., the report in that regard was submitted to the ld. Magistrate. 2.2. That FIR was investigated by one Raghunath Motisinh Rathod - PW No. 10 - Police Officer of Fatehpura Police Station. The Investigating Officer has recorded the statement of the concerned witnesses. He also drawn the panchnama of the scene of the offence. He also recovered the weapon used by the accused and recovered the mudamal articles and sent it to the FSL for examination. He also collected the medical evidence by recording the statement of the doctors who treated the original complainant Masurbhai and Lalsingbhai Masurbhai. After conclusion of the investigation and having found prima facie case against the accused, the Investigating Officer - PSI Shri Saiyed filed the charge sheet against the accused in the Court of learned JMFC for the offence under Sections 302, 323, 325 r/w. Section 114 of the Indian Penal Code. As the case was exclusively triable by the Court of Sessions, learned JMFC, Santrampur committed the case to the Sessions Court Panchmahal at Godhra, which was subsequently transferred to Sessions Court which was numbered as Sessions Case No. 130 of 2003. That the learned Sessions Judge framed the charge against all the accused for the aforesaid offences. All the accused pleaded not guilty and therefore, all of them came to be tried by the learned trial Court for the aforesaid offences. 2.3. To prove the case against the accused, prosecution examined following Prosecution witnesses: PW No. Name Exh. That the learned Sessions Judge framed the charge against all the accused for the aforesaid offences. All the accused pleaded not guilty and therefore, all of them came to be tried by the learned trial Court for the aforesaid offences. 2.3. To prove the case against the accused, prosecution examined following Prosecution witnesses: PW No. Name Exh. No. 1 Shakjibhai Galjibhai Bhabhor 19 2 Rameshbhai Harjivanbhai Shrimali 22 3 Dalshukhbhai Somabhai Taviyad 24 4 Lalsingbhai Masurbhai 26 5 Shankerbhai masurbhai 28 7 Manabhai Masurbhai 29 8 Dr. Shitalben Ashokbhai Modi 31 9 Ashokbhai Koliyabhai Khant 34 10 Raghunathsinh Motisinh Rathod 35 2.4. To the aforesaid witnesses, the prosecution also brought on record the following documentary evidence: Exh. No. Particulars 18 Inquest Panchnama 20 Medical certificate treatment of Masurbhai 21 Treatment certificate in respect of Lalsing 23 P.M. Note 25 Arrest Panchnama and recovery 33 Medical certificate of General Hospital regarding treatment of Masurbhai. 32 Medical certificate regarding treatment of Lalsing 36 Complaint. 2.5. That after submitting the closing purshis by the prosecution, further statement of the accused recorded under Section 313 of the Code of Criminal Procedure. All the accused denied having committed any offence. 2.6. That thereafter, at the end of the trial and on appreciation of evidence, the learned trial Court has acquitted the accused for the aforesaid offence. 2.7. Feeling aggrieved and dissatisfied with the impugned judgment and order of acquittal passed by the learned trial Court, the State has preferred present Criminal Appeal. 3. At the outset, it is required to be noted that during the pendency of the present appeal, original accused Nos. 1 and 2 who could have played vital role, have been expired/died and therefore, the present appeal qua original accused Nos. 1 and 2 is ordered to dismissed as having been abated. Therefore, the present appeal is required to be considered qua original accused Nos. 3 and 4 only. 4. Shri Raval, learned Additional Public Prosecutor appearing on behalf of the State has vehemently submitted that the learned trial Court has materially erred in acquitting the original accused Nos. 3 and 4. Therefore, the present appeal is required to be considered qua original accused Nos. 3 and 4 only. 4. Shri Raval, learned Additional Public Prosecutor appearing on behalf of the State has vehemently submitted that the learned trial Court has materially erred in acquitting the original accused Nos. 3 and 4. It is submitted that in the complaint which was given by the original complainant Masurbhai who subsequently died, which was recorded by the Rathod Raghunathsinh - PW No. 10, which can be said to be oral dying declaration of the deceased recorded by the Police Officer, it was specifically stated that the accused Nos. 3 and 4 caused injuries on him as well as on his son by stick. It is submitted that as such there is no reason not to believe the said oral dying declaration. It is submitted that even injuries by stick on the deceased as well as Lalsing injured eyewitness have been corroborated by medical evidence and by examining the doctor who initially treated the deceased Masurbhai and Lalsing - PW No. 1. It is submitted that therefore, the learned trial Court has committed grave error in acquitting the original accused Nos. 3 and 4. 4.1. It is submitted that incident occurred on 20.10.2002 and the FIR was lodged on 21.10.2002 i.e. on the very next day and Masurbhai-deceased died on 2.11.2002. It is submitted that therefore, considering the above learned trial Court ought to have convicted the accused for the offence punishable under Section 302 r/w. Section 114 of the Indian Penal Code. Making above submissions, it is requested to interfere with the impugned judgment and order of acquittal and convicted the remaining accused i.e. original accused Nos. 3 and 4 for the offence for which they would try with the aid of Section 114 of the Indian Penal Code. 5. Present appeal is opposed by Shri K.N. Purani, learned advocate for the original accused Nos. 3 and 4. It is submitted that as such and even as deposed by doctor who performed the postmortem of the deceased Masurbhai the death of Masurbhai was a natural death and/or no nexus with the injuries sustained by the deceased. It is submitted that the doctor who performed the postmortem of the deceased Masurbhai has categorically stated that deceased died because of the heard attack. It is submitted that the doctor who performed the postmortem of the deceased Masurbhai has categorically stated that deceased died because of the heard attack. It is submitted that therefore, the learned trial Court has not committed any error in acquitting the accused for the offence under Sections 302, 325 r/w. 114 of the Indian Penal Code. 5.1. It is further submitted that even there was a delay in lodging the complaint which was given on the next day. It is submitted that even there are material contradiction with respect to place of incident. It is submitted that therefore, when the learned trial Court has acquitted the original accused it cannot be said that the learned trial Court has committed any error which calls for the interference of this Court. 5.2. In the alternative, it is submitted by Shri Purani, learned advocate for the original accused, more particularly, original accused Nos. 3 and 4 that even considering the dying declaration which was in the form of complaint given by deceased Masurbhai recorded by the police officer and looking to the role attributed to the accused Nos. 3 and 4 at the most the case may fall under Section 323 of the Indian Penal Code. It is submitted that the accused Nos. 3 and 4 have already remained in jail for 34 days i.e. for the period 24.10.2002 to 27.11.2002. It is submitted that therefore, even if this Court held that the accused Nos. 3 and 4 have committed the offence under Section 323 of the Indian Penal Code, the sentence already undergone may be imposed. Making above submissions, it is requested to dismissed the present appeal. 6. Heard the learned advocate for the respective parties at length. We have re-appreciated the entire evidence on record. We have also gone through and considered the reasoning given by the learned trial Court while acquitting the original accused. 6.1. As observed herein above, now present appeal is required to be considered only qua original accused Nos. 3 and 4. 6.2. At the outset, it is required to be noted that in the present case, the complaint was given by the deceased himself which was recorded by the Raghunath Motisinh Rathod - PW No. 10 - Police Officer of Fatehpura Police Station. The same can be said to be an oral dying declaration of the deceased given before the police officer. At the outset, it is required to be noted that in the present case, the complaint was given by the deceased himself which was recorded by the Raghunath Motisinh Rathod - PW No. 10 - Police Officer of Fatehpura Police Station. The same can be said to be an oral dying declaration of the deceased given before the police officer. The complaint which was given by the deceased has been proved by the prosecution by examining Investigating Officer. In the complaint, specific role has been attributed to the accused Nos. 3 and 4 also to the effect that the accused Nos. 3 and 4 gave stick blow on the back of the body of the deceased as well as his son Lalsing. There is no reason to doubt the same. 6.3. It is required to be noted that and even from the report and doctor who performed the postmortem, the deceased died natural death. He died because of the heart attack. It appears that the incident occurred on 20.10.2002 and thereafter the deceased was taken to hospital and thereafter he discharged from hospital and thereafter he died on 2.11.2002 at his residence/home, due to heart attack. There was no injury on the vital body of the deceased by any of the accused. The death of the deceased has no nexus with any of the injuries sustained by him. Under the circumstances, as such no error has been committed by the learned trial Court acquitting the accused for the offence punishable under Section 302, 325 r/w. 114 of the Indian Penal Code. 6.4. However, from the evidence on record, it cannot be said that the accused Nos. 3 and 4 have not committed any offence. Considering the complaint given by the deceased, as observed herein above can be said to be an oral dying declaration and the deposition of injured witness Lalsing and medical evidence on record and the role attributed to the accused Nos. 3 and 4 it can be said that both of them have committed offence under Section 323 of the Indian Penal Code. However, considering the fact that none of them have alleged to have been given the blow by stick on any vital part of the body and minor injuries were found on the back of the deceased, we are of the opinion while convicting the original accused Nos. However, considering the fact that none of them have alleged to have been given the blow by stick on any vital part of the body and minor injuries were found on the back of the deceased, we are of the opinion while convicting the original accused Nos. 3 and 4 for the offence under Section 323 of the Indian Penal Code, if the sentence already undergone is directed to be imposed, it will meet the end of justice and it can be said to be adequate punishment. As observed herein above, accused Nos. 3 and 4 remained in jail for 34 days. 7. In view of the above and for the reasons stated above, present appeal is partly allowed. The impugned judgment and order of acquittal passed by the learned Additional Sessions Judge, 7th Fast Track Court, Panchmahal at Godhra passed in Sessions Case No. 130 of 2003 is hereby confirmed so far as acquitting the original accused Nos. 3 and 4 for the offence punishable under Sections 302, 325r/w. 114 of the Indian Penal Code. However, the impugned judgment and order passed by the learned trial Court is quashed and set aside the so far as acquitting original accused Nos. 3 and 4 for the offence under Section 323 of the Indian Penal Code and both of them are held guilty for the offence under Section 323 of the Indian Penal Code. However, in the facts and circumstances of the case, while convicting the original accused Nos. 3 and 4 for the offence under Section 323 of the Indian Penal Code sentence already undergone is directed to be imposed. Present appeal is partly allowed to the aforesaid extent. Registry is directed to send the Record and Proceedings to the learned trial Court forthwith.