Research › Search › Judgment

Gujarat High Court · body

2016 DIGILAW 561 (GUJ)

Jivrajbhai Mohanbhai Rokad v. State of Gujarat

2016-03-10

G.B.SHAH, K.S.JHAVERI

body2016
JUDGMENT : K.S. Jhaveri, J. 1. Both these appeals are preferred against the impugned judgment and order dated 17.2.2005 passed by learned Additional Sessions Judge, 1st Fast Track Court, Amreli, in Sessions Case No. 94 of 1998. By the said judgment, the accused were held guilty for offence punishable under Section 307 read with Section 34 of the Indian Penal Code (for short, "IPC") and ordered to undergo two years' rigorous imprisonment with fine of Rs. 1,000/- each and, in default of payment of fine, further simple imprisonment of three months was awarded. The accused were also held guilty for the offence punishable under Section 135 of the Bombay Police Act and ordered to undergo three months' rigorous imprisonment. Being aggrieved by the impugned judgment, accused persons have preferred Criminal Appeal No. 397 of 2005 against their conviction, while Criminal Appeal No. 653 of 2005 is preferred by the State for enhancement of sentence imposed upon the accused persons. 2. Both these appeals are arising out of the same judgment and since the evidence is common in both these matters, the same are taken up for hearing together and are being decided by this common judgment. 3. The case of the prosecution is that on 5.5.1998 at about 10 p.m. while the complainant was going on his motor cycle near railway crossing, the accused were standing there with deadly weapons. It is alleged that accused No. 2 gave axe blow on the head of the complainant because of which the complainant fell down. It is alleged that accused No. 1 attacked the complainant with dharia, while accused No. 3 attacked him with sword. Since the complainant shouted for help, Ashwinbhai Thummar and Jaysukhbhai Manubhai reached there and took him to the hospital. It is alleged that accused No. 1 had borrowed money from the father of the complainant and was not returning the same, therefore, there was enmity between the accused and the complainant. With these allegations, the complaint was filed against the accused persons. 3.1 Upon filing of the complaint, investigation was carried out and the accused were arrested and charge-sheet was submitted in the Court of learned Magistrate. However, as the case was exclusively triable by the Court of Sessions, the same was committed to the Sessions Court. Thereafter, charges were framed against the accused persons. The accused pleaded not guilty and claimed to be tried. However, as the case was exclusively triable by the Court of Sessions, the same was committed to the Sessions Court. Thereafter, charges were framed against the accused persons. The accused pleaded not guilty and claimed to be tried. 3.2 During the trial, the prosecution had examined following witnesses:-- Sr. No. Name Exh. 1 Sureshbhai Kanjibhai Kabariya. 24 2 Kiritbhai Kanjibhai. 35 3 Ishwarbhai Ratnabhai Pargi. 38 4 Parshottambhai Madhabhai Dobariya. 41 5 Ratigar Damodargar. 43 6 Jaysukhbhai Manubhai. 45 7 Dr. Bhimjibhai Laljibhai Dabhi. 49 8 Maganbhai Nagjibhai Patel. 56 9 Rameshbhai Naranbhai 58 10 Arvindbhai Ramjibhai. 60 11 Dilipsinh Raghuvirsinh Gohil. 61 12 Dr. Hemang Harishchandra Vasavada. 66 13 Gisulal Manrupji Raval. 69 3.3 The prosecution has also produced and relied upon following documentary evidence:-- Sr. No. Description Exh. 1 Complaint. 25 2 Notification of Additional District Magistrate. 39 3 Panchnama of seizure of clothes of Suresh Kanaji. 42 4 Certificate given by Medical Officer, Amreli, to Suresh Kanaji. 50 5 Report of Medical Officer, Amreli to PSI, Amreli. 54 6 Arrest panchnama of the accused. 57 7 Panchnama of the place of offence. 59 3.4 At the end of trial, the Court below recorded further statements of the accused persons under Section 313 of Cr.P.C. and, thereafter, passed the impugned judgment and order awarding the sentence, as aforesaid. Being aggrieved and dissatisfied with the impugned judgment of the trial Court, present appeals are preferred before this Court. 4. Mr. N.K. Majmudar, learned advocate appearing for the appellants-original accused has taken us through the evidence on record and submitted that the impugned judgment and order is against the evidence on record. He submitted that the prosecution has failed to prove its case against the accused. He has taken us through the evidence of the complainant, Sureshbhai Kanjibhai Kabariya, PW-1 and contended that there are serious contradictions in his evidence and the trial Court has erred in relying upon his evidence. He submitted that in the chief-examination, the complainant has stated that immediately after the incident, upon hearing his shouts, Jaysukhbhai and Ashwin Thummar had reached to the place of incident, however, in the cross-examination, this witness has stated that after the incident he stayed at the Pan Shop for five minutes and, thereafter, aforesaid persons had come. He further submitted that as per the evidence of Pragjibhai Dudabhai, Exh. He further submitted that as per the evidence of Pragjibhai Dudabhai, Exh. 78, accused No. 2 was in office upto 00.30 hours on the date of the incident and he had also put his signature on necessary papers and registers. He submitted that in the history before the doctor, names of accused Nos. 1 and 3 were given and name of accused No. 2 was not given. He further submitted that as per the evidence of Dr. Hemant Vasavada, it is clear that the complainant had not given name of any of the accused and all the injuries sustained by the complainant were simple in nature. He has also taken us through the evidence of Kiritbhai Kanjibhai, PW-2 and submitted that since this witness is the brother of the victim, his deposition cannot be relied on as he is an interested witness. He also submitted that a cross complaint was filed against the complainant, wherein the complainant has been convicted by the trial Court. He submitted that there are contradictions in the evidence of the prosecution witnesses and, therefore, it cannot be relied on to convict the accused. In view of these, he prayed that Criminal Appeal No. 397 of 2005 may be allowed by setting aside the conviction recorded against the accused and Criminal Appeal No. 653 of 2005 may be dismissed. 5. On the other hand, Ms. C.M. Shah, learned APP appearing for the State has submitted that the order of conviction recorded against the accused persons is just and proper and she has supported the conviction recorded by impugned judgment. She submitted that the trial Court has rightly appreciated the evidence on record and convicted the accused. She has also taken us through the evidence on record and contended that the trial Court has not committed any error in convicting the accused. She, therefore, submitted that Criminal Appeal filed by the accused may be dismissed. So far as Criminal Appeal No. 653 of 2005 is concerned, which is preferred by the State for enhancement of sentence imposed upon the accused, she submitted that looking to the documentary as well as oral evidence available on the record of the case, learned Judge has erred in imposing lesser punishment. She also submitted that the learned trial Judge has failed to appreciate that this is a very serious offence and, no leniency should have been showed towards the accused. She also submitted that the learned trial Judge has failed to appreciate that this is a very serious offence and, no leniency should have been showed towards the accused. She also submitted that the accused had attacked the victim with deadly weapons like axe, dhariya and sword and gave blows to the victim on the vital part of the body, therefore, maximum sentence should have been imposed upon the accused. She submitted that the learned Judge ought to have imposed maximum sentence on the present accused as provided under Section 307 read with Section 34 of IPC. Hence, impugned judgment and order passed by learned Judge in imposing the lesser sentence deserves to be modified by this Hon'ble Court and the sentence imposed on the accused deserves to be enhanced to maximum sentence as provided under the aforesaid sections. She, accordingly, prayed to allow the appeal preferred by the State. 6. We have heard learned advocate Mr. N.K. Majmudar for the accused and Ms. C.M. Shah, learned APP for the State. We have also gone through the impugned judgment as well as evidence on record. We have gone through the evidence of Dr. Bhimjibhai Dabhi, PW-7, Exh. 49, wherein he has deposed that there were four injuries, out of which two injuries were caused on the head of the complainant. This witness has also deposed that these injuries were possible with the use of sharp edged weapon. We have also gone through the evidence of Dr. Hemang Vasavada, PW-12, Exh. 66, wherein he has deposed that the injuries in question were simple in nature and they may heal within 21 days. We have also gone through the deposition of the complainant. Though there are some contradictions in the evidence of the complainant, the same are not so glaring which may affect the case of the prosecution. In this regard, we may refer to the decision of this Court in the case of Babu @ Babu Bajaniya Kalubhai Motibhai Parmar v. State of Gujarat reported in 2013 (3) GLR 2743 , wherein it is held as under:-- "7. PW-15 Jashiben Ex. 31 in her ocular version has fully supported her FIR which she has lodged. Even if there is any discrepancy in the place of incident that would not weigh so as to give benefit of doubt. PW-15 Jashiben Ex. 31 in her ocular version has fully supported her FIR which she has lodged. Even if there is any discrepancy in the place of incident that would not weigh so as to give benefit of doubt. In the vadhi, though the names of the accused are not mentioned but the place of offence and the weapons used are mentioned. The perusal of FIR with the ocular version will not persuade us to take a different view then the one taken by the learned trial Judge. The discovery panchnama as per the provisions of section 27 of the Evidence Act is duly proved. It would be appropriate to rely on the decision of the Privy Council in the case of Pulukuri Kottaya & Ors. v. Emperor, reported in AIR (34) 1947 Privy Council 67, and the recent decision of the Apex Court in the case of Rajendrasingh v. State of Uttaranchal, reported in (2013) 4 SCC 713 , as far as section 27 of the Evidence Act is concerned. In this case, the injured witness herself was present at the place of occurrence is beyond doubt and in catena of decisions, it has been held that an injured witness will not spare the real culprit and/or falsely implicate some one else. Even before the trial Court, even from cross-examination of the witness, nothing is proved so as, to show that the accused have been falsely implicated. The presence of accused Babu @ Babu Bajaniya is well established. He has sustained minor injuries, and therefore, presence of all the accused is duly proved.... 8. Where there is direct ocular version will assume importance even if motive is not proved, here both are proved by substantial evidence. In this case, to show that all the accused were present at the place of offence is proved by cogent evidence. There was earlier altercation and the deceased had filed the complaint against some of the accused, which the accused were pressuring to withdraw. Hence, when there is direct evidence just because the doctor has opined that the use of certain part of weapon could not have caused the injury becomes insignificance. Section 149 of IPC reads as follows: 149. There was earlier altercation and the deceased had filed the complaint against some of the accused, which the accused were pressuring to withdraw. Hence, when there is direct evidence just because the doctor has opined that the use of certain part of weapon could not have caused the injury becomes insignificance. Section 149 of IPC reads as follows: 149. Every member of unlawful assembly guilty of offence committed in prosecution of common object.- If an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly, or such as the members of that assembly knew to be likely to be committed in prosecution of that object, every person who, at the time of the committing of that offence, is a member of the same assembly, is guilty of that offence. 9. The accused cannot claim benefit on the trivial discrepancy which might have crept in at the time of trial. The ratio laid down by this Court in the case of Vahaji Ravaji Thakore & Anr. v. State of Gujarat, reported in 2004 (1) GLR p. 777, will also apply in full force to the facts of this case. In this case, the prosecution case cannot be doubted. All the factors and the incident having occurred cannot be said to be such which would permit us to take a different view then that taken by the learned trial Judge. The learned trial Judge has given elaborate reasonings on the facts of the case and it would not be appropriate for us to take a different view then that taken by the learned trial Judge, more particularly, his finding on facts in para-39 till end, requires no interference by this Court. The latest decision of the Apex Court in the case of Kuria and Anr. v. State of Rajasthan, reported in AIR 2013 SC 1085 will apply in full force as the facts in that case are similar to the facts of the present case and the PW-15 has watched the assault on the deceased by all the five accused. The description was given properly and all found to be there who had constituted unlawful assembly as has been time and again decided that common object and common intention have to be viewed in light of the facts of each case. The description was given properly and all found to be there who had constituted unlawful assembly as has been time and again decided that common object and common intention have to be viewed in light of the facts of each case. In this case, the learned trial Judge has rightly come to the conclusion that the common object of unlawful assembly was there and they are likely to commit the said offence, and therefore, member of the unlawful assembly would be guilty of the said offence. Even if the submissions made by learned advocates Mr. Dholakia and Buddhbhatti are accepted, the weapon found from them itself is a clinching evidence which will persuade us to take the same view which has been taken by the learned trial Judge. Our view is further fortified by the latest decision of the Apex Court in the case of Avtar Singh v. State of Haryana with Kirpal Singh alias Pala and Ors. v. State of Haryana and Ors., reported in AIR 2013 SC 286 . Here also, all the accused had assembled, one of them had seen that the deceased fell down on the ground and thereafter other assaulted him. The injuries which deceased has sustained, even in the opinion of doctor, were sufficient to cause death, and thus, we cannot persuade ourselves to take a different view then that taken by the learned trial Judge. As far as homicidal death is concerned and that the death was caused by the common object of all the five accused." 7. In the present case, there is direct ocular version against the accused. In this case, it is proved that all the accused were present at the place of offence. There was earlier altercation with regard to money. Therefore, there is direct evidence against the accused persons. Even the brother of the complainant, Kiritbhai Kanjibhai, Exh. 35, has supported the case of the prosecution. This witness has stated that money was borrowed by the accused and since the same was not paid back, a quarrel had taken place between the accused and the complainant. Thereafter, the incident in question had happened and the complainant had given the names of the accused when this witness met him in the hospital. From the medical evidence, it is clear that these injuries were caused with the weapons like dhariya, axe etc. Thereafter, the incident in question had happened and the complainant had given the names of the accused when this witness met him in the hospital. From the medical evidence, it is clear that these injuries were caused with the weapons like dhariya, axe etc. Therefore, in our opinion, the trial Court has not committed any error in convicting the accused persons. Since cross-complaints are filed in the present case, presence of the accused at the scene of offence is also not in doubt. Thus, from the evidence on record, the prosecution has successfully proved its case against the accused persons beyond reasonable doubt. Looking to the injuries caused to the deceased, no lenient view can be taken in the matter and the sentence imposed upon the accused could have been enhanced, however, considering the fact that the incident is of 1998, more than 17 years have passed and the parties have settled in their lives, we are not inclined to enhance the sentence imposed upon the accused persons. Therefore, we maintain the judgment passed by the trial Court and both these appeals are required to be dismissed. 8. For the foregoing reasons, both these Criminal Appeals are dismissed. The impugned judgment and order dated 17.2.2005 passed by learned Additional Sessions Judge, 1st Fast Track Court, Amreli, in Sessions Case No. 94 of 1998 is hereby confirmed. The accused persons shall surrender before the jail authorities within a period of twelve weeks from today to serve out the remaining period of sentence. The period of sentence already undergone by the accused be given set off to them. Bail bonds, if any, of the accused stands cancelled. Record and proceedings be sent to the Court below forthwith.