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2016 DIGILAW 571 (GUJ)

Dhirubhai Keshabhai Koli v. State of Gujarat

2016-03-11

G.B.SHAH, K.S.JHAVERI

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JUDGMENT K.S. Jhaveri, J. 1. Learned Advocate Mr. N.K. Majmudar appears for the accused in Criminal Appeals No. 1084/2004 and 1085/2004. In Criminal Appeal No. 423/2004, learned Advocate Mr. K.J. Kakkad appears for the accused. Today, learned Advocate Mr. K.J. Kakkad is not present. As all the Appeals arise out of one single judgment and order of conviction and sentence, this Court requested learned Advocate Mr. N.K. Majmudar to appear for the accused in Criminal Appeal No. 423/2004, which was acceded to by learned Advocate Mr. N.K. Majmudar and he canvassed his submissions on behalf of the accused in Criminal Appeal No. 423/2004 also. 2. All the above Appeals are directed against the judgment and order of conviction and sentence dated 19.03.2004 passed by the learned Additional Sessions Judge, 6th Fast Track Court, Rajkot in Sessions Case No. 70/99 whereby the original accused No. 1 - Dhirubhai Keshabhai Koli was convicted for the offence punishable under Section 326 of the Indian Penal Code and was sentenced to undergo rigorous imprisonment for five years and fine of Rs. 2,000/- and in default of payment of fine, rigorous imprisonment for one year; was convicted for the offence punishable under Section 506(2) of the Indian Penal Code and was sentenced to undergo rigorous imprisonment for one year and fine of Rs. 500/-, and in default of payment of fine, rigorous imprisonment for one month; was convicted under Section 504 of the Indian Penal Code and was sentenced to undergo rigorous imprisonment for one month and fine of Rs. 100/-, and in default of payment of fine, rigorous imprisonment for seven days; was convicted under Section 135 of the Bombay Police Act and was sentenced to undergo rigorous imprisonment for one month and fine of Rs. 100/-, and in default of payment of fine, rigorous imprisonment for seven days. However, the original accused No. 1 was acquitted for the offence punishable under Section 307 of the Indian Penal Code. The original accused No. 2 - Rameshbhai Keshabhai Koli was convicted for the offence punishable under Section 324 of the Indian Penal Code and was sentenced to undergo rigorous imprisonment for one year and fine of Rs. However, the original accused No. 1 was acquitted for the offence punishable under Section 307 of the Indian Penal Code. The original accused No. 2 - Rameshbhai Keshabhai Koli was convicted for the offence punishable under Section 324 of the Indian Penal Code and was sentenced to undergo rigorous imprisonment for one year and fine of Rs. 500/- and in default of payment of fine, rigorous imprisonment for three months; was convicted for the offence punishable under Section 323 of the Indian Penal Code and was sentenced to undergo rigorous imprisonment for six months and fine of Rs. 300/-, and in default of payment of fine, rigorous imprisonment for one month; was convicted under Section 506(2) of the Indian Penal Code and was sentenced to undergo rigorous imprisonment for one year and fine of Rs. 500/-, and in default of payment of fine, rigorous imprisonment for three months; was convicted under Section 504 of the Indian Penal Code and was sentenced to undergo rigorous imprisonment for one month and fine of Rs. 100/-, and in default of payment of fine, rigorous imprisonment for seven days; was convicted under Section 135 of the Bombay Police Act and was sentenced to undergo rigorous imprisonment for one month and fine of Rs. 100/-, and in default of payment of fine, rigorous imprisonment for seven days. The original accused No. 3 - Rudabhai Keshabhai Koli was convicted for the offence punishable under Section 506(2) of the Indian Penal Code and was sentenced to undergo rigorous imprisonment for one year and fine of Rs. 500/-, and in default of payment of fine, rigorous imprisonment for three months; was convicted for the offence punishable under Section 504 of the Indian Penal Code and was sentenced to undergo rigorous imprisonment for one month and fine of Rs. 100/-, and in default of payment of fine, rigorous imprisonment for seven days; was convicted under Section 114 of the Indian Penal Code and was sentenced to undergo rigorous imprisonment for one year and fine of Rs. 500/-, and in default of payment of fine, rigorous imprisonment for three months. 3. Criminal Appeal No. 423/2004 is preferred by the above accused against the conviction and sentence. 500/-, and in default of payment of fine, rigorous imprisonment for three months. 3. Criminal Appeal No. 423/2004 is preferred by the above accused against the conviction and sentence. Criminal Appeal No. 1084/2004 is preferred by the State for enhancement of sentence imposed on the above accused whereas Criminal Appeal No. 1085/2004 is preferred by the State against the acquittal of the accused - Dhirubhai Keshabhai Koli for the offence punishable under Section 307 of the Indian Penal Code. 4. The case in brief is as under:-- "3.1. There was a meeting of Hadmatiya (Bedi) Gram Panchayat on 24.06.1997 in the afternoon hours in the Gram Panchayat Office at Village Hadmatiya. The original accused No. 1 - Dhirubhai Keshabhai Koli is the husband of the then Sarpanch of Hadmatiya Gram Panchayat - Smt. Kantaben and he was also the member of the Gram Panchayat. In the above meeting of Gram Panchayat, Sarpanch Kantaben, Vice Sarpanch Ranjitbhai, the original accused No. 1 and the complainant Karshan Karnabhai were present. In the meeting, the complainant had raised an objection that all the inhabitants of village Hadmatiya were having a water pipeline of 0.5" whereas only the Sarpanch has a water pipeline of 1" and instead, the Sarpanch should also have a water pipeline of 0.5". The original accused No. 1 got enraged and there was a hot exchange of words between the accused No. 1 and the complainant. It is alleged that when the complainant objected to this, the accused No. 1 inflicted an axe blow on the head of the complainant. When the Vice Sarpanch Ranjitbhai tried to intervene, he was also injured. The accused is alleged to have inflicted two axe blows on the head of the complainant and one axe blow on the left side the chest. The complainant was caught hold of by the accused No. 3 and the accused No. 2 inflicted a stick blow on the head of the complainant. Moreover, all the accused had threatened the complainant to kill him and had also abused the complainant. 3.2. A complaint in this respect was lodged by the complainant - Karshanbhai Karnabhai before Rajkot Taluka Police Station against the accused for committing offences punishable under Sections 307, 326, 324, 323, 504, 506(2) and 114 of the Indian Penal Code and under Section 135 of the Bombay Police Act which was registered vide Crime Reg. No. 370/97. 3.2. A complaint in this respect was lodged by the complainant - Karshanbhai Karnabhai before Rajkot Taluka Police Station against the accused for committing offences punishable under Sections 307, 326, 324, 323, 504, 506(2) and 114 of the Indian Penal Code and under Section 135 of the Bombay Police Act which was registered vide Crime Reg. No. 370/97. The Police Inspector, Rajkot Taluka Police Station commenced the investigation and drew the panchnama. He recorded the statement of witnesses, collected injury certificates of the complainant and Ranjitbhai. After the investigation, he filed the chargesheet before the learned Judicial Magistrate First Class, Rajkot for conducting trial against the accused. But as it was a Sessions triable case, it was committed to the Court of Sessions under Section 209 of the Code of Criminal Procedure where it was registered as Sessions Case No. 70/199. When the accused appeared before the learned Sessions Judge, Rajkot, charges were framed against the accused. The contents of the charge were read over to the accused, whereby they denied the charges. Hence, the trial was conducted against the accused and subsequently, under Section 216 of the Code of Criminal Procedure, the charge was altered. The altered charge was read over and explained to the accused. In the altered charge, as Section 114 was not added in the charge, the learned Sessions Judge added Section 114 in the charge against the accused, and the accused denied the charge altered and claimed to be tried. 3.3. At the time of the trial, the prosecution examined the following witnesses:-- Particulars Exh. Complainant – Karshanbhai Karnabhai 11 Dr. N.T. Nakum 20 Witness Ranjit Ramji Dodiya 31 Panch witness Vajubhai M. Kumbhar 39 Neuro Surgeon Dr. P.G. Modha 40 Witness Raghubhai Panchbhai 46 Investigating Officer J.A. Yadav 49 Dr. J.H. Karia 54 The prosecution also relied upon various documentary evidence, some of them are:-- Particulars Exh. Complainant – Karshanbhai Karnabhai 11 Dr. N.T. Nakum 20 Witness Ranjit Ramji Dodiya 31 Panch witness Vajubhai M. Kumbhar 39 Neuro Surgeon Dr. P.G. Modha 40 Witness Raghubhai Panchbhai 46 Investigating Officer J.A. Yadav 49 Dr. J.H. Karia 54 The prosecution also relied upon various documentary evidence, some of them are:-- Particulars Exh. Original First Information Report 12 Depute Order 13 Special Report 14 Panchnama of physical condition of Karshanbhai Karnabhai 15 Panchnama of the scene of offence 16 Receipt of FSL 18 Notification 19 Police Yadi 21 MLC of Karshanbhai 22 Certificate of Karshanbhai 23 Police Yadi 24 MLC of Dhirubhai 25 Certificate of Dhirubhai 26 Police Yadi 33 Original Case papers of Karshanbhai 34 Original Medical Certificate of Karshanbhai 35 Police Yadi 36 Original Case papers of Dhirubhai 37 Certificate of Injury of Dhirubhai 38 Discovery panchnama of Weapons 40 Injury Certificate of Dr. Prakash Modha 42, 43 Original case papers including Report and X-Ray 55 Injury Certificate of the injured Karshanbhai 56 3.4. At the end of the trial, further statement of the accused under Section 313 of the Code of Criminal Procedure was recorded in which the accused pleaded not guilty and stated that they have been falsely implicated in the offence. Thus, after recording the further statement of the accused and hearing the arguments of both the sides, the learned Additional Sessions Judge passed the above judgment and order. Being aggrieved by the same, the present appeals have been filed, as aforesaid." 5. Learned Advocate appearing for all the accused Mr. N.K. Majmudar has submitted that there was a quarrel amongst two rival groups and the incident in question is on account of this rivalry and therefore, it was not safe to rely upon the prosecution witnesses. It is further submitted that there were simple injuries which were not serious in nature and therefore, the prosecution has miserably failed to prove its case beyond reasonable doubt and also, the sentence awarded to the accused under Sections 323 and 324 of the Indian Penal Code is on the higher side and the same is required to be reduced by this Court. It is further submitted that considering the above and the time gap of nearly 19 years, a sympathetic view may be taken by this Court qua the sentence of the accused. 6. Learned Additional Public Prosecutor Mr. It is further submitted that considering the above and the time gap of nearly 19 years, a sympathetic view may be taken by this Court qua the sentence of the accused. 6. Learned Additional Public Prosecutor Mr. Hardik Soni has taken this Court to the evidence led by the complainant and submitted that the learned Judge has given cogent and convincing reasons to arrive at the conviction of all the three accused, however, it ought to be appreciated that the original accused No. 1, who is the husband of the Sarpanch had tried to prevail in the meeting of the Gram Panchayat in a very rash manner and this Court should take a serious view of the matter where the injured was also hospitalized. It is also submitted that the injuries perpetrated by the accused could have also resulted into the death of the injured and therefore, this is a fit case which requires interference of this Court and the judgment and order of the learned Judge be upturned and the sentence of the accused be enhanced. 7. We have heard learned Advocates appearing for the respective parties and perused the records of the case. It is not in dispute that the presence of all the accused is proved at the place of offence and they were also armed with deadly weapons and have inflicted the injuries on the injured. If timely treatment had not been given to the injured, he would have died. However, it is his fortune that he received timely medical attention. Considering the facts and circumstances of the case, we are of the view that under Section 326 of the Indian Penal Code, the accused ought to be awarded a sentence of minimum 10 years whereas the learned Judge had awarded a sentence of rigorous imprisonment for five years only. We are also conscious of the fact that the incident occurred on 24.06.1997 and considering the time that has elapsed and that they have settled in their lives by now, we do not deem it just and proper to interfere with the judgment and order of the learned Additional Sessions Judge. 8. In the result, all the Appeals being devoid of merits, are dismissed accordingly. The judgment and order of conviction and sentence dated 19.03.2004 of the learned Additional Sessions Judge, 6th Fast Track Court, Rajkot in Sessions Case No. 70/1999 is hereby confirmed. 8. In the result, all the Appeals being devoid of merits, are dismissed accordingly. The judgment and order of conviction and sentence dated 19.03.2004 of the learned Additional Sessions Judge, 6th Fast Track Court, Rajkot in Sessions Case No. 70/1999 is hereby confirmed. If the accused have not undergone the sentence as awarded by the trial Court, they are directed to surrender to custody within twelve (12) weeks from today to serve the remaining period of sentence, failing which, the concerned investigating agency shall take necessary actions, in accordance with law. Bail bond, if any, of the accused stands cancelled. The period of sentence already undergone by the accused shall be considered for remission and set off in accordance with law. Record and proceedings be sent to the concerned Trial Court forthwith.