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Gujarat High Court · body

2016 DIGILAW 575 (GUJ)

Dashrathji Jawanji Thakor v. State of Gujarat

2016-03-11

RAJESH H.SHUKLA

body2016
JUDGMENT : Rajesh H. Shukla, J. 1. Criminal Appeal No. 293/2013 has been filed by the appellant-original accused No. 2 and Criminal Appeal No. 294/2013 has been filed by the appellants-original accused Nos. 1, 3 and 4 against the judgment and order rendered in Sessions Case No. 76/2011 by the Additional Sessions Judge, Gandhinagar dated 11th February, 2013 recording conviction of the appellant-original accused persons of both appeals as stated in detail in the impugned judgment and order imposing sentence and fine. 2. The facts of the case briefly summarized are as follows:- 2.1 On 04.05.2011, there was a marriage function of the nephew of the complainant, for which, near temple of Baliyadev, there was dinner fixed. At about 09:30 p.m., the accused persons came there armed with weapons like dhariya, stick etc. and made a grievance that why they were not invited, however, they were pacified that they may not abuse the complainant side and if there is any grievance, it could be sorted out and, therefore, the accused persons started returning, however thereafter, they assaulted the complainant party i.e. Chelaji, Govindji, Popatji Somaji, Amratji Umedji, Chanduji Udaji, Sursangji Keshaji etc. and also few females like the daughter of the complainant, Naginaben, wife of the complainant, Kushiben etc. as stated in the FIR. 2.2 Therefore FIR came to be lodged being C.R. No. I-28/2011 with Pethapur Police Station for the offences under Sections 323, 324, 307, 325, 504, 506(2)and 114 of the Indian Penal Code and under Section 135 of the Bombay Police Act. 2.3 After the investigation was over, the charge-sheet was filed and as the offences were triable by the Court of Sessions, it was committed to the Court of Sessions, Gandhinagar. 2.4 Thereafter, the Court below proceeded with the trial and recorded further statements of the accused under Section 313 of the Criminal Procedure Code. 2.5 After hearing the learned APP as well as learned advocate for the defence and on appreciation of the evidence, the Court below recorded conviction of the appellants-accused and sentenced them as stated in the impugned judgment. 3. It is this judgment and order which has been assailed in both appeals on the grounds stated in the memo of appeal. 4. Heard learned advocate, Shri J.M. Budhbhatti appearing for the appellant-original accused No. 2 in Criminal Appeal No. 293/2013, learned advocate, Shri Rushabh Shah appearing for the appellants-original accused Nos. 3. It is this judgment and order which has been assailed in both appeals on the grounds stated in the memo of appeal. 4. Heard learned advocate, Shri J.M. Budhbhatti appearing for the appellant-original accused No. 2 in Criminal Appeal No. 293/2013, learned advocate, Shri Rushabh Shah appearing for the appellants-original accused Nos. 1, 3 and 4 in Criminal Appeal No. 294/2013 and learned APP Shri Jani for the respondent-State in both appeals. 5. Learned advocate, Shri Budhbhatti referred to the testimony of PW-9, injured complainant and also referred to FIR at Exh.31. He submitted that the version in the FIR and the testimony are different, for which, he minutely referred to the testimony of the complainant, PW-2 at Exh.13 and FIR at Exh.31. He emphasized that there are material contradictions and, therefore, the impugned judgment and order recording conviction may not be sustained. It was emphasized that even the place of incident is not properly stated and the witnesses have differently described as the occasion is stated to be near the temple and few witnesses have stated different place suggesting that they are telling different version with regard to the scene of offence. Similarly, it was submitted that even the weapons used are not supporting as the complainant has stated about the assault with sickle (danti) and at some places, it has been referred to as dharia. Learned advocate, Shri Budhbhatti referring to the testimony of PW-2, complainant submitted that it is stated that the aggression party like the accused have also returned back and there is no explanation as to what transpired resulting in the accident in a spur of moment. He therefore emphasized that the incident has occurred all of a sudden and, therefore, considering the facts and circumstances, the conviction for the offence under Section 307 of the Indian Penal Code could not have been recorded. 6. Again learned advocate, Shri Budhbhatti referred to the testimony of PW-3, injured witness, at Exh.34 as well as testimony of PW-4, Exh.36. He submitted that there are some inconsistencies in describing the manner in which the incident has occurred, place of incident and also the weapons. He therefore submitted that there are exaggeration or improvisation and the testimony of this witnesses, who are interested witnesses, may not be relied upon. He has also referred to the testimony of Dr. He submitted that there are some inconsistencies in describing the manner in which the incident has occurred, place of incident and also the weapons. He therefore submitted that there are exaggeration or improvisation and the testimony of this witnesses, who are interested witnesses, may not be relied upon. He has also referred to the testimony of Dr. Bhavnaben Patel, PW-1 at Civil Hospital, Gandhinagar at Exh.12 and submitted that the doctor had treated the injured eyewitnesses at first point of time and while giving history, no one has given the name of the assailants (accused persons) and in fact, there are two versions originally stated with regard to the incident. He therefore submitted that it implies that when the complainant side or injured victim having stated the name of the accused persons of first incident while giving history to the doctor, the complaint is false or rather it is got up. Learned advocate, Shri Budhbhatti also referred to the testimony of PSO, PW-16 at Exh.63 and testimony of Investigating Officer, PW-17 at Exh.66. Learned advocate, Shri Budhbhatti submitted that the panchnama of recovery of weapon at Exh.61 cannot be said to have been proved or established as the panchas have turned hostile and in absence of proper recovery when there is discrepancy with regard to the weapon used itself, the conviction could not have been recorded. 7. Learned advocate, Shri Rushabh Shah also adopted the submissions made by learned advocate, Shri Budhbhatti and also submitted that the appellants-original accused Nos. 1, 3 and 4 are attributed with lesser role of assault with stick and, therefore, it has been considered and the conviction is therefore imposed for the lesser offences i.e. for the offences under Sections 323, 324, 325 etc. of the Indian Penal Code maximum for a period of two years. Therefore he strenuously submitted that though he supports the submission with regard to the lacuna in the evidence, which has not been appreciated, the conviction could not have been recorded. He further submitted that in any case, even if the conviction is maintained, looking to the role and lesser sentence awarded to the appellants-accused, the benefit under the Probation of Offenders Act may be extended. 8. He further submitted that in any case, even if the conviction is maintained, looking to the role and lesser sentence awarded to the appellants-accused, the benefit under the Probation of Offenders Act may be extended. 8. Learned APP Shri Jani referred to the judgment and the discussion with regard to the appreciation of material and evidence, particularly, the manner in which the incident occurred and the injured eyewitnesses have stated in their testimony corroborating the testimony of complainant, PW-2 at Exh.30 and his complaint at Exh.31. Learned APP Shri Jani also submitted that the medical evidence also corroborates the version of the injured victims, who have stated about the assault with weapon and the type of injury. Learned APP Shri Jani submitted that merely because the discrepancy with regard to the name of the weapon would not be sufficient to discard entire evidence. He pointedly referred to the judgment, discussion in para No. 43 attributing the role to the original accused Nos. 1, 3 and 4 and conclusion. Therefore learned APP Shri Jani submitted that the presence of the accused as aggressors party is clearly established. He submitted that the place of incident is also clearly mentioned near the temple, meaning thereby, if there is function in such a small village, adjoining or nearby village is used and the witnesses have stated about the vicinity of the temple and it does not lead to any major contradiction as sought to be canvassed. Learned APP Shri Jani therefore submitted that it is not the defence of the appellants-accused persons that they were not present inasmuch their presence with role of the weapon are clearly established. Learned APP Shri Jani submitted that the Court has to consider the manner in which the incident occurred and the background of the fact that merely because there was no invitation, they had gone to the complainant party making a grievance about the invitation and assaulting with the weapon. Learned APP Shri Jani submitted that a close scrutiny of the testimony of the witnesses of the complainant would clearly establish that the accused persons had again attacked with weapons as stated in detail and, therefore, merely it is said that when they were instigated, they started returning, does not mean that they had returned back. Learned APP Shri Jani submitted that a close scrutiny of the testimony of the witnesses of the complainant would clearly establish that the accused persons had again attacked with weapons as stated in detail and, therefore, merely it is said that when they were instigated, they started returning, does not mean that they had returned back. In fact immediately at that time, they had started assaulting, meaning thereby, the incident occurred there and there and they had again attacked with weapons suggesting about their motive and intention. Learned APP Shri Jani submitted that even the defence is not taken that the appellants-accused persons were not present at all. He therefore submitted that merely because the invitation is not given, would enrage the appellants-original accused and they proceeded to attack armed with weapon itself suggest about their motive and intention as well as their mentality. Learned APP Shri Jani submitted that apart from that, the conduct of the appellant-accused is also required to be considered that they were absconding from 05.05.2011 to 28.05.2011, for which, there is no explanation. He also referred to the testimony of PW-8 at Exh.42, who is injured eyewitness as well as testimony of PW-9 at Exh.43 and the medical evidence of the victim produced at Exhs.13, 15, 17, 19, 21, 23, 25 and 47. Learned APP Shri Jani submitted that the medical evidence provided by the doctor, who examined, has clearly corroborated about the injury and the weapon by which such injury could be caused. Learned APP Shri Jani submitted that the contention raised by the learned advocate for the appellants that the weapons were not sent to FSL, is required to be considered as no such question was put to Investigating Officer, who would have been offered his explanation. Learned APP Shri Jani submitted that as referred to in the panchnama at Exh.61, there was no blood stain found on the weapon and, therefore, it may not have been referred to the FSL, that does not make any difference. Learned APP Shri Jani submitted that assuming that the weapons are not sent to FSL and no blood stains are found on such weapons, the benefit could not be claimed by the accused. In support of his submission, learned APP Shri Jani referred to and relied upon the judgment of the Hon'ble Apex Court in case of Rajendra Pralhadrao Wasnik Vs. In support of his submission, learned APP Shri Jani referred to and relied upon the judgment of the Hon'ble Apex Court in case of Rajendra Pralhadrao Wasnik Vs. State of Maharashtra, reported in AIR 2012 SC 1377 and emphasized the observations made in para Nos. 12 and 13. 9. Learned APP Shri Jani also submitted that there is no discrepancy with regard to the injury and the medical evidence when the doctor has clearly stated that the injuries to the injured witnesses as referred to in the respective medical certificate, could be caused by such weapons, whether it is seizure or dharia or stick. He submitted that the injury has been proved by such medical evidence and when it has been established about the injury caused to the injured victim, who are the eyewitnesses, whether the weapon is sent to FSL or not, would not be much relevant and no benefit could go to the accused. Learned APP Shri Jani also submitted that there is no explanation by any of the accused in their further statements recorded under Section 313 of the Code of Criminal Procedure, 1973 regarding their absconding, which is also required to be considered. 10. Learned advocate, Shri Rushabh Shah again referred to the background of the facts and submitted that there was no motive as they had gone there and they had also party, however after some talks, the incident happened, for which, there is no explanation. He submitted that the prosecution has not been able to explain as to what transpired and it has not been established, for which, the benefit should go to the accused. He further submitted that in any event, considering the role of the appellants-original accused Nos. 1, 3 and 4 of Criminal Appeal No. 194/2013, it is the fit case for exercise of discretion by granting benefit under the Probation of Offenders Act. 11. In view of these rival submissions, it is required to be considered whether the present appeal deserves consideration. 12. As it transpires from scanning of the material and evidence considered and appreciated by the Court below for recording conviction, the impugned judgment and order does not call for any interference. 13. 11. In view of these rival submissions, it is required to be considered whether the present appeal deserves consideration. 12. As it transpires from scanning of the material and evidence considered and appreciated by the Court below for recording conviction, the impugned judgment and order does not call for any interference. 13. The submission which has been made by learned advocate, Shri Buddhbhatti referring to the testimony of injured complainant, PW-2 at Exh.30 and FIR at Exh.31 that there is some discrepancy with regard to the weapon and the word 'sickle' is used interchangeable or casually with dharia and, therefore it could not have been accepted or believed, is misconceived. The testimony of the complainant, PW-2 at Exh.30 and his FIR at Exh.31 has stated the version and the manner in which the incident occurred and it cannot be said to be any discrepancy merely because there is a reference to the sickle and dharia. It is required to be noted that there are other injured eyewitnesses on the complainant side, who have been examined as PW-3 at Exh.34, PW-4 at Exh.36 and PW-6 at Exh.38. A scrutiny of the testimony of these eyewitnesses clearly establish about the manner in which the incident has occurred and it fully corroborate with the version of the complainant, PW-2 as stated in his testimony at Exh.30 and FIR at Exh.31. This is further corroborated by the medical evidence in the form of the testimony of Dr. Bhavna Patel, PW-1 and Dr. Harshad Rathod, PW-10 at Exh.42. It is required to be stated that Dr. Bhavna Patel, who has been serving as Medical Officer, Civil hospital, Gandhinagar in her testimony at Exh.12 has stated about the injuries. She had examined the victim and also had referred the victim to the Civil Hospital, Ahmedabad. Further Dr. Harshad Rathod, PW-10 in his testimony at Exh.42 has also clearly stated about the injuries as well as the fact that such an injury could be caused with the weapon, which is said to have been used like sickle, stick and dharia. The panchnama, Exh.61 regarding the recovery of the weapon also corroborated with the testimony of the complainant and the injured eyewitnesses. 14. The panchnama, Exh.61 regarding the recovery of the weapon also corroborated with the testimony of the complainant and the injured eyewitnesses. 14. Therefore when the testimony of the witnesses, which has been discussed in the impugned judgment including the medical evidence, clearly establish about the presence of the accused and it is clearly established that there is no doubt about the place of incident. It has been stated that it has occurred in the vicinity of the temple, where the function was organized and one word cannot be picked up or read in isolation when consistently it has been stated that it was in the vicinity of the temple. Further the accused persons have not disputed about their presence or incident when it is established that they had gone at the scene of offence armed with weapons as they were not invited in the function. The submission that they had started returning after some understand and all of sudden, something had gone wrong, for which, there is no explanation and, therefore, the accused are falsely implicated, is misconceived. Once it is established that the presence of the accused armed with weapon is established whether they had started returning or not, would not have much bearing as it is clearly established that the accused persons were present armed with weapon again suggest about the motive. 15. One more aspect which requires consideration is the medical evidence and the certificate by doctor, PW-10 at Exh.45. The medical evidence of the victim and the testimony of PW-10 at Exh.45 is sufficiently corroborating about the weapon used and the injury caused to the victims. It has been specifically stated referring to the injury caused to Popatji and Govindji that the injury was caused with dharia on the head, meaning thereby, the injury was on the vital part of the body and the injury was of parietal and, therefore, the patient was referred to Emergency Surgery Unit, Dr. Anchaliya and the city scan report confirmed about the fracture on the left parietal bone and exgradual hemorrhage, for which, he has stated in the certificate at Exh.47. He has confirmed that such an injury could be caused with the weapon, dharia. Other injuries are also corroborated by medical certificates of respective injured victims, who are the eyewitnesses. 16. Anchaliya and the city scan report confirmed about the fracture on the left parietal bone and exgradual hemorrhage, for which, he has stated in the certificate at Exh.47. He has confirmed that such an injury could be caused with the weapon, dharia. Other injuries are also corroborated by medical certificates of respective injured victims, who are the eyewitnesses. 16. The submission made by learned advocates for the appellants that the muddamal weapons have not been referred to the FSL as there are no blood stain found and, therefore, there is a flaw in the investigation, is without any substance. It is well accepted that when there is a direct evidence of the injured victim, same has to be considered and merely because there is no report of the FSL, it would not make much difference. A useful reference can be made to the judgment of the Hon'ble Apex Court in case of Rajendra Pralhadrao Wasnik (supra), wherein it has been clearly observed that if the involvement of the accused is proved, inconclusiveness of FSL report and/or absence of it, would not be a ground to discard other evidence. It is well settled principle of law that the evidence has to be read as a whole in its entirety. 17. Further as observed in the judgment of the Hon'ble Apex Court in case of State of U.P. v. Naresh & Ors., reported in (2011) 4 SCC 324 , the appellate court is required to scrutinize the evidence consciously and referring to earlier judgment, it has been observed that, "So, in order to warrant interference by the appellate court, a finding of fact recorded by the court below must be outweighed evidence or such finding if outrageously defies logic as to suffer from the vice of irrationality." 18. In the facts of the case, the reasons recorded by the Court below on appreciation of evidence does not justify the interference. 19. The submission made by learned advocate, Shri Rushabh Shah regarding grant of benefit under the Probation of Offenders Act would also not justify though the Probation of Offenders Act provides for the discretion if the Court is satisfied about the facts justifying the grant of such benefit. Thus the Court has to reach such satisfaction based on material and evidence considering the totality of the facts. Thus the Court has to reach such satisfaction based on material and evidence considering the totality of the facts. Again it would be a matter in the discretion of the Court which the Court may feel to exercise such discretion in a given set of facts and the accused cannot have any say in the facts of the case. Therefore, Section 4of the Probation of Offenders Act empowers the Court to release the offender granting benefit under the Act. The Court is given such discretion if it forms an opinion from the totality of the facts and circumstances that it is expedient to release the offender on probation of good conduct. As discussed above, it would not justify the exercise of any such discretion in favour of the appellant of Criminal Appeal No. 294/2014 as they were absconding and there is no explanation given for such period during which they were absconding. 20. Therefore considering the totality of the facts and the material and evidence on record as discussed hereinabove, the impugned judgment and order recording conviction does not call for any interference and deserves to be confirmed. Therefore both appeals deserve to be dismissed and accordingly stand dismissed. The appellants-original accused Nos. 1, 3 and 4 of Criminal Appeal No. 294/2013 are on bail and, hence, their bail bonds stand cancelled and they are directed to surrender before the jail authority. FURTHER ORDER After the judgment was pronounced, learned advocate, Shri Rushabh Shah appearing for the appellants-original accused Nos. 1, 3 and 4 in Criminal Appeal No. 294/2013 has requested for time to surrender upto eight weeks. The request is granted.