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Gujarat High Court · body

2016 DIGILAW 736 (GUJ)

Tejasbhai v. State of Gujarat

2016-04-05

RAJESH H.SHUKLA

body2016
JUDGMENT Rajesh H. Shukla, J. 1. The present appeal is directed against the impugned judgment and order in Sessions Case No. 36/2012 (Old Sessions Case No. 19/2010) by the Additional Sessions Judge, Limbdi dated 31st March, 2014 recording conviction of the appellant-accused for the offence under Section 307 of the Indian Penal Code imposing sentence to undergo SI for ten years and fine of Rs. 10,000/-, in default, to undergo SI for six months. 2. The facts of the case briefly summarized are that:-- "2.1 On 25.10.2009 at 07:30 in the morning when the victim had started from his house to go to his factory, where he is working, the accused is said to have assaulted with pipe from behind. Therefore, the people in the shop and stall gathered and cousin brother of the complainant also came there. It is the case of the prosecution that the injured victim is said to have conveyed his uncle, Hafiskhan that he has been assaulted by the appellant-accused with the pipe and he may leave him to catch the appellant-accused. Thereafter, the victim was removed to the Hospital at Thangadh and, thereafter, was taken to the Civil Hospital, Rajkot and also to private hospital as stated in detail. The incident is said to have occurred as the victim had illicit relations with the sister-in-law of the appellant-accused, which has led to this assault. Therefore, the complaint came to be lodged by brother of the complainant, Imrankhan, which has been registered as C.R. No. I-58/2009 with Thangadh Police Station. 2.2 After the investigation was over, the chargesheet for the alleged offences came to be filed and as the offence was triable by the Court of Sessions, it was committed to the Court of Sessions. 2.3 Thereafter, the Sessions Judge framed the charges and proceeded with the trial. 2.4 After recording of the evidence of the prosecution witnesses was over, the Sessions Judge recorded further statements of the accused under Section 313of the Code of Criminal Procedure, 1973. 2.5 After hearing learned APP as well as learned advocates for the defence, the Sessions Judge passed impugned judgment and order recording conviction as stated therein." 3. It is this judgment and order which has been assailed by the appellant-original accused on the grounds stated in the memo of appeal. 4. Heard learned advocate, Shri Ashish Dagli for the appellant-accused and learned APP Ms. It is this judgment and order which has been assailed by the appellant-original accused on the grounds stated in the memo of appeal. 4. Heard learned advocate, Shri Ashish Dagli for the appellant-accused and learned APP Ms. Hansa Punani for the respondent-State. 5. Learned advocate, Shri Dagli referred to the testimony of Imrankhan Pathan, PW-1, Exh. 12 and his complaint at Exh. 13. He also submitted that initially name of the accused was not disclosed and in fact, the complaint is given on the basis of the information given by Hafiskhan Pathan. He referred to the testimony of Hasifkhan Pathan, PW-2, Exh. 15 and Mohsin Solanki, PW-3, Exh. 16. Learned advocate, Shri Dagli, therefore, submitted that all these witnesses have stated that the complaint came to be filed by the brother of the victim, Imranbhai on the basis of the information given by Hafiskhan. He submitted that Hafiskhan, who is said to have been there, has not disclosed the name of the accused initially even though the doctor at Thangadh Hospital as well as Rajkot Civil Hospital inquired about the incident. Learned advocate, Shri Dagli, therefore, submitted that on one hand, it is stated that the victim is said to have said to Hafiskhan about who has assaulted him but Hafiskhan or anybody has not disclosed it either to the Police or to the doctors at the Hospital, which is not explained. He also referred to the testimony of the victim, PW-4 at Exh. 19 and also testimony of one Vinodbhai Detroja, PW-6, Exh. 21. Learned advocate, Shri Dagli submitted that other witness like PW-6, who is eyewitness, has not corroborated or supported the prosecution case as he has turned hostile. He submitted that similarly, PW-7, Exh. 23 and PW-9, Exh. 26 have not corroborated the prosecution case with regard to the incident and the manner of the incident. Learned advocate, Shri Dagli referred to the testimony of Dr. Prakashchandra Modha, PW-13, Exh. 43 and pointedly referred to the injury certificates and case papers and submitted that though the date of incident is 25.10.2009 and the date of discharge is 23.11.2009, the victim was conscious as it is stated by the doctor that before 4-5 days, the discharge was given and the patient was conscious and still the statement of the victim is not recorded. Thus, he submitted that there is a delay in filing the complaint as well as delay in recording the statement and it is a case of false implication because of the earlier incident. He also referred to the testimony of Dr. Dharmendrasinh Zala, PW-17, Exh. 60. Learned advocate, Shri Dagli has also referred to the testimony of PW-18, Exh. 63, who is ASI and submitted that he has recorded the statement of the injured and has also recorded complaint at Exh. 13 but he has not collected necessary material, for which, he pointedly referred to the testimony of this witness, Exh. 63. 6. Learned advocate, Shri Dagli therefore submitted that there is delay in filing FIR inasmuch as the incident has occurred in the morning and the complaint/FIR is filed in the evening at 19:54 hours. He submitted that initially the name of the accused is not given though inquired by the Doctors at Hospital at Than as well as Civil Hospital, Rajkot. He submitted that initially the history given to the doctor referred to the assault by unknown person. Learned advocate, Shri Dagli submitted that the case of the prosecution is based on the testimony of four main witnesses i.e. the injured himself, Imrankhan, Hafiskhan and Mohsin. He submitted that Imrankhan has lodged the complaint on the basis of what was conveyed by Hafiskhan. He further submitted that Hafiskhan has stated that he reached the place of incident when the victim was injured and he is said to have conveyed to him about the name of the assailant (the appellant-accused). Learned advocate, Shri Dagli submitted that if the name was disclosed by the victim, there is no reason for not disclosing the name of the appellant-accused, who had assaulted the victim to the doctor when history was asked by the doctor and it has also not been stated to the Police initially. Therefore, learned advocate, Shri Dagli submitted that it raises doubt about the genuineness of the complaint as well as the manner in which the incident is said to have occurred. He submitted that in fact, as referred to in the yadi, it is stated that there is assault by some unknown person, which is not explained by the prosecution. Therefore, learned advocate, Shri Dagli submitted that it raises doubt about the genuineness of the complaint as well as the manner in which the incident is said to have occurred. He submitted that in fact, as referred to in the yadi, it is stated that there is assault by some unknown person, which is not explained by the prosecution. Learned advocate, Shri Dagli submitted that there is no evidence as to how the accused could be connected or is said to have involved in the assault to the victim. He submitted that on the basis of the material and evidence on record, particularly, these four witnesses, the complainant and Mohsin Solanki are said to have knowledge about the incident on the basis of what was conveyed by Hafiskhan. He submitted that Hafiskhan is said to have informed by the victim himself but does not disclose to anyone and if he had conveyed to other witnesses then, they would have disclosed it to the doctors as well as police. Learned advocate, Shri Dagli submitted that therefore it raises doubt, particularly, when there is past incident with regard to the relationship of the victim and the sister-in-law of the appellant-accused. He submitted that therefore it is a case where somebody might have assaulted and the appellant-accused is sought to be fixed in by way of false implication. He also referred to the FIR and submitted that FIR is itself doubtful and the case of the prosecution looses its significance and trustworthiness about the incident. He again referred to the testimony of the complainant, PW-11 at Exh. 12. Further in the same manner, he referred to the testimony of PW-18 at Exh. 63 and testimony of Hafiskhan, PW-2 at Exh. 15. He emphasized referring to the testimony of PW-2, Exh. 15 and submitted that he is said to have stated that the victim had informed that he may leave but he may go after the appellant and catch him. Similarly, he referred to the testimony of Mohsin, PW-3, Exh. 16 and submitted that he is said to have stated in the same manner that the victim had said that the appellant-accused may be caught. Learned advocate, Shri Dagli submitted that in the cross-examination, this witness has admitted that it is not stated by him in his statement before the Police. 16 and submitted that he is said to have stated in the same manner that the victim had said that the appellant-accused may be caught. Learned advocate, Shri Dagli submitted that in the cross-examination, this witness has admitted that it is not stated by him in his statement before the Police. He therefore submitted that it is a case of improvisation in his testimony, which was not stated initially in his statement before the Police under Section 161 of the Code of Criminal Procedure, 1973. 7. Learned advocate, Shri Dagli submitted that though vital and important documents have been collected during the course of investigation, they have not been produced on record deliberately and have been suppressed, which raises doubt. For that purpose, he referred to the testimony of Yunusbhai Kureshi, PW-18 at Exh. 63 and submitted that he is the ASI at Thangadh Police Station. He submitted that in his testimony at Exh. 63, he has referred to entry No. 5/2009 in the morning, which is not produced on record. Learned advocate, Shri Dagli referred to the FIR at Exh. 13 and submitted that it refers to the entry No. 14/2009 and then what was the entry No. 5/2009 is not brought on record. Similarly, he referred to the certificate of MLC Form of Gokul Hospital and submitted that it refers to 'A' Division Police Station, Rajkot, whereas the witnesses are said to have stated about Pradhyumannagar Police Station, which is said to have informed to the Thangadh Police Station. Again he submitted that it raises doubt as to how the Police at Rajkot would have any clue. 8. Learned advocate, Shri Dagli also submitted that though the victim was removed to Rajkot Civil Hospital, case papers are not placed on record and no doctor is examined. He again referred to the papers produced on record i.e. MLC Forms and submitted that as it is recorded, the police papers were done at the Rajkot Civil Hospital as stated by this witness (ASI). Further learned advocate, Shri Dagli submitted that PSI, Nanubhai is not examined. 9. Learned advocate, Shri Dagli therefore submitted that there are many infirmities in the case of the prosecution. He submitted that even if the evidence of three witnesses are considered, it does not inspire confidence, particularly, when the proper record is not brought on record. Further learned advocate, Shri Dagli submitted that PSI, Nanubhai is not examined. 9. Learned advocate, Shri Dagli therefore submitted that there are many infirmities in the case of the prosecution. He submitted that even if the evidence of three witnesses are considered, it does not inspire confidence, particularly, when the proper record is not brought on record. Learned advocate, Shri Dagli also referred to the testimony of the victim, PW-4 at Exh. 19 and submitted that the victim has also admitted that though it was asked by doctor at the Thangadh Police Station as well as Civil Hospital, Rajkot, he did not disclose the name of the accused, who had assaulted him. Learned advocate, Shri Dagli, therefore, emphasized that again there is no justification and explanation for non-discloser of the name of the accused at the first instance. He therefore submitted that considering the delay in filing FIR as well as delay in recording the statement and considering the past history about the motive for false implication, the conviction may not be sustained and the present appeal may be allowed. 10. Learned advocate, Shri Dagli submitted that in further statement recorded under Section 313 of the Code of Criminal Procedure, 1973, the appellant-accused has stated about earlier incident and false implication with regard to the relation of the victim with the sister-in-law of the accused. He also referred to the judgment of the Hon'ble Apex Court in case of Ganesh Bhavan Patel v. State of Maharashtra, reported in AIR 1979 SC 135 and emphasized the observations made in Paragraph No. 18. 11. Learned advocate, Shri Dagli has made alternate submission with regard to the modification/reduction in the sentence referring to the background and the age of the appellant-accused. He has also stated that at-least sentence may be modified from simple imprisonment to rigorous imprisonment so that he could avail the benefit of the remission. 12. Learned APP Ms. Punani referred to the testimony of witnesses, particularly, PW-1, complainant at Exh. 12, PW-2 at Exh. 15 and PW-4, victim at Exh. 19. He has also stated that at-least sentence may be modified from simple imprisonment to rigorous imprisonment so that he could avail the benefit of the remission. 12. Learned APP Ms. Punani referred to the testimony of witnesses, particularly, PW-1, complainant at Exh. 12, PW-2 at Exh. 15 and PW-4, victim at Exh. 19. She also submitted that the case of the prosecution is required to be considered in background of the facts that the victim himself, who is injured victim, has stated that he was assaulted by the appellant-accused and then he fell down when people gathered and he said to have informed to his brother that he may leave and catch the appellant-accused. Thus the injured witness himself has identified the appellant-accused, who had assaulted him and, thereafter, the witness is said to have informed to the brother of the victim, who has lodged the complaint. She submitted that the motive, which is sought to be attributed, is proved that it is not in dispute that there was an illicit relationship of the victim with the sister-in-law of the appellant-accused, however that by itself may not be a ground to discard entire evidence of the prosecution when there is strong motive clearly established in this regard. She submitted that the injury is corroborated by the medical evidence in the form of testimony of two doctors as well as case papers produced at Exh. 44, 45 & 46. Learned APP Ms. Punani referred to the case papers and medical certificate in detail to emphasis about the nature of injury and emphasized that the injuries were serious and on the vital part of the body i.e. head. He submitted that the victim was required to undergo operation and the doctor has specifically stated that the condition was not normal. Learned APP Ms.Punani submitted that this itself will suggest about the grievous injury, which is corroborated. She submitted that once the injury is clearly established, the injured victim himself has stated that he has been assaulted by the accused, cannot be brushed aside merely because of some doubt is raised for delay in filing FIR. Learned APP Ms.Punani submitted that this itself will suggest about the grievous injury, which is corroborated. She submitted that once the injury is clearly established, the injured victim himself has stated that he has been assaulted by the accused, cannot be brushed aside merely because of some doubt is raised for delay in filing FIR. She submitted that there is no delay in filing the FIR inasmuch as after the victim was assaulted, he was removed to one hospital and, thereafter looking to his condition, he was removed to Rajkot Civil Hospital, which may have taken time for the family in proceeding to register the complaint and, therefore, it cannot be said that there is delay in filing the FIR. Similarly, she submitted that merely because initially the name of the appellant-accused, who had assaulted the victim, is not disclosed, it does not justify that entire evidence of the prosecution may be discarded. She submitted that non-discloser of the name of the appellant would be irrelevant in light of the specific evidence of the injured-victim himself stating about the injury, which is corroborated by the medical evidence. Learned APP Ms. Punani submitted that it may also have to be considered that even after the victim had gained consciousness because of the head injury, his condition may not be such that his statement could be recorded and, therefore, his statement could have been recorded later on after he was discharged. She submitted that it is not necessary that moment he was discharged from the hospital, statement could be recorded as he has regained conscious. Therefore, learned APP Ms. Punani submitted that in view of the material and evidence on record, the impugned judgment and order recording conviction is just and proper and the present appeal may not be entertained. 13. In view of these rival submissions, it is required to be considered whether the present appeal deserves consideration. 14. As it transpires from the material and evidence and on scanning of the material and evidence on record, the victim is said to have been assaulted by the accused. 13. In view of these rival submissions, it is required to be considered whether the present appeal deserves consideration. 14. As it transpires from the material and evidence and on scanning of the material and evidence on record, the victim is said to have been assaulted by the accused. The injured-victim, who is examined as PW-4 in his testimony, has clearly stated that when he was going on foot to his factory, where he was working and when he reached near Thangadh Jogasan road, he received blow and fell down and, thereafter, he looked back and he had seen the accused, who was armed with pipe and, thereafter, another blow was inflicted and he fell down. He has stated that thereafter he lie down on the road and people had gathered. He has stated that his cousin, Hafiskhan and Mohsin came there and he is said to have informed that the appellant-accused has assaulted with the pipe. Thus the injured himself has seen the accused, who has assaulted him and he is said to have immediately informed to his two cousins, thereafter, he was unconscious and was removed to Thangadh Hospital and, thereafter, to Rajkot Civil Hospital. Further, the injuries were such, which have been reflected from the medical case papers produced on record at Exhs.44, 45 and 46 and also other papers and testimony of doctor. The injury with such pipe is not in dispute. The main emphasis by learned advocate, Shri Dagli on the aspect of the involvement of the appellant-accused stating that merely because the injury has been received, which may have been given by somebody and the accused is sought to be implicated falsely, require to be considered in background of the facts and circumstances. The submission, which has been made, is purely based on hypothesis that somebody might have inflicted the blow and the accused is sought to be implicated. The motive for such implication is suggested as illicit relation between the victim and sister-in-law of the appellant-accused. This aspect has also been referred to by the accused in his further statement under Section 313 of the Code of Criminal Procedure, 1973. However the injured himself has identified the accused, who has assaulted him, which cannot be brushed aside merely because the contention is raised that somebody might have assaulted the victim. This aspect has also been referred to by the accused in his further statement under Section 313 of the Code of Criminal Procedure, 1973. However the injured himself has identified the accused, who has assaulted him, which cannot be brushed aside merely because the contention is raised that somebody might have assaulted the victim. Such hypothesis or the suggestion without any prima facie material or basis, cannot be readily accepted disregarding the testimony of the injured eyewitnesses. His statement is further corroborated by the testimony of other two cousins, who were first in point of time reached the victim when he fell down and the victim is said to have stated to them to catch the accused. The testimony of Hafiskhan, PW-2 and Mohsin, PW-3 both have corroborated. PW-2 in his testimony at Exh. 15 has also stated that the victim had disclosed the name of the accused, who had assaulted him. However, the fact remains that initially when the history was recorded and inquiry was made by the doctor at Thangadh Hospital as well as Civil Hospital, Rajkot, the complainant-brother of the victim, PW-1 or PW-2 have not disclosed the name of the appellant-accused, who had assaulted the victim. At the same time, it cannot be overlooked that the injury of the victim were such that they would first make efforts for the treatment. Again submission made by learned advocate, Shri Dagli that delay in filing the FIR is fatal to the prosecution case as the incident has occurred in the early morning at about 7 O'clock and the complaint is filed in the evening, is also misconceived. It is required to be mentioned that looking to the nature of injury when the victim is rushed to the one hospital to another hospital i.e. Thangadh Hospital to Rajkot Civil Hospital, the cousin or complainant-brother of the victim would be more concerned with the treatment and life of the victim rather than having a recourse for the complaint. It is not in dispute that the injuries were on the vital part of the body i.e. head and were serious, where the victim was required to undergo treatment. Further, he was unconscious for some time as it is evident from the case papers and the medical evidence. It is not in dispute that the injuries were on the vital part of the body i.e. head and were serious, where the victim was required to undergo treatment. Further, he was unconscious for some time as it is evident from the case papers and the medical evidence. After he regaining consciousness as it is stated in the testimony of the doctor as well as case papers, though he had regained consciousness, he was not able to speak. Dr. Prakashchandra Modha, PW-13 in his testimony at Exh. 43 has clearly stated on this aspect that when the certificate at Exh. 44 dated 09.11.2009 was given though the victim was conscious, he had effect of paralysis on the left side of the body and was not able to speak. It is also stated that he is not out of danger. Again the certificate, Exh. 45 refers to the condition on 23.11.2009 that he was conscious and mentally sound. But the fact remains that he had received serious injuries. It is in these circumstances, the statement of the victim may also not have been recorded or may not have been permitted medically. Further recovery of consciousness is one thing and the ability of the patient to comprehend things to state in the form of statement, requiring more concentration or recollection is another thing as the victim had head injury and it may not have been desirable for him to have any stress and, therefore even though, he might have regained consciousness, his statement may not have been recorded for a week or two immediately thereafter leading to delay in recording statement. Therefore the submission made by learned advocate, Shri Dagli is without any merit. Much emphasis given by learned advocate, Shri Dagli that initially in the vardhi as well as in the history, it was stated that the assault made by unknown person without naming the accused of the accused raises doubt, it is also misconceived. It is not necessary that the name of the assailant has to be stated and if it is not stated initially, it would be a fatal to the prosecution case. It depends on the facts and circumstances like in the present, where due to head injury, the victim may not have been able to speak and as he was unconscious, it may not have been stated. Further the testimony of the victim, PW-4 at Exh. It depends on the facts and circumstances like in the present, where due to head injury, the victim may not have been able to speak and as he was unconscious, it may not have been stated. Further the testimony of the victim, PW-4 at Exh. 19 clearly refers to this aspect and the victim has stated that at Than Hospital, doctor had not inquired or asked about the name of the assailant and he was conscious. He has also stated that doctor at Rajkot Hospital had asked but he had not given the name of the assailant. In fact the victim has conveyed to his cousin brother (complainant, PW-1) and he may not have stated initially to the doctor. Therefore non-discloser of the name of the assailant, who had assaulted, could not be given a weightage, which would knock out other evidence including the testimony of the victim himself. His testimony specifically identifying the appellant that he had assaulted him with a particular weapon like pipe with which such an injury could be caused, cannot be brushed aside. 15. Another facet of submission made by learned advocate, Shri Dagli with much emphasis about the discrepancies and omissions in the testimony of the witnesses, which have been referred to hereinabove, require a close scrutiny. The submission made by learned advocate, Shri Dagli referring to the testimony of PW-1 at Exh. 12 and also cross-examination that in his statement, though he was aware about the name of the assailant, it was not disclosed. Similarly, the testimony of PW-2 at Exh. 15 that he had not disclosed and further fact that the victim is said to have stated that he may leave him and catch the accused, who had assaulted him, is not to be found in his statement before the Police. Therefore the submission that there is improvisation in the testimony of the witnesses including the victim, cannot be said to be improvisation. The testimony of the victim is consistent that he had asked his cousin to catch the appellant, who had assaulted him and he had given the name of the accused, who had assaulted him. Further PW-2 and PW-3, who had first in point of time, reached there immediately after the assault, they have also stated and admitted that the victim had disclosed the name of the appellant-accused, who had assaulted him. Further PW-2 and PW-3, who had first in point of time, reached there immediately after the assault, they have also stated and admitted that the victim had disclosed the name of the appellant-accused, who had assaulted him. Therefore the omissions in the statement recorded by the Police qua a particular thing would not destroy the prosecution case. It is well accepted that the evidence or testimony of witnesses has to be read as a whole and one line here or there may not be sufficient to discard the entire evidence. 16. One more aspect which has been emphasized about the investigation stating that it has not been fair as certain things have not been brought on record, particularly, entry referred to by ASI in his testimony at Exh. 63. Learned advocate, Shri Dagli has referred to the testimony of PW-15 at Exh. 63, who is ASI of Thangadh Police Station and he pointedly referred to the FIR at Exh. 13 and submitted that it refers to the station diary entry No. 14/2009, whereas earlier there is reference to entry No. 5/2009 and that has not been brought on record. Further the witness has stated about the intimation from Pradhyumannagar Police Station to Thangadh Police Station and as rightly submitted, there is nothing to show as to how there could be a communication to Pradhyumanangar Police Station, particularly, when MLC form of Gokuk Hospital referred to 'A' Division Police Station, Rajkot. Moreover, these papers of Gokul Hospital, MLC forms refers to the fact that at the Rajkot Civil Hospital, police papers have been made suggesting that the Police at Rajkot has taken up some procedure. At the first blush, this argument may sound appealing but on the little scrutiny, it would be evident that the witness, ASI, PW-18 in his testimony at Exh. 63 has clearly stated that he had gone from Thangadh Police Station to Civil Hospital and in fact, when the victim was there in the Civil Hospital, the Police Constable at the Civil Hospital may have intimated to the local police at Rajkot and, thereafter, ASI of Thangadh Police Station had gone to Civil Hospital, Rajkot. Therefore this so called missing link in order to create doubt about the investigation does not appear to be so relevant, which can be said to have caused any prejudice to the accused. Therefore this so called missing link in order to create doubt about the investigation does not appear to be so relevant, which can be said to have caused any prejudice to the accused. Though the concerned Police like PSI could have been examined to clarify, it would not be justified to overlook the prosecution case. Therefore the submission made by learned advocate, Shri Dagli relying upon the judgment of the Hon'ble Apex Court in case of Ganesh Bhavan Patel (supra) would not have any relevant. The observations made therein have to be considered in background of the facts and material and evidence. 17. One more aspect which requires to be noted particularly with regard to the motive on the contrary suggest about the strong possibility of the motive for the appellant-accused and the assault and attack upon the victim because of the relationship of the victim with the sister-in-law of the accused. In fact though the submission has been made that it is a case of false implication, it could be suggestive of the strong motive by the accused to assault the victim. Therefore, the present appeal cannot be entertained qua the conviction of the appellant-accused. 18. However the alternate submission made by learned advocate, Shri Dagli that the sentence from simple imprisonment may be substituted as rigorous imprisonment, deserves consideration. 19. In the circumstances, the present appeal stands allowed partly. However while maintaining conviction as it is for the alleged offence under Section 307 of the Indian Penal Code, the simple imprisonment is converted into rigorous imprisonment for the period specified by the Court below.