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2016 DIGILAW 98 (GUJ)

Bhopa Kamabhai Bharwad v. State of Gujarat

2016-01-13

K.S.JHAVERI, R.P.DHOLARIA

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JUDGMENT : K.S. Jhaveri, J. 1. Qua the accused No. 3, the Appeals abate. 2. Heard learned Advocates for the appellants accused and learned Additional Public Prosecutor for the respondent - State Mr. L.R. Pujari. 3. Criminal Appeal No. 1674/2004 is an Appeal preferred by the appellants - accused against the judgment and order of conviction and sentence dated 15.09.2004 passed by the learned Additional Sessions Judge, First Fast Track Court, Amreli in Sessions Case No. 60/1999 whereby under Section307 read with Section 114 of the Indian Penal Code, the original accused No. 1 and 3 were handed rigorous imprisonment for two years and fine of Rs. 200/-, in default simple imprisonment for one month, under Section 447 read with Section 114 of the Indian Penal Code, the original accused No. 1 and 3 were sentenced to undergo rigorous imprisonment for one month, under Sections 161 and 162 of the Gujarat Panchayat Act, the original accused No. 1 and 3 were sentenced to undergo simple imprisonment for one month, under Section 323 of the Indian Penal Code the original accused No. 2 was sentenced to undergo rigorous imprisonment for one month, under Section 325 of the Indian Penal Code the original accused No. 2 was handed rigorous imprisonment for nine months and fine of Rs. 200/-, in default simple imprisonment for one month, under Section 447 of the Indian Penal Code the original accused No. 2 was sentenced to undergo rigorous imprisonment for one month, under Sections 161 and 162 of the Gujarat Panchayat Act the original accused No. 2 was handed simple imprisonment for one month. The original accused No. 1 and 3 was acquitted of the offences under Sections 504 of the Indian Penal Code and under Section 135 of the Bombay Police Act whereas the original accused No. 2 was also acquitted under the above cited offences. 4. Criminal Appeal No. 1918/2004 is an Enhancement Appeal preferred by the appellant - State being aggrieved by the judgment and order of conviction and sentence as stated above. 5. The case in brief and the incident which occurred on 20.03.1999 are as under:- "3.1. The complainant was residing with his family and used to cultivate his farm. On the said day, the complainant had gone alongwith his two sons to the farm for agricultural work. 5. The case in brief and the incident which occurred on 20.03.1999 are as under:- "3.1. The complainant was residing with his family and used to cultivate his farm. On the said day, the complainant had gone alongwith his two sons to the farm for agricultural work. At that moment, the complainant observed that in the farm of his elder brother, all the accused alongwith another unknown person were present with their cattle. It is the case of the prosecution that the complainant asked the accused to remove the cattle from the fields. However, it is alleged that the accused got incensed and started abusing the complainant. The accused No. 1 and 3 are alleged to have given an axe blow on the head of the complainant and the accused No. 3 also inflicted three blows with a stick on the leg of the complainant. The other unknown person is alleged to have given fist blows to the son of the complainant. At that juncture, one - Patel Kantibhai Popatbhai arrived at the spot of the incident and the accused then ran away. The complainant was admitted to the hospital and the complaint was filed. 3.2. The chargesheet was led before the learned Magistrate and the case was committed to the Sessions Court, being Sessions triable case. The accused pleaded not guilty to the charges levelled against them. On completion of the evidence of prosecution, further statement of the accused under Section 313 of the Code of Criminal Procedure were recorded. 3.3. At the time of the trial, the prosecution examined the following witnesses:- Particulars Exhibit PW1 – Dr. Shantilal Jadavbhai Vaghasia 14 PW2 – Maganbhai Jivrajbhai Sojitra (complainant) 23 PW3 – Dr. Yusufbhai Mohammedbhai Master 26 PW4 – Manharbhai Maganbhai 30 PW5 – Rajeshbhai Maganbhai 31 PW6 – Harjibhai Chhaganbhai 33 PW7 – Devjibhai Virjibhai 36 PW8 – Shambhubhai Jairambhai 40 PW9 – Dr. Bhimjibhai Laljibhai Dabhi 42 PW10 – Rambhai Jeturbhai 45 PW11 – Bichubhai Dadubhai 47 PW12 – Ganshyambhai Hatisinh Gohil 50 PW13 – Ishwarbhai Ratnabhai Pargi 57 The prosecution also relied upon various documentary evidence, some of them are:- Particulars Exhibit Certificate of Dr. Bhimjibhai Laljibhai Dabhi 42 PW10 – Rambhai Jeturbhai 45 PW11 – Bichubhai Dadubhai 47 PW12 – Ganshyambhai Hatisinh Gohil 50 PW13 – Ishwarbhai Ratnabhai Pargi 57 The prosecution also relied upon various documentary evidence, some of them are:- Particulars Exhibit Certificate of Dr. Waghasiya regarding the examination the of the complainant 15 Complaint 24 Certificate regarding the examination of the complainant by the Doctor of Damnagar 27 Panchnama of the position of the body by the complainant 34 Panchnama of the scene of the offence 37 Panchnama of the recovery of the muddamal and the arrest of the accused – Bhoopa Kama 38 Panchnama of the seizure of the injured’s blood stained clothes 39 Certificate giving by the medical officer of Amreli regarding the examination of the complainant 43 Panchnama of the recovery of the muddamal and arrest of the accused 46 Map of the scene of offence 48 Report of the medical officer, Amreli to the PI, Amreli 51 Report of PSO, Amreli to the police Sub-Inspector, Damnagar 52 Report of PSO, Damnagar to the Police Sub-Inspector, Damnagar 53 The analysis of the muddamal by the Chemical Analyst 54 Forwarding letter and the analysis report of the chemical analyser 55 Serological Department’s Analysis Report 56 Notification regarding the prohibition of weapon by the District Magistrate 58 3.4. At the end of the trial, the learned Additional Sessions Judge passed the above judgment and order." 6. Learned Advocate appearing for the appellants accused Mr. Virat G. Popat has submitted that the prosecution case is purely based on circumstantial evidence and the prosecution has to prove each one of the circumstances which point to the guilt of the accused and the prosecution has failed to do so. It is further submitted that the prosecution witness - Harjibhai Chhaganbhai who has deposed at Exhibit 33 has deposed that he has not seen the offence being committed but when he reached at the place of incident, the complainant was in his full senses who stated that he had a quarrel with the Bharwad. It is further submitted that the complainant had not given any names of the accused then. It is also submitted that the other panchas have not supported the case of the prosecution. It is further submitted that the complainant has changed his version time and again and the role of the accused are also doubtful. It is further submitted that the complainant had not given any names of the accused then. It is also submitted that the other panchas have not supported the case of the prosecution. It is further submitted that the complainant has changed his version time and again and the role of the accused are also doubtful. Considering the above and the medical evidence, it is submitted that this is a fit case which requires the interference of this Court and the judgment and order of the learned Additional Sessions Judge be upturned. 7. On the other hand, learned Additional Public Prosecutor Mr. L.R. Pujari has taken this Court through the judgment and order of the learned Additional Sessions Judge and has submitted that the learned Judge has not adequately punished the accused for the offences under Sections 306 read with 114 of the Indian Penal Code. It is further submitted that looking to the evidence of the complainant at Exhibit 23, Manhar Maganbhai at Exhibit 30 and Rajesh Maganbhai at Exhibit 31, it transpires that the accused had inflicted about 55 blows of stick and axe upon the complainant. It is also submitted that the learned Judge while awarding sentences to the accused has not considered the guilty of the offences and therefore, maximum punishment ought to be awarded for the offences under Sections 306 and 114 of the Indian Penal Code. 8. We have heard learned Advocates appearing for the respective parties and perused the records of the case. We have taken into consideration the medical evidences, more particularly the evidences of PW1 - Dr. Shantilal Jadavbhai Vaghasia, PW3 - Dr. Yusufbhai Mohammedbhai Master and PW9 - Dr. Bhimjibhai Laljibhai Dabhi. In the Certificate issued by Dr. Shantilal Jadavbhai Vaghasia, various injuries on the complainant - Maganbhai Jivrajbhai Sojitra were noticed like:-- "1. Stitched C.L.W.'s, three in number size 1", 1 1/2" and 2" over occipital region. Scalp x-ray skull shows fracture of temporal bone. 2. Undisplaced fracture intercondylar eminence right tibia. 3. Stitched CLW: size 1/2" over anterior aspect of upper leg left side. 4. Contusion posterior aspect of left chest. 5. Tenderness and swelling right upper leg and both calves." We are of the view the injuries caused to the witnesses and the complainant are proved beyond reasonable doubt. 2. Undisplaced fracture intercondylar eminence right tibia. 3. Stitched CLW: size 1/2" over anterior aspect of upper leg left side. 4. Contusion posterior aspect of left chest. 5. Tenderness and swelling right upper leg and both calves." We are of the view the injuries caused to the witnesses and the complainant are proved beyond reasonable doubt. In view of the evidence led by the complainant - Maganbhai Jivanbhai Sojitra and his two sons PW4 - Manharbhai Maganbhai and PW5 - Rajeshbhai Maganbhai, the presence of the accused is also proved beyond reasonable doubt. 9. The incident occurred in the year 1999. Almost 16 years have passed and no untoward incident has occurred between the two sides and peace is prevailing. Though this appears to be case where there should be an enhancement of sentence, considering the above time gap, we confirm the judgment and order of conviction and sentence dated 15.09.2004 passed by the learned Additional Sessions Judge, First Fast Track Court, Amreli in Sessions Case No. 60/1999. The accused are on bail and their bail bond stands cancelled. The accused shall surrender within a period of ten (10) weeks from today, failing which the concerned Trial court shall issue non-bailable warrant in the name of the accused to secure their presence to serve the remaining period of sentence. The State is at liberty to consider for remission the case of the accused, if so found fit and in accordance with law. 10. In view of the above judgment passed in Criminal Appeal No. 1674/2004, Criminal Appeal No. 1918/2004 would not survive and hence, the same stands dismissed. Bail and bail bond, if any, stands cancelled. Record and proceedings be sent to the concerned Trial Court forthwith.