Research › Search › Judgment

Gujarat High Court · body

2017 DIGILAW 118 (GUJ)

Sabirali Saiyed Jafar Kadri v. State of Gujarat

2017-01-18

Z.K.SAIYED

body2017
JUDGMENT : Z.K. Saiyed, J. 1. This appeal is at the instance of appellants - original accused, in an Appeal under Section 374(2) of the Code of Criminal Procedure and is directed against an judgment and order dated 7.2.2012 passed by the learned Seventh (Ad-hoc) Additional Sessions Judge, Surat, in Sessions Case No. 151 of 2007, by which learned Sessions Judge has convicted the appellants - accused and has ordered the appellant No. 1 to undergo sentence of 5 years simple imprisonment and to pay a fine of Rs. 5,000/-, in default, to further undergo simple imprisonment for three months, for the offence punishable under Section 307 read with Section 114 of the Indian Penal Code and Section 135 of the Bombay Police Act. Learned Sessions Judge has further ordered the appellant No. 2 to undergo the sentence of 1 year simple imprisonment and to pay a fine of Rs. 2,500/-, in default, to further undergo simple imprisonment for one month, for the offence punishable under Section 307 read with Section 114 of the Indian Penal Code and Section 135 of the Bombay Police Act. All the sentences shall run concurrently. 2. Brief case of the prosecution is that on 29.6.2004 about 21:45 Hrs., the accused entered in the house of the complainant situated at House No. 11/2260-A, Variyavi Bazar, Kolivad, Surat and at the houses of the accused, Supply Department raided as the accused were having cell gas Company agency. Therefore, the accused had doubt that the complainant had given said information to the Department. Therefore, the accused after entering into the house of the complaint, abused the complainant and then, accused No. 1 made assault by ax upon the head of the complainant and accused No. 3 made assault on left wrist of the complainant. The accused No. 2 made assault by iron pipe upon the complainant and the accused No. 4 beaten the complainant and administered threat to kill him. Therefore, the complainant was registered before Chowk Bazar Police Station vide C.R. No. I 107 of 2004 for the offence under Section 307, 326, 323, 452, 504, 506(2), 114 of the Indian Penal Code and Section 135 of the Bombay Police Act. Thereafter, charge-sheet was filed by the learned trial Court and then the case was committed to the Court of Sessions, where same is registered as Sessions Case No. 151 of 2007. Thereafter, charge-sheet was filed by the learned trial Court and then the case was committed to the Court of Sessions, where same is registered as Sessions Case No. 151 of 2007. The accused pleaded not guilty to the charge and claimed to be tried. 3. The prosecution has also examined following witnesses, which are as under: Sr. No. Name of the Document Exh. 1. P.W.1 Dr. Firoz Asfak Khan 22 2. P.W.2 Ashokbhai Jamnadas Karjiya 27 3. P.W.3 Saiyad Nizamuddin Hasanbhai Saiyed 29 4. P.W.4 Mohammad Hanif Mohmmad Salim Shaikh 31 5. P.W.5 Iqbal Abdul Majid Munsi 32 6. P.W.6 Bismillahbegum Saiyed Nizamuddin Saiyed 7. P.W.7 Saiyed Naruddin Hasan Kadri 37 8. P.W.8 Shankarbhai Motibhai Senva 38 9. P.W.9 Aiyub Pirmohmmad Ranrej 42 10. P.W.10 Rafiqmiya Gorumiya Shaikh 44 11. P.W.11 Kaiyumbhai Umarbhai Pathan 46 12. P.W.12 Laxmansinh Ratansinh Parmar 47 4. The prosecution produced following documentary evidence: Sr. No. Name of the Document Exh. 1. Medical Certificate issued Lokhat Hospital 23 2. Medical treatment certificate issued by Dr. Firozkhan 24 3. Panchnama – recovery of weapons 28 4. Complaint 30 5. Yadi 39 6. Panchnama of cloths of the complaint 43 7. Yadi issued to FSL 49 8. Muddamal Ravangi Nondh 50 9. Receipt issued by FSL for Muddamal 52 10. FSL report 52 11. Serological Report 53 5. Thereafter, after filing closing purshis by the prosecution, further statements of accused persons under Section 313 of the Code of Criminal Procedure, 1973 were recorded. The accused persons have denied the case of the prosecution and submitted that they are innocent persons. 6. At the conclusion of trial and after appreciating the oral as well as documentary evidence, the learned Sessions Judge vide impugned Judgment, convicted and sentenced the accused as stated above. 7. Being aggrieved by and dissatisfied with the said judgment and order dated 7.2.2012 rendered by the learned Seventh (Ad-hoc) Additional Sessions Judge, Surat, in Sessions Case No. 151 of 2007, the appellant- accused have preferred the present appeal before this Court. 8. Learned advocate Mr. Bukhari appearing for the appellants stated that the judgment and order passed by the learned trial Judge is contrary to law and evidence on record. He further stated that the prosecution failed to prove its case beyond reasonable doubt. 8. Learned advocate Mr. Bukhari appearing for the appellants stated that the judgment and order passed by the learned trial Judge is contrary to law and evidence on record. He further stated that the prosecution failed to prove its case beyond reasonable doubt. He also submitted that even there is no cogent evidence against the appellants for the so called assault upon the complainant on 29.6.2004 and the prosecution did not lead any evidence for the motive of the appellants. He also submitted that the so called raid was carried out by the Supply Department on 29.6.2004 i.e. the day of the incident and the Department seized the gas cylinders from the house of the accused. Therefore, the story narrated by the complainant in the complaint, is not true and correct and learned trial Judge has solely relied upon the evidence of the complainant. Therefore, conviction and sentence imposed upon the complainant is without properly appreciating the evidence and therefore, the accused are required to be acquitted for the charges levelled against them. He also submitted that the Investigating Officer did not interrogate the officers of Supply Department and even they have not been cited as prosecution witness. He also submitted that there was some day in filing FIR and there was a definite motive to make deliberations and consultations to include the names of the assailants in the case. He also submitted that there were much improvements made by the prosecution witnesses i.e. the complainant and his wife, his brother and Dr. Khan and police witnesses. It is also submitted that even the complaint was filed after some delay with definite motive to make deliberations and consultations to include the names of the accused in the alleged offence. He also submitted that in the FIR, there was no mention about the ax or iron pipe as weapons used in the commission of the offence and the names of the accused were not disclosed, while giving history before Dr. Khan, by the complainant. He also submitted that the so far as injuries are concerned, there are several contradictions between the versions of the complainant and his wife as well as medical evidence. He also submitted that the prosecution has not examined the children of the complainant, though they were very well present at the time of incident. He also submitted that the prosecution witness Dr. He also submitted that the prosecution has not examined the children of the complainant, though they were very well present at the time of incident. He also submitted that the prosecution witness Dr. Firoz Khan examined by the prosecution, who is an interested witness. Even the two medical evidence dated 9.7.2004 and 16.7.2004 issued by Dr. Khan are totally contrary to each other. He also submitted that the nature of injuries shown in the certificate issued by Dr. Khan could not have been caused on the skull of the complainant as the same is deposed by the complainant. Whereas in the certificate dated 9.7.2004, Dr. Khan stated that the complainant was suffering from compound fracture on frontal bone with incised would or elbow and in the certificate dated 16.7.2004, it is stated that C.T. Scan report in linear fracture in root of nasal bone on left side. He further submitted that there was a defect in the original charge at Exhibit 14 framed by the learned Judge against the appellants and other accused and same was subsequently altered by stating that same is the clerical and typing error after the arguments of prosecution was over and in the midst of the arguments of the accused side. He also submitted that the injury to the complainant on his forehead was not made as such by the appellant No. 1 with such intention or knowledge and under such circumstances, that if the accused by that act caused death of the complainant, then he would be guilty of murder resulting into conviction of the appellant No. 1 for the offence under Section 307 of the Indian Penal Code. It is also submitted that in the medical certificate dated 16.7.2004 issued by Dr. Firoz Khan, it is stated that on examination, the patient was found in fully conscious and follows verbal command Glasgow coma scale 15 pupils, bilateral equal and reacting to light pulse 90/m B.P. 90/60 and the complainant was able to walk and ride on motorcycle and even walk down on the stairs. There was no documentary evidence of injuries of fracture on the forehead of the complainant as no X-ray or C.T. Scan were produced and opinion of Radiologist was produced in the proceedings to establish that the injuries on the forehead of the complainant were grievous in nature as defined under Section 320 of the Indian Penal Code. There was no documentary evidence of injuries of fracture on the forehead of the complainant as no X-ray or C.T. Scan were produced and opinion of Radiologist was produced in the proceedings to establish that the injuries on the forehead of the complainant were grievous in nature as defined under Section 320 of the Indian Penal Code. He also submitted that the appellants was required to be given benefit of probation. Learned advocate Mr. Bukhari submitted that the appellant has read the charge and contended that as per the definition of injury under Sections 44 and 39 of the Indian Penal Code, the injury which is disclosed in the medical evidence through Doctor, those injuries are required to be considered as per the charge framed against the appellants. As per the charge, the present appellant gave blow by ax on the head of the complainant and iron blow was given by the appellant No. 2 on the wrist of the right hand of the complainant. In view of the aforesaid submissions, learned advocate has prayed to allow the present Criminal Appeal by quashing and setting aside the impugned judgment and order of conviction and sentence imposed by the trial Court. 9. Learned APP Mr. N.J. Shah for the State supported the impugned judgment and order of conviction and sentence passed by the trial Court. He read the oral evidence of the witnesses and submitted that the prosecution has established the case against the accused beyond reasonable doubt. He has drawn the attention to the injuries caused to the complainant, which are as under: "(1) Alleged history of assault by a mob of people from his neighbourhood at about 9:45 p.m. on 2.9.2004 by some sharp objects probably talvar/knife. (2) Patient fully conscious and follows verbal commend. Glasgow coma Scale - 15 Pupil - Bilateral equal and Reaching to eight pulse - 96/m B.P. 90/60 mmhg. (3) About 15 x 3 c.m. Incised would present on the frontal region running across the forehead, skin, sub-cut areas. (4) Muscles and prove cut. Linear Fracture, Bone (Skull), present with depression. Active Bleeding from the would present. (5) Approximately 2 x 1 c.m. Incised would over left elbow Skin-sub-cut areas tissue cut, bone, exposed. No active bleeding." 10. (3) About 15 x 3 c.m. Incised would present on the frontal region running across the forehead, skin, sub-cut areas. (4) Muscles and prove cut. Linear Fracture, Bone (Skull), present with depression. Active Bleeding from the would present. (5) Approximately 2 x 1 c.m. Incised would over left elbow Skin-sub-cut areas tissue cut, bone, exposed. No active bleeding." 10. Learned APP further submitted that injured was brought to the hospital on 30.6.2004 at 1:45 p.m. and he was discharged from the hospital on 16.7.2004 i.e. after 15 days. He further submitted that from medical certificate at Exhibit 24, it appears that there was compound fractures skull frontal bone with incised wound over left elbow. He further submitted that as per the injury found from the body of the complainant and looking to the weapons used in the commission of the offence, it prima facie appears that there was some force in the blow given by the accused. He read the cross-examination of P.W.1 i.e. Doctor and in which it is admitted by him that serious injuries were caused to the injured. He also read the evidence of wife of the complainant, who is P.W. 6 Exhibit 35 and stated that this witness has supported the versions about the injuries caused to the complainant and same is proved beyond reasonable doubt. This witness fairly admitted before the trial Court that she did not see the incident and it also appears that the appellant No. 1 with ax and appellant No. 2 with knife made assault upon the injured and blows were given on the vital part of the complainant. He also submitted that the Doctor has disclosed that the skull is vital part of the body and skull is vital part of the body, therefore, the injuries are very serious. He further submitted that defence has not made any specific defence to establish that the scuffle took place between the injured and accused and due to blow of iron pipe only, the injured sustained injuries. He also submitted that from the evidence of the complainant and his wife, it is very well established that the accused committed alleged offence. He further submitted that defence has not made any specific defence to establish that the scuffle took place between the injured and accused and due to blow of iron pipe only, the injured sustained injuries. He also submitted that from the evidence of the complainant and his wife, it is very well established that the accused committed alleged offence. He therefore, submitted that as the accused committed alleged offence and same is proved by the prosecution by cogent evidence, the appeal is required to be dismissed by confirming the impugned judgment and order of conviction and sentence imposed by the trial Court. 11. Perused the records of the case and considered the submissions made by the learned advocates for the respective parties. As per the complaint, on 29.6.2004 at about 21:45 Hrs., the accused person entered into the house of the complainant and made assault with deadly weapons upon the complainant, by keeping grudge that the complainant has given information and therefore, the Supply Department raided at the place of accused as the accused the accused were having cell gas Company agency. It appears that the complaint is very well supported by the wife of the complainant, brother of the complainant and it appears that the accused made assault on the vital part of the complainant. From the other evidence of the complainant, it appears that accused made assault with deadly weapons upon the complainant and at that time, his wife and children were present and same has been admitted by him in his cross-examination. As per the evidence of P.W.7, the versions as stated by the complainant and his wife is very reflected. From the documentary evidence like complaint, panchnama and other relating medical papers, it appears that the accused committed such offence. Even the weapons which were used in the commission of the offence, were stated in the documentary evidence and such weapons were used by the accused while committing the alleged offence. This Court also perused the evidence of P.W. 1 Dr. Firoz Khan, who examined the injured and he has admitted in his cross-examination that the medical certificate at Exhibit 23 issued by him and in the said certificate, the injuries caused to the injured were stated in brief. This witness also supported the injuries caused to the complainant. As per the submission of learned advocate Mr. Firoz Khan, who examined the injured and he has admitted in his cross-examination that the medical certificate at Exhibit 23 issued by him and in the said certificate, the injuries caused to the injured were stated in brief. This witness also supported the injuries caused to the complainant. As per the submission of learned advocate Mr. Bukhari, from the panchnama -recovery of weapons, in which the size of as is stated 2" and bled of ax is curved and therefore, the injuries as stated, are not possible by the said weapon. He also submitted that looking to the position of the accused and the complainant, while the incident took place, the injuries found on skull of the complainant, is not possible. In this regard, there is no opinion of the expert for the possibility of the injuries on the skull of the injured person and said defence was not taken before the trial Court. The contentions of size of bled is also acceptable. Even the X-ray was not collected by the Investigating Agency during the course of investigation. It also appears that the accused made assault with an intention to kill the injured and therefore, the ingredients of Section 307 of the Indian Penal Code can be said to be proved by the prosecution. Looking to the overall evidence and circumstances, the offence under Section 324 of the Indian Penal Code can be said to be proved. Therefore, this Court is of the opinion that the learned Sessions Judge has rightly convicted and sentenced the appellants and therefore, no interference is required to be called for by this Court. 12. In the result, the appeal is dismissed. The impugned Judgment and order dated 7.2.2012 rendered by the learned 7th (Ad-hoc) Additional Sessions Judge, Surat, in Sessions Case No.151 of 2007, convicting and sentencing the appellants is hereby confirmed. The appellants are directed to surrender before the Jail Authority with a period of four weeks from today. Bail Bonds stands cancelled. Record and Proceedings be sent back to the trial Court concerned forthwith.