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2017 DIGILAW 460 (GUJ)

Jayesh v. State of Gujarat

2017-02-27

AKIL ABDUL HAMID KURESHI, BIREN VAISHNAV

body2017
JUDGMENT : Biren Vaishnav, J. 1. Accused Nos. 1 and 2 who have been convicted for offences punishable under sections 326 and 324 respectively have challenged their conviction handed out by the learned Additional Sessions Judge, Amreli by his judgment and order dated 07.10.2010 in Sessions Case No. 35 of 2006. 2. The complainant, Devshibhai Virabhai Barot, filed a complaint while in the Amreli Civil Hospital that on 18.03.2005 accused Nos. 1 and 2 along with three other accused attacked him and his son Chiman Devshibhai. It is the case of the complainant in his complaint so lodged that while he and his son Chiman were returning from the town on their motor cycle, at around 11.30 at night, near the house of Manu Meghjibhai, accused No. 1 Jayesh alias Teniyo approached them with a sword, accused No. 3 Madhu Bhimjibhai was also carrying a weapon which he could not notice. Accused No. 2 - Popatbhai alias Nanjibhai was carrying a pipe. Keshubhai Arjanbhai - accused No. 4 was also carrying a weapon which he could not notice. According to the version in the complaint, the accused No. 1 Jayesh @ Teniyo abused them and attacked the complainant with a sword on the right elbow. Popatbhai - accused No. 2 also attacked the complainant at the same place. His son Chiman was also attacked by accused No. 1. Laljibhai's nephew attacked his son with a knife as a result of which Chiman fell off the motorcycle. Based on this complaint so lodged, the five accused were charge-sheeted by the learned trial judge for having committed offences under sections 147, 148, 149, 323, 324 read with section 149 and section 326 of the Indian Penal Code. 3. By the judgment rendered by the learned Additional Sessions Judge, original accused No. 3 to 5 have been acquitted. As stated earlier, the appellants are the original accused Nos. 1 and 2. Accused No. 1 - appellant No. 1 herein has been convicted for the offence punishable under section 326 and sentenced to undergo rigorous imprisonment for a period of three years whereas accused No. 2 Popatbhai has been convicted for offence punishable under section 324 and sentenced to undergo rigorous imprisonment for a period of one year. The evidence on record is as under: 4. Devshibhai Virabhai Makwana, the complainant has been examined as PW-1 at Ex. 97. The evidence on record is as under: 4. Devshibhai Virabhai Makwana, the complainant has been examined as PW-1 at Ex. 97. According to the testimony of this witness, the incident occurred on 18.03.2005. According to him, he along with his son Chiman was going home on a motorcycle at around 11.30 at night. When they reached near the house of Manubhai Meghjibhai at Baharpara area, they saw 5 to 6 persons standing there. Of the 5, he saw Teniyo Bhimji - accused No. 1, Popatbhai Bhimji - accused No. 2, Jayeshbhai Mohanbhai - accused No. 5, Keshu Arjanbhai - accused No. 4 and Madhu Bhimjibhai - accused No. 3. He further stated that he saw two other unknown persons whom he could not identify. This witness further stated that when they were passing by on a motorcycle, accused No. 1 - Teniyo stopped their motorcycle and started abusing them. Teniyo Bhimji was carrying a sword and attacked him on the right hand and as a result of this, his thumb got severed. Popat Bhimji who was carrying a pipe also attacked him on both his hands and legs. He attacked him on the left hand and also inflicted a blow on the right hand. He was injured on both his legs and hands. Jayeshbhai Mohan caused an injury on the thigh of his right leg. This witness further states that he does not know Jayeshbhai Mohan but would identify him if presented before him. The accused No. 4 - Keshu Arjan had attacked him on his leg with a sword. He sustained injuries as a result of this below his knee. His son Chiman was accompanying him and he was attacked by Teniyo Bhimji with a sword on his hand. He and his son fell down. The accused carried the motorcycle and burnt it. An unknown person carried both of them on a motorcycle to the Civil hospital at Amreli. PSI Gohil came to the Civil hospital before whom he gave the complaint which is at Ex. 98. Thereafter, a Mamlatdar arrived and recorded his statement. The testimony further states that he identified the statement and his thumb impression. After having received preliminary treatment from Amreli Civil hospital, both he and his son were referred to Rajkot hospital. His son after receiving medical attention returned whereas he was admitted at the Rajkot hospital. 98. Thereafter, a Mamlatdar arrived and recorded his statement. The testimony further states that he identified the statement and his thumb impression. After having received preliminary treatment from Amreli Civil hospital, both he and his son were referred to Rajkot hospital. His son after receiving medical attention returned whereas he was admitted at the Rajkot hospital. He identified all the five accused who were present in the court. The sword and the pipe were also identified by him. 4.1 In his cross-examination, he agreed that he along with his brother Giga Vira and sons of both of them as well as Mukesh Khoda were facing a court case with regard to having murdered Babu Mohan. He further admitted that there were externment orders against him and his brother Giga Vira. In his cross-examination, he further admitted that while they were passing by, his son Chiman was riding motorcycle and he was a pillion rider. He denied the suggestion that at the time of the incident he had an argument with the present accused. He agreed that when they were passing by Teniyo Bhima stopped their motorcycle and at that time Chiman was sitting on the motorcycle. About 15-20 persons had gathered at the scene. He denied the suggestion that further statement was recorded by the police 8 days after the incident. He further denied that in his further statement dated 27.04.2005 which was recorded by the police he had stated that while he and his son were passing by Manu Meghijibhai's house, Teniyo and six others were standing at the place. That he could not identify them as most of these were unknown persons and that he could not name them. He denied the suggestion that when attacked he fell off the motorcycle and became unconscious and that he was carried to Amreli hospital by an unidentified person. He further denied to have stated in his further statement that on 27.04.2005, when Teniyo started abusing him and when the blow of the sword landed on them, he and his son fell off the motorcycle and they were carried to the hospital by an unknown individual. In his cross-examination, he further stated that he did not know as to what weapon Keshubhai and Madhubhai were carrying. He further stated that he was attacked by a sword by Teniyo alias Jayesh and by Keshu Arjan. In his cross-examination, he further stated that he did not know as to what weapon Keshubhai and Madhubhai were carrying. He further stated that he was attacked by a sword by Teniyo alias Jayesh and by Keshu Arjan. According to him, Keshu Arjan had attacked him with a sword on the legs below the knee. He admitted that he had stated in his complaint that he did not know as to what weapon Keshu Arjan was carrying. He further admitted that he had stated in his complaint regarding the injuries that he sustained as a result of being inflicted by a sword at the hands of Keshu Arjan. He admitted that he was unconscious for sometime and he did not realize or was aware of the incident that occurred and was not aware whether the motorcycle was set on fire. He further denied of having known the identity of the person who set the Luna and motorcycle on fire. He further admitted that he is facing criminal case being Sessions Case No. 34 of 2006 and that the allegation in that case is that they who are the accused had gone to the scene of incident on a bullet, motorcycle and other two wheelers and had murdered Ravi. He further admitted that he had stated in his police statement that Jayesh alias Teniyo inflicted blow with a sword and that he had sustained injuries on his thumb and that the thumb was severed from his hand. He denied that when he was taken to the Rajkot hospital, the doctor had informed him that a surgical procedure would be necessary. He further denied that he had stated in the further statement dated 27.04.2005 that he had sustained the injuries on the right thumb as a result of being attacked by a sword. He further denied that when he and his son Chiman were passing by Baharpara near Laxminarayan temple, the brothers were fighting amongst each other and therefore they had stopped to inquire and it was at that time that they were attacked. He denied having stated before the Mamlatdar that he had stopped as the brothers were fighting amongst each other at the scene of incident. He further stated that when his statement was recorded by the Mamlatdar he was not fully conscious. He denied having stated before the Mamlatdar that he had stopped as the brothers were fighting amongst each other at the scene of incident. He further stated that when his statement was recorded by the Mamlatdar he was not fully conscious. He further stated that even when his complaint was recorded, he was not fully conscious and the complaint was so recorded in presence of his son. That he was not in a position to speak coherently and it was his son who was filling the gaps in the complaint and was present when the complaint was being so recorded. He further admitted that when the complaint was recorded he did sustain injuries on his thumb and that his thumb had been severed and was only hanging by the skin. He further admitted that he has been accused of having carried out the murder of Ravi and that Ravi is the nephew of Laljibhai who was not present at the scene of the offence. He further admitted that in his statement dated 27.04.2005, he did not name the two nephews of Laljibhai. He further admitted that in the case that is lodged against them Keshubhai is the complainant. He further admitted that at the place of the incident, the motorcycle was burnt, however, he was informed by his son Chiman that the motor cycle rolled down the slope towards Shobhanaben's house on an open road and it was at that place that the motorcycle was put on fire. This was narrated by his son Chiman at the Amreli Civil hospital. He admits that he with the other accused had been arraigned for the murder of Ravi and it was at that same place that the incident in question happened and Mukesh is one of the co-accused in the offence. He further admitted that neither in his complaint nor in his police statement he had named Jayesh Mohan. He further denied that a pipe blow was inflicted by Popat on his right hand. He further admitted that he had not stated in his complaint that Popat Bhimjibhai had inflicted a blow with a pipe on his leg. He admitted that in his complaint he had stated that Teniyo had attacked him with a sword on his right hand and Popat had attacked him at the same place with a pipe. He further admitted that he had not stated in his complaint that Popat Bhimjibhai had inflicted a blow with a pipe on his leg. He admitted that in his complaint he had stated that Teniyo had attacked him with a sword on his right hand and Popat had attacked him at the same place with a pipe. He further admitted that he had not stated in his complaint that Popat had attacked him on the left hand and inflicted a pipe blow on his legs. He further admitted that he had not so stated about Keshu Arjan having attacked him with a sword below the knee on his legs. 5. According to the complainant's son Chiman, PW-2, on 18.03.2005, when he and his father were going on the motorcycle, near Harijanvas, a crowd had gathered near Manu Meghjibhai's house. Of the five to six persons in the crowd, one of them attacked him with a sword. The attacker attacked his father first who was riding pillion as a result of which his father sustained injuries on the thumb of right hand. He could not identify the individual who carried out such attacks. In his testimony, this witness further states that he also was attacked by someone with a sword as a result of which he sustained injuries on his left hand. He stated that his father was also attacked with a pipe as a result of which his father sustained injuries on the hand. Both of them fell off the motorcycle and were carried to the Amreli hospital by an unknown individual in an autorickshaw. Their motorcycle was put on fire. He stated that the accused in question were not the persons who had attacked him or his father with a sword or pipe. 5.1 In his cross-examination, this witness denied that on the date of the incident he along with Mukesh Khoda and his father was present at the scene of the incident. He admitted that his father had sustained injuries as a result of being attacked by an unknown individual. At that point of time, there were about 15 to 20 people who had come at the scene. He could not identify any one of them. He admitted that his father had sustained injuries as a result of which his thumb got severed. Some unidentified individuals carried both of them in an autorickshaw to the hospital. At that point of time, there were about 15 to 20 people who had come at the scene. He could not identify any one of them. He admitted that his father had sustained injuries as a result of which his thumb got severed. Some unidentified individuals carried both of them in an autorickshaw to the hospital. He admitted that he and his family members were facing trial for the murder of Ravi Mohan and that Keshu Arjan as well as Popat Bhimji had given statements in that case implicating them. When his father was carried to the hospital, he was fully conscious and that when the complaint was recorded he was not present. 6. PW-3, Mukesh Khoda has been examined at Ex. 106. He, however, has turned hostile. In his examination-in-chief, he has stated that on the date of the incident when he reached the scene near Baharpara there was a fight going on between the Harijans and the Barots and when he tried to intervene he was attacked and he sustained injuries as a result of pipe blow on his leg. He came across a knife with which he made some blows and then left the scene. 7. Dr. Arsibhai Vadher, PW-4, Ex. 113 is the doctor who treated both the complainant Devshibhai and his son Chiman. According to the doctor, on 19.03.2005, at around 12.40 at night, the complainant's son Chiman had come for treatment. He had stated that he sustained injuries by a sword in a fight. According to the doctor, injuries that Chiman sustained were as under: "CLW on Lt. Palm near base of first finger 3 cm x 2 cm x up to bone deep." 7.1 Devshibhai, the complainant was also treated by the doctor. He in his history had stated that he had sustained injuries as a result of a fight and was attacked by a sword and a pipe. The injuries sustained by Devshibhai have been indicated in the medical certificate produced at Ex. 119-120 and the same reads as under: "1. Diffuse swelling on Rt. form c CLW on post surface size 2 cm x 1 cm x 1 cm upper 1/3 2. Amputed Rt. Thumb from base. Amputed thumb attacked to slon 3. Swelling on Lt thigh (Diffuse Lower 1/3 CLW on Lt thigh Lht. Surface lower 1/3. 2 cm x 1 cm x up to muscle deep bleeding. 4. Diffuse swelling on Rt. form c CLW on post surface size 2 cm x 1 cm x 1 cm upper 1/3 2. Amputed Rt. Thumb from base. Amputed thumb attacked to slon 3. Swelling on Lt thigh (Diffuse Lower 1/3 CLW on Lt thigh Lht. Surface lower 1/3. 2 cm x 1 cm x up to muscle deep bleeding. 4. Diffuse swelling on mid part of Lt. Leg antero - lateral area extend up to upper 1/3 5. CLW on Lt. Leg near lat. Malleollons 2 cm x 1 cm x 1 cm." 7.2 According to this witness, injury No. 2 which the complainant had sustained was that the thumb had severed and was just hanging by the skin. The doctor identified the sword and the pipe and stated that the injury No. 2 could have been sustained by the sword. 7.3 This witness was cross examined. He stated that the injuries that Chiman Devshi had sustained on the palm and the hand could have been due to the sword. The injury sustained was not at all serious and such injury could have been sustained as a result of a fall from a motorcycle. He further stated that Devshibhai was profusely bleeding, however, it was not so bad so as to render him unconscious. He further in his cross-examination stated that when Devshibhai was examined, his thumb had been severed. He was not certain whether he treated him and sutured the thumb. He further stated that he is not in a position to clearly state that injury No. 1 could be sustained with what weapon and that injuries No. 1 to 5 certainly could not have been caused by a knife. 8. Dr. Harshaben Patel is examined as PW-10 at Ex. 130. She is the Medical Officer at Rajkot where the complainant was subsequently shifted for further treatment. The injuries according to this doctor which the complainant had sustained are as under: "1. I/W at about 1 cm x 0.5 cm on (R) elbow 2. Crushed c CLW at about 5 cm x 4 cm on (R) hand cut vessel. 3. Stitched wound of about 2 cm on internal aspect on (1) thigh 4. Stitched wound of about 1 cm on lt. Ankle." 8.1 She stated in her examination-in-chief that on 21.03.2005, the complainant had undergone surgery and the thumb had to be amputated. Crushed c CLW at about 5 cm x 4 cm on (R) hand cut vessel. 3. Stitched wound of about 2 cm on internal aspect on (1) thigh 4. Stitched wound of about 1 cm on lt. Ankle." 8.1 She stated in her examination-in-chief that on 21.03.2005, the complainant had undergone surgery and the thumb had to be amputated. In her cross-examination, she agreed that the injury on the thumb could not be said to be an injury on vital organ of the body. 9. Ex. 136 is the statement of the complainant which is recorded by the Executive Magistrate, Amreli. The reading of the statement so recorded by the Executive Magistrate indicates that the complainant had narrated to the Executive Magistrate that Teniyo, Popat and his brother and nephew had assaulted him and his son when they were passing by Laxminarayan temple. The statement further records that this happened when they had stopped to see his brothers fighting and they had stopped and made inquiries and it was at this instance that both he and his son were attacked by sword and pipes. He further stated that an unidentified person on his Rajdoot motorcycle had carried them to the hospital. 10. The Investigating Officer has been examined as PW-11, Ex. 137. In his cross-examination, it is revealed that earlier the offence was registered under section 324 of IPC, however, subsequently section 326 of IPC was added looking to the nature of injuries sustained by the complainant. He stated that Chiman in his further statement dated 22.03.2005 stated that they had sustained injuries as a result of a scuffle and it was his brother Jago who taken them to Civil hospital. He had further stated in his further statement that when they had come to the Harijanvas, a fight was going on between him and Babu Mohan. He states that they had sustained injuries as a result of the scuffle with the Harijans. The Investigating Officer further admitted that in the statements recorded on 22.03.2005 and 23.03.2005, Chiman had not revealed names of any of the accused. It has further come out from the cross-examination of the Investigating Officer that the complainant in his further statement on 27.03.2005 had stated before the police that when his motorcycle was stopped and the complainant was attacked by accused No. 1, the complainant had sustained injuries on his thumb. 11. It has further come out from the cross-examination of the Investigating Officer that the complainant in his further statement on 27.03.2005 had stated before the police that when his motorcycle was stopped and the complainant was attacked by accused No. 1, the complainant had sustained injuries on his thumb. 11. Based on this nature of evidence, the learned trial judge vide his judgment under challenge convicted the accused No. 1 - Teniya alias Jayesh for offence punishable under section 326 of the Indian Penal Code and sentenced him to three years of rigorous imprisonment. Primarily, the reasons recorded by the learned judge was that the evidence on record indicated that it was at the hands of the accused No. 1 that the complainant sustained injuries which were grievous in nature and therefore it was a case for offence having made out under section 326 of the Indian Penal Code. Accused No. 2 was sentenced to rigorous imprisonment for a year under section 324 of the Indian Penal Code because according to the learned judge, the complainant and his son were attacked by pipes at the hands of accused No. 2. These findings have to be independently tested by appreciating the evidence on record. 12. On reading the First Information Report dated 19.03.2005, which was recorded obviously first in point of time, it is the case of the complainant that when he along with his son was travelling back from town on a motorcycle, Teniyo - accused No. 1 who was carrying a sword stopped him. In his complaint, he has narrated that he is not in a position to state as to whether Keshubhai or Madhubhai were carrying weapons. The complainant stated that it was Popatbhai who was carrying a pipe. According to the version as narrated in the complaint, accused No. 1 attacked him on the right hand elbow and so did accused No. 2 with a pipe. When one compares this narration that has been made out by the complainant, with his testimony which is at Ex. 97, the witness brings out an improvement inasmuch as he, for the first time, states that he was attacked with a sword as a result of which he sustained injuries on the thumb and that as a result of the attack by a sword, his thumb got severed. 97, the witness brings out an improvement inasmuch as he, for the first time, states that he was attacked with a sword as a result of which he sustained injuries on the thumb and that as a result of the attack by a sword, his thumb got severed. Similarly vis-a-vis the role of accused No. 2, an exaggerated version is borne out from reading the testimony of this witness inasmuch as rather than the version as narrated in the complaint that accused No. 2 attacked him on the right hand with pipe, the testimony reveals that he suffered injuries on his left hand and on his right hand on being attacked by the accused who inflicted two blows on his left hand and on his right hand with a pipe. 12.1 In his cross-examination, this witness further brings out a contradiction inasmuch as in his testimony he states once that he fails to identify the role of each accused, as to who inflicted the blow with the sword, the role as far as having been attacked by sword is attributed by him to Teniyo alias Jayesh Bhimji and also to one Keshu Arjan. It was only in his further statement recorded on 27.03.2005, as is evident from his admission in the cross-examination, that he for the first time reveals that he had sustained injuries and the result of this was severance of his thumb from his hand. Apparently, therefore, when one reads the complaint, in juxtaposition with the testimony of this witness, the nature of injuries that he sustained as a result of being attacked at the hands of the accused Nos. 1 and 2 are at a variance. It is difficult to believe that after the complainant had sustained serious injuries as a result of which his thumb had been severed, why such a statement was not made at the first point of time in the First Information Report that was recorded at the Amreli Civil hospital. 13. The prosecution has tried to support the version of the complainant by examining his son Chiman as PW-2 at Ex. 102. Except being so declared hostile, it is apparent on reading the testimony that he had not at all supported the case of the prosecution. He feigns ignorance as to the role of the accused in attacking him and his father. 102. Except being so declared hostile, it is apparent on reading the testimony that he had not at all supported the case of the prosecution. He feigns ignorance as to the role of the accused in attacking him and his father. In his examination-in-chief, the only version that comes out is that, according to him, a group of 5 to 6 people stopped and accosted them and he was not in a position to identify as to which accused carried out the attack with what weapon in hand. PW-3 - Mukesh Khoda, according to the prosecution theory, was an eye witness and has turned hostile and has not supported the case of the prosecution and therefore the testimony of such witness cannot be relied upon. 14. On reading the testimony of the complainant, together with that of PW-2 and that of the statements made by the complainant before the Magistrate at Ex. 136, the chances of the incident, itself as narrated by the complainant raises serious doubt. In the First Information Report, the story as narrated by the complainant is that while he was proceeding near Manu Meghjibhai's house he was stopped by Teniyo alias Jayesh - accused No. 1 and was accosted and attacked with a sword. In the statement before the Executive Magistrate which is at Ex. 136, an entirely different version is stated by the complainant - PW-1. He states that he stopped by when he saw a fight that had ensued between the accused and his brothers and when he stopped to inquire the reasons for such a fight, he was attacked by the accused in question. From the cross-examination of the witness, it has come on record that he along with his brothers were standing trial for a cross case namely Sessions Case No. 34 of 2006. Even Chiman in his cross-examination stated that they had stopped there as a result of the fact that a fight between Harijans and the Barots was going on. From the cross-examination of the witness, it has come on record that he along with his brothers were standing trial for a cross case namely Sessions Case No. 34 of 2006. Even Chiman in his cross-examination stated that they had stopped there as a result of the fact that a fight between Harijans and the Barots was going on. Evidently, therefore the story as it appears is that the First Information Report is at a variance with the statement that has been recorded before the Executive Magistrate and on the basis of the evidence which has come on record from the testimonies, PW-1 - the complainant apparently is the sole witness to the incident, particularly, when the testimonies of PW-2 and PW-3 - Chiman and Mukesh respectively cannot be believed and particularly when except for being declared as hostile, the testimony of Chiman does not support the prosecution and apparently Mukesh has been declared hostile. 15. The contradictions are writ large in the testimony of the complainant as compared to that of his son PW-2 inasmuch as the complainant has sought to make out a case where he stated that when he sustained the injuries in question he was not fully conscious and therefore when his complaint was being recorded he was not coherent in his speech and therefore the gaps were filled in by his son who was present at the time when the complaint was being recorded. When one reads the testimony of Chiman, it is evident that he categorically denies the presence at the time when his complaint was recorded. 16. The cross-examination of the complainant has sought to improve his version by showing at one stage by stating that he was not aware that the motorcycle was burnt, however, in his cross-examination he further indicates that he was informed by his son that the motor cycle was rolled down the slope on an open road and was subsequently burnt. Obviously, therefore, an improvement is sought to be made from the version as narrated in the complaint and the statement as recorded by the Executive Magistrate. 17. Obviously, therefore, an improvement is sought to be made from the version as narrated in the complaint and the statement as recorded by the Executive Magistrate. 17. Evidently, therefore, though the medical evidence would indicate that the complainant and Chiman suffered as a result of the attack, grievous in nature, from the narration as made out in the complaint, when read together with the testimonies of PW-1 - the complainant and that of PW-2 - Chiman neither of them have been able to bring on record as to what role each of the accused played and whether the injuries that they sustained were as a direct result of having been attacked by swords at the hands of accused No. 1 or with a pipe at the hands of accused No. 2. Improvements and exaggerations in the testimonies therefore make this complainants/witness theory seriously doubtful and do not therefore make us come to a confirmed conclusion that the injuries that the complainant and his son Chiman sustained were as a direct result of the attack by the weapons in question by the accused Nos. 1 and 2 on whose behest the present appeal has been filed. 18. Therefore, when no clear role is attributed to the accused Nos. 1 and 2 for having carried out the act in question, we are on the basis of a hunch, of the opinion that the conviction of the accused for the offences in question namely that under section 326 as far as accused No. 1 is concerned and section 324 as far as accused No. 2 is concerned, at the hands of the learned trial judge cannot be sustained. 19. In the result, appeal is allowed. The conviction of original accused Nos. 1 and 2 - appellants herein awarded by the learned Additional Sessions Judge, Amreli in Sessions Case No. 35 of 2006 vide judgment and order dated 07.10.2010 is quashed and set aside. Bail bonds, if any, shall stand cancelled. R & P to be returned to the trial court forthwith. Appeal Allowed.