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2018 DIGILAW 949 (GUJ)

Gidhaji Becharji Thakore v. State of Gujarat

2018-08-03

A.Y.KOGJE

body2018
JUDGMENT & ORDER : A.Y. Kogje, J. This appeal is preferred against judgment and order dated 29.08.1995 in Criminal Case No. 19 of 1993. Under the impugned judgment and order appellants were convicted for offences under Sections 147, 148, 149 and 323 of the Indian Penal Code and Section 135 of the Bombay Police Act. Under the same judgment and order the appellants were acquitted of Offences under Sections 324 and 504 of the Indian Penal Code upon recording of convictions the appellants, were ordered to undergo rigorous imprisonment for period of three months and fine of Rs. 100 each. 2. This Court on several previous adjournments has recorded consistent absence of learned advocate of the appellants. Lastly on 13.07.2018, the Court has granted adjournment as a last opportunity. Today again, learned advocate for the appellants has filed a leave note and hence, now the Court has no option but to proceed with the appeal in absence of the learned advocate for the appellants and with the assistance of learned APP. 3. The facts in brief are as under: 3.1. For an incident, which took place at around 08.00 P.M. on 29.08.1995, an FIR. being CR. No.I-132 of 1995, came to be registered against five accused persons alleging that the complainant, who was present at his place all of a sudden, the accused persons formed illegal assembly and assaulted the complainant and other witnesses with the use of sticks and stones, thereby causing injuries to the informants and other witnesses. Pursuant to the incident, an FIR for offences under Sections 147, 148, 149 and 323 of the Indian Penal Code and Section 135 of the Bombay Police Act came to be registered. 3.2. Pursuant to the registration of the FIR, the investigation was conducted and upon due investigation, charge sheet came to be filed for offences under Sections 147, 148, 149 and 323 of the Indian Penal Code and Section 135 of the Bombay Police Act. 3.3. After the compliance with the provisions more particularly with Section 209 of the CR.P.C., the case came to be committed. 3.3. After the compliance with the provisions more particularly with Section 209 of the CR.P.C., the case came to be committed. During the course of the trial, the prosecution examined 11 witnesses and exhibited 11 documents, considering which the Sessions Court concluded that the prosecution has been able to establish offence under Sections 147, 148, 149 and 323 of the Indian Penal Code and Section 135 of the Bombay Police Act beyond reasonable doubt, thereby recording convictions. 3.4. The present appeal is based on the grounds that the prosecution has not been able to establish the offence beyond reasonable doubt. It is pleaded that the injuries are not proved on the basis of the medical evidence and the Sessions Court has not properly appreciated the medical evidence on record. It is also pleaded that the witnesses were inconsistent in their deposition and that the injuries mentioned by the witnesses do not match with the weapons alleged to be used in the offence. 4. Learned APP on the other hand submitted that the prosecution has produced sufficient evidence to prove the offence beyond reasonable doubt. He has drawn attention of this Court to the evidence of the Doctor and the medical case papers and submitted that the injuries received by the complainant as well as the witnesses are proved by examining the treating Doctor and medical case papers. He has also drawn attention of this Court to the evidence of the injured witnesses and submitted that the injured witness have also attributed categoric role and weapons to the accused persons and hence justified the conviction recorded by the Sessions Court. 5. The Court has considered the pleadings and submissions made by the learned APP and perused the documents on record. 6. The charge came to be framed against 4 of the 5 accused vide exhibit 5, as qua one of the accused, the trial has abated on account of his death. The plea came to be recorded, where the accused pleaded not guilty and claimed to be tried. 7. The Court has taken into consideration the evidence of PW-1 Bhulaji Babaji Thakor at exhibit 34, wherein, in the evidence in chief examination, this witness has deposed against all the 5 accused. It is deposed that frequently, the accused persons used to gather and come to the residence of the complainant and used to abuse the wife of the complainant. The Court has taken into consideration the evidence of PW-1 Bhulaji Babaji Thakor at exhibit 34, wherein, in the evidence in chief examination, this witness has deposed against all the 5 accused. It is deposed that frequently, the accused persons used to gather and come to the residence of the complainant and used to abuse the wife of the complainant. On the date of incident, at around 07.00 p.m., the accused appellants armed with the sticks, came to the house of the complainant and used abusive language against family members, as a result of which when the complainant reprimanded them for their behavior, all of a sudden, the accused person started assaulting the complainant and his family members. This version of the complainant was supported by PW-5, exhibit-40, Sangitaben Bhulaji Thakor who also received stone injuries at the time of incident. In her deposition, she has supported version against the appellants accused. 8. The prosecution has thereafter examined Dr. Manisha Dhimar, PW-1, exhibit-25, wherein, in her deposition, it is stated that she had examined injured Balaji Ranchodji Thakor and during her examination, the witness had conveyed the history of the incident naming the appellants accused. This witness thereafter gave details of injuries received by the witness and the medical certificate is exhibited vide exhibit 23. This witness was cross-examined. However, nothing has come on record to suggest that the injuries were not received by the witness during the course of the offence. 9. The Court has thereafter perused the impugned judgment and order. The Court finds that considering that the Sessions Court has taken into consideration the evidences of the injured eyewitnesses as well as medical case papers of the evidence of the Doctor, considering the nature of injuries received so recorded in the medical case certificate, the Sessions Court has rightly convicted the appellants accused for offences under Sections 147, 148, 149 and 323 of Indian Penal Code and Section 135 of the Bombay Police Act and acquitted the accused for offences under Sections 324 & 504 of Indian Penal Code. 10. Having gone through the oral as well as documentary evidence on record of this case, this Court is in agreement with the view taken by Sessions Court. 10. Having gone through the oral as well as documentary evidence on record of this case, this Court is in agreement with the view taken by Sessions Court. Nothing has appeared on record to conclude that the approach of the Sessions Court is vitiated by any illegality or that the decision is perverse or that the Sessions Court has ignored any material evidence while recording the conviction. The findings arrived at by the Sessions Court and the reasonings recorded for conviction are justified in view of the evidence on record and hence, no case is made out to entertain this appeal. 11. In view of the aforesaid, no interference is called for the appeal therefore, is hereby dismissed. Bail Bonds stand cancelled. R & P transmitted back to the Trial Court.