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Gujarat High Court · body

2019 DIGILAW 30 (GUJ)

Ismailbhai Ibrahimbhai Momin v. State of Gujarat

2019-01-17

R.P.DHOLARIA

body2019
JUDGMENT : 1. The present appeal has been filed by the appellants under Section 374 of the Criminal Procedure Code, against the judgment and order dated 29.01.2004 passed by learned Additional Sessions Judge, Fast Track Court No.3, Patan in Sessions Case No.129 of 2002 (Old Sessions Case No.129 of 1997), whereby the appellants-accused were convicted for the offence punishable under Section 326 read with Section 114 of the Indian Penal Code (herein after referred to as IPC for short). By the impugned judgment, the appellant nos. 1 to 3 were sentenced to undergo simple imprisonment for a period of three years and ordered to pay Rs.500/- fine each and in default of payment of fine, simple imprisonment for a period of three months each was imposed and under Section 135 of the Bombay Police Act, the appellant no.1 was sentenced to undergo simple imprisonment for a period of one month. 2. The case of the prosecution in short is that the complainant - Mr. Rashid Sharif Memon was residing at Mumbai and was holding land at Village: Samoda, Taluka: Siddhpur. His land was looked after by one Mr. Abdulbhai Ibrahim Memon (accused no.2). On 20.08.1995 at 8:30 a.m., when the complainant approached said Abdulbhai and asked him to return his money which was landed to him, at that time, due to ruckus and commotion, one Ismailbhai Ibrahimbhai Memon (accused no.1) attacked the son of complainant - Arif Rashid Memon with dhariya and inflicted a blow with dhariya on his head and other accused gave fist blows to the complainant and to the son of the complainant and thereby committed offences punishable under Sections 307, 324, 323, 504, 506(2) and 114 of the IPC and Section 135 of G.P. Act. Accordingly, a complaint for the aforesaid offences was filed before the Siddhpur Police Station. 2.1 Investigation was carried out and charge sheet came to be filed against the accused in the Court of learned Magistrate. As the case was sessions triable the same was committed to the Court of Sessions. Thereafter, charge came to be framed and explained to the accused, to which the accused pleaded not guilty and claimed to be tried. 2.2 Thereafter, after filing of closing purshis by the prosecution, further statements of accused persons under Section 313 of the Code of Criminal Procedure, 1973 were recorded. Thereafter, charge came to be framed and explained to the accused, to which the accused pleaded not guilty and claimed to be tried. 2.2 Thereafter, after filing of closing purshis by the prosecution, further statements of accused persons under Section 313 of the Code of Criminal Procedure, 1973 were recorded. The accused have denied the case of the prosecution and submitted that a false case is filed against them. 2.3 At the conclusion of trial and after appreciating the oral as well as documentary evidence, the learned Judge vide impugned judgment, convicted the appellants-accused. Being aggrieved by and dissatisfied with the said judgment and order of conviction dated 29.01.2004 passed by learned Additional Sessions Judge, Fast Track Court No.3, Patan in Sessions Case No.129 of 2002 (Old Sessions Case No.129 of 1997), the appellants-accused have preferred the present appeal before this Court. 3. Learned Senior Advocate Mr. Yogesh Lakhani assisted by learned advocate Ms. Rinny P. Kantaria has taken this Court through entire records and proceedings and argued that learned trial court, while appreciating the medical evidence, wrongly, upon the premises of presumptions and conjunctures recorded the finding that the injury was a grievous injury and resultantly wrongly convicted the accused under Section 326 of the IPC though according to the Medical Expert opinion, the injury, was simple in nature which was clearly and categorically deposed by both the doctors in their depositions and even the same is also reflecting from the medical case papers as well as contemporaneous record. 4. Mr.Yogesh Lakhani, learned Senior Advocate further submitted that the complainant-victim as well as present appellants are belonging to same caste and community and majority of the the appellants have reached the age above 60 years and they have settled the matter outside the court and are sufficiently compensated and in view thereof, this Court while maintaining the conviction may reduce the sentence to the extent of sentence already undergone. The offence may be brought to at the most punishable under Section 323 of the IPC, if the evidence of other witnesses may be believed to be true and they may be punished and sentenced to the extent they have already undergone the sentence. 5. On the other hand, learned APP Ms. The offence may be brought to at the most punishable under Section 323 of the IPC, if the evidence of other witnesses may be believed to be true and they may be punished and sentenced to the extent they have already undergone the sentence. 5. On the other hand, learned APP Ms. Chetna Shah has taken this Court through the evidence and materials available on record and stated that learned trial court has recorded elaborate reasons and rightly convicted the appellants-accused. She has submitted that the judgment of the learned trial Judge is not such which calls for interference and on the facts of the case, the conviction of the accused should not be interfered with. Learned advocate Mr. Jit Rajyaguru appears on behalf of injured victim - Mr. Adil Rashid Sharif Momin, who is very much present before the Court and states that his Vakalatnama be accepted and also tendered affidavit which is ordered to be taken on record stating that the victim has already settled the matter outside the court with the present appellants-accused. The Vakalatnama of learned advocate Mr. Jit Rajyaguru is ordered to be taken on record. 6. This Court is minutely taken through the entire records and proceedings and on going through the entire factual scenario, the question arises for determination of this Court is as to whether the offence is made out punishable under Section 326 or under Section 323 of the IPC as argued by learned Senior Advocate Mr. Lakhani. In order to base the decision as to whether the injury which was found over the body of Adil is a grievous hurt or a simple injury, on that point, the evidence of PW.13 - Dr. Somabhai Patel clearly indicates that he examined the victim Adil and there was one injury measuring one and half centimeter, deep over the head which was simple in nature and that fact he admitted even in the cross-examination that the injury was simple in nature and he had also noted the same in the medical case papers as well as certificate issued by him. The another opinion is available on record given by PW.6 - Dr. Kantibhai Patel wherein also in the cross-examination, he admitted that the injury which he certified in the certificate at Exh.30 was found to be simple in nature over the body of victim Adil. The another opinion is available on record given by PW.6 - Dr. Kantibhai Patel wherein also in the cross-examination, he admitted that the injury which he certified in the certificate at Exh.30 was found to be simple in nature over the body of victim Adil. The medical case papers also clearly indicates that he came to be admitted on 20.08.1995 and he was discharged on 05.09.1995 after about 15 days and admittedly there was no fracture and no grievous hurt. Admittedly, it was not falling in the definition as provided under Section 320 of the IPC. 7. In view of aforesaid nature of evidence, this Court is of the considered opinion that the offence falls punishable under Section 323 of the IPC since the offence occurred on 20.08.1995 for about 24 years back and majority of accused are senior citizens and as pointed out by the victim who also remained present before the Court that they all are residing very happily as they are belonging to the same caste and community and they have compromised and there appears no dispute. In that view of the matter, this Court deems it appropriate to impose the sentence upon the appellants as undergone during trial by them. 8. For the reasons recorded above, the Criminal Appeal is partly allowed. The conviction recorded by learned trial court is modified and altered from the offence punishable under Section 326 read with Section 114 of IPC to Section 323 read with Section 114 of the IPC and the sentence is imposed to the extent of sentence already undergone by the appellants. Therefore, the accused would not require to surrender for serving out any sentence now. The case stands closed. As the accused are on bail, they need not to surrender. The bail and bail bond stands cancelled. Surety, if any, shall stands discharged. Record and Proceedings be sent back to the trial Court concerned forthwith. 9. In view of aforesaid judgment, the Suo Motu proceedings being Criminal Misc. Application No.1 of 2004 for enhancement of sentence stands dismissed. Notice is discharged.