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Gujarat High Court · body

2019 DIGILAW 627 (GUJ)

Ratanji Manaji Thakor v. State Of Gujarat

2019-07-01

A.G.URAIZEE

body2019
JUDGMENT : A.G.URAIZEE, J. 1. In this appeal under Section 374 of Criminal Procedure Code (hereinafter referred to as “Code”), the appellant has assailed the judgment and order passed by the learned Additional Sessions Judge, Mahesana, in Sessions Case No.127 of 1997 dated 07.06.2002, whereby and whereunder, he came to be convicted for the offences punishable under Sections 307 and 323 of Indian Penal Code (for short “IP Code”) and sentenced as under: Nature of offence Sentence 307 4 years rigorous imprisonment and fine of Rs.1000/-, in default, to further undergo 1 month simple Imprisonment. 323 to pay fine of Rs.500/-, in default, to undergo 15 simple imprisonment. 2. Case of the prosecution against the appellant as could be culled out from the memo of appeal is that: 2.1 The complainant lodged complaint on 20.09.1996 before Santhal Police Station alleging that on 19.09.1996 about 8:30 p.m., near his house, the accused persons including present appellant came with knife, dhariya, barchhi and stick by forming unlawful assembly. It is further alleged that the accused stated that why you have done quarrel before 12 months and why you have done compromise and thereby they started to speak abuses. The complainant has stated that he had made request not to abuse, yet the accused have continued to abuse to him. The accused got existed and the appellant had given blow chhari (knife) to him on the right side of abdomen. At the time of incident, all the accused were having deadly weapons. The accused No.2 had given blow of barchhi on his left hand and therefore, the complainant shouted and his brother Nagraji Badarji and Bharaji Badrji came on the spot of incident and at that time, the accused No.4 had given stick blow on the back of said Nagraji. Therefore, the complainant sustained serious injuries and he was shifted to the hospital, where he had given complaint Therefore, the complaint was filed by the complainant being CR No.122 of 1996 for the offence under Sections 147, 148, 149, 307, 504 of Indian Penal Code and Section 135 of the Bombay Police Act. Therefore, the complainant sustained serious injuries and he was shifted to the hospital, where he had given complaint Therefore, the complaint was filed by the complainant being CR No.122 of 1996 for the offence under Sections 147, 148, 149, 307, 504 of Indian Penal Code and Section 135 of the Bombay Police Act. 2.2 Thereafter, necessary formalities were completed and the appellant was arrested and upon conclusion of investigation, the charge-sheet was filed against him and as the offences were exclusively triable by the Court of Sessions, the learned Magistrate committed the case under Section 209 of the Code to the Court of Sessions, where the case came to be registered as Sessions Case No. 127 of 1997. 2.3 The Sessions Court framed charges against the accused vide Exhibit-4. The same was read over and explained to the accused - appellant, who pleaded not guilty and claimed to be tried. The prosecution, therefore, adduced following documentary and ocular evidence to prove the guilt of the accused. Oral Evidence: Sr.No. Name of the Witnesses Exhibit 1. P.W.1 Dr. Kantilal Ishwardas Patel 13 2. P.W. 2 Vinuji Badarji 21 3. P.W. 3 Nagraji Badarji Thakor 23 4. P.W. 4 Bharatji Badarji 24 5. P.W. 5 Badaji Chanduji 25 6. P.W.6 Baldevji Okhaji 30 7. P.W.7 Premraj Naranji 31 Documentary Evidence: Sr.No. Documents Exhibit 1. Complaint 22 2. Panchnama - Scene of offence 28 3. Injury Certificate of Vinuji Badarji 16 4. Injury Certificate of Nagarji Badrji 19 5. Depute order 32 6. X-rays reports 14 & 15 7. Radiologist Report 17 & 18 8. Panchnama - Seizure of weapon 26 & 27 2.4 Upon conclusion of the trial, the statement under Section 313 of the Code of the accused-appellant came to be recorded. The trial Court, after considering the evidence on record and arguments of learned APP and learned advocate for the accused, convicted the appellant accused of the charges by the impugned judgment and order. 3. Heard Ms. Dilbar Contractor, learned advocate for Ms. Kavita B. Gajjar, learned advocate for the appellant and learned APP Mr. K.L. Pandya appearing for the respondent - State. I have perused the record of Sessions Case No.127 of 1997. 4. Ms. 3. Heard Ms. Dilbar Contractor, learned advocate for Ms. Kavita B. Gajjar, learned advocate for the appellant and learned APP Mr. K.L. Pandya appearing for the respondent - State. I have perused the record of Sessions Case No.127 of 1997. 4. Ms. Contractor, learned advocate for the appellant submitted that the appellant was attacked and assaulted by the complainant and others and therefore, in exercise of right of self defence, he had wilded knife, which accidentally caused injury in the abdomen of P.W.2. She further submitted that a cross-complaint in respect of the same incident was also filed. It is her submission that the injury suffered by P.W.2 was not enough to cause death in ordinary course of nature. According to her submission, at the most the appellant can be said to have committed an offence punishable under Section 326 of IP Code and not the offence under Section 307 of IP Code. According to her submission, the incident had happened in the year 1996 and thereafter, there is nothing on record that the appellant had acted in any manner prejudicial to law and order. She, therefore, submitted that the conviction for the offence under Section 307 may be converted into Section 326 of IP Code and the sentence of imprisonment may be reduced to already undergone and the fine may be enhanced reasonably keeping in view the financial condition of the appellant. 5. Mr. K.L. Pandya, learned APP for the respondent - State has supported the impugned judgment and order. He submitted that the learned trial Judge has given cogent reasons for convicting the appellant for the offence under Section 307 of IP Code. He submitted that the appellant had caused injury in abdomen, which is a vital part of the body as is evident from the medical evidence. He submitted that the appellant has not made out any case for converting the conviction from Section 307 to Section 326 of IP Code and therefore, the appeal may be dismissed. 6. I have given thoughtful consideration to the submissions made at bar. 7. The appellant cannot dispute about the incident as the cross complaint in selfsame incident was lodged against the complainant also. 8. So far as the submission of Ms. 6. I have given thoughtful consideration to the submissions made at bar. 7. The appellant cannot dispute about the incident as the cross complaint in selfsame incident was lodged against the complainant also. 8. So far as the submission of Ms. Contractor, learned advocate for the appellant about the exercise of right of private defence by the appellant is concerned, it is trite law that such right of defence is not for retribution. The right of self defence is available in the face of imminent peril to those who acted in good faith and in no case, such right is available to a person, who stage-manages a situation wherein right can be used as shield to justify an act of aggression. In the present case, it is evident from the Panchnama - place of offence at Exhibit 28 that the incident had occurred in front of the house of P.W.2 - original complainant. It is thus, very clear that when the incident had happened in front of the house of P.W.2., the P.W.2 cannot be said to be an aggressor. Thus on overall appreciation of ocular evidence of witnesses available on record, it is does not transpire that the P.W.2 and other had made attack on the appellant and others. In the face of this factual scenario, I am of the view that the contention of learned advocate that the appellant had acted in self defence cannot be accepted. 9. It emerges from the evidence of P.W.1, Dr. Kantilal Ishwardas Patel that P.W.2 had suffered fracture on 8th right rib. Moreover, it appears from his evidence that the would was stabbed wound, which was possible by sharp cutting weapon like knife. The injury suffered by P.W. 2 was serious in nature and likely to result into death in absence of timely treatment. It is thus, very clear from the evidence of Doctor that the injury suffered by P.W.2 itself was not sufficient to cause death in ordinary course of nature. In view of this medical evidence, I am of the opinion that the conviction for the offence punishable under Section 307 of IP Code cannot be suspended. 10. It is undisputed fact that the appellant was armed with knife at the time of incident. It is very clear from the evidence available on record that P.W.2 had suffered injury by means of knife, which was fracture. 10. It is undisputed fact that the appellant was armed with knife at the time of incident. It is very clear from the evidence available on record that P.W.2 had suffered injury by means of knife, which was fracture. Section 326 of IP Code deals with voluntarily causing grievous hurt by dangerous weapons. The grievous hurt is defined in Section 320 and accordingly, fracture or dislocation of a bone or tooth is grievous hurt. It is thus, clear that the fracture is grievous hurt, suffered by P.W.2 on account of knife blow inflicted by the appellant. I am therefore, of the view that the appellant cannot be said to have committed the offence under Section 326 of IP Code. According to Section 326 of IP Code, causing grievous hurt by dangerous means is punishable with imprisonment which may extent to 10 years and shall also liable for fine. 11. The occurrence took place in the year 1996. The appellant was on bail during the trial and thereafter, he is released on bail pending the present appeal. There is nothing on record to indicate that after occurrence of the incident, which is subject matter of the present appeal, the appellant has not acted in any manner prejudicial to law and order. I am, therefore, of the view that the sentence which the appellant has undergone would be sufficient for the offence under Section 326 of IP Code while raising fine to Rs.3000/- from Rs.1000/-, in default, to suffer simple imprisonment as awarded by the learned trial Judge. 12. For the foregoing reasons, the present appeal succeeds in part. The impugned judgment and order of conviction and sentence passed by the learned Additional Sessions Judge, Mahesana, in Sessions Case No.127 of 1997 dated 07.06.2002 is modified to already undergone by the appellant by converting sentence for the offence punishable under Section 307 of Indian Penal Code into offence punishable under Section 326 of Indian Penal Code and the fine amount is enhanced upto Rs.3000/- from Rs.1000/-. Now, the appellant is directed to pay the amount of fine of Rs.2000/- before the concerned trial Court within two weeks from today, in default, to suffer simple imprisonment as awarded by the learned trial Judge. Now, the appellant is not required to undergo further sentence in respect of the offence in question. Now, the appellant is directed to pay the amount of fine of Rs.2000/- before the concerned trial Court within two weeks from today, in default, to suffer simple imprisonment as awarded by the learned trial Judge. Now, the appellant is not required to undergo further sentence in respect of the offence in question. The appellant is on bail and hence, his bail bonds stand cancelled and surety, if any, stands discharged. 12. R & P be transmitted to the concerned trial Court forthwith.