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2019 DIGILAW 881 (GUJ)

Rajesh Ratilal Darji v. State of Gujarat

2019-10-10

ABDULLAH GULAMAHMED URAIZEE

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JUDGMENT : Abdullah Gulamahmed Uraizee, J. 1. The appellant-original accused has preferred this appeal under Section 374 of the Code of Criminal Procedure, 1973 ('the Code' for short) to assail the judgment and order of sentence dated 06.04.2004 passed by the learned Additional Sessions Judge and Fast Track Court Judge, Dhangdhra in Sessions Case No. 08 of 1999 where-under the appellant is convicted for offence punishable under Section 324 read with Section 114 of the Indian Penal Code ('IPC' for short) and inflicted sentence as under: Nature of offence Sentence 324 and 114 of IPC R.I. for 1 year and fine of Rs. 250/-, in default, to further undergo 1 month R.I. 2. The facts in brief giving rise to present appeal as could be gathered from the impugned judgment and connected materials are that Nathubhai Laghrabhai-(PW-1)-original complainant and Khodabhai Avasarbhai (PW-2) and one Umar Hasan were riding on motorcycle on 12.07.1998 and they were going towards vegetable market and at that time, the appellant and his brother Sudhir Ratilal intercepted their motorcycle. Sudhir Ratilal started abusing Umar Hasan keeping grudge about the quarrel between his brother i.e. the appellant and Isha- brother of Umar. At that time, appellant took out knife and appellant as well as his brother Sudhir started scuffle with Umar Hassan and PW-2. The appellant attacked Umar with knife. PW-1 intervened to save Umar and therefore, he was also attacked by the appellant and sustained injury on left hand thumb. PW-1 lodged complaint in respect of this incident with Dhangadhra City Police Station. On basis of which FIR vide I-C.R. No. 68 of 1998 for the offence punishable under Section 324 read with Section 114 of the Indian Penal Code was registered. 3. Upon conclusion of investigation, the charge-sheet was filed against the accused. 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. 4. The charge was framed at Exh. 4 and the accused pleaded not guilty to the charge and came to be tried and so to substantiate the charges levelled against the accused, the prosecution led oral as well as documentary evidences and after evaluating the evidence, the learned Trial Judge convicted and sentenced the accused as above. 5. The prosecution, adduced following documentary and ocular evidence to prove the guilt of the accused. 5. The prosecution, adduced following documentary and ocular evidence to prove the guilt of the accused. ORAL EVIDENCE AND DOCUMENTARY EVIDENCE Deposition of Natubhai Lagharabhai – Witness No.1 Exh.9 Deposition of Khodabhai Avsarbhai – Witness No.2 Exh.10 Deposition of Nazimbhai Kasambhai Belim – Witness No.3 Exh.11 Panchnama of recovery of knife at the instance of accused Exh.12 Deposition of Kalubhai Bhikhabhai – Witness no.4 Exh.13 Panchnama of the scene of offence Exh.14 Deposition of Dr. Babulal Tribhovandas Witness No.15 Exh. 15 Police Yadi Exh.16 Certificate of Injury sustained to the complainant Exh.17 Deposition of Dharmendrabhai Himatlal – Witness No.6 Exh.18 Deposition of PSO Valjibhai Govindbhai – Witness No.7 Exh.19 Complaint Exh.20 Deposition of PSO – Amarsinh Manjibhai – Witness No.7 Exh.21 Deposition of Bharat kumar Baldevbhai – Witness No.9 Exh.22 Deposition of Kishorsinh Manharsinh Jadeja – Witness No.10 Exh.23 6. 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 way of the impugned judgment and order. 7. I have heard Mr. Jitendra Sheth learned advocate for the appellant and Mr. K.L. Pandya, learned APP for the respondent-State. Perused the record of Sessions Case No. 08 of 1999. 8. Mr. Sheth, learned advocate for the appellant at the outset, he submitted that the appellant does not proposed to challenge conviction on merits, however, he submitted that as the incident had taken place around 21 years ago and that the appellant has no criminal antecedent, while maintaining the conviction, substantive sentence may be reduced to already undergone and the payment of fine may be enhanced. 9. Mr. K.L. Pandya, learned APP has supported the impugned judgment. He submitted that the injured witnesses have supported the prosecution case and the prosecution has proved the case against the appellant beyond reasonable doubt. It is his further submission that considering the nature of injury suffered by the injured and the evidence of PW-1-original complainant, the sentence imposed on the appellant does not call for any interference in this appeal. 10. The prosecution case rests on the evidence of PW-1-original complainant and evidence of Khodabhai Avsarbhai (PW-2). It emerges from the evidence of PW-1 that he has fully supported the prosecution case. 10. The prosecution case rests on the evidence of PW-1-original complainant and evidence of Khodabhai Avsarbhai (PW-2). It emerges from the evidence of PW-1 that he has fully supported the prosecution case. PW-2, 3, 4 and 6 have not supported the prosecution case. Moreover, it appears from the evidence of PW-1 and the evidence of Dr. Babulal Malampara (PW-5) that PW-1 had suffered one muscle injury on left thumb and head haematoma on the occipital region. The injuries were simple in nature. Hence, considering the evidence of PW-1 and PW-5, I am of the view that the prosecution has successfully proved the case against the appellant beyond reasonable doubt and the learned trial Judge has not committed any error in convicting the appellant under Section 324 of the Indian Penal Code. 11. However, it emerges from the record that incident had happened in the year 1999. The genesis of the incident was some dispute between the brother of the appellant and brother of one Umar Hasan. It is not brought to the notice of this Court that in the intervening period, the appellant had acted in any manner prejudicial to law and order. The appellant had no criminal antecedent nor he has come into conflict in the intervening period. Hence, considering the fact that the incident had happened around 21 years and when the Section 324 provides for punishment of imprisonment or fine or both and I am of the view that end of justice served if the substantive sentence is reduced to already undergone and the fine is enhanced. 12. For the foregoing reasons, the appeal succeeds in part. While maintaining the conviction for offence punishable under Section 324 of the Indian Penal Code, the substantive sentence is reduced to already undergone and fine imposed on the appellant is enhanced to Rs. 2000/- from Rs. 250/- as imposed by the learned Trial Judge. 13. The appellant is directed to deposit the balance amount of fine of Rs. 1750/- in the Trial Court on or before 30.11.2019. 14. Since the accused person is on bail, his bail bond stands cancelled and surety, if any stands discharged. 15. Record and proceedings is ordered to be transmitted to the concerned trial Court forthwith.