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Gujarat High Court · body

2020 DIGILAW 170 (GUJ)

Prakashbhai Sevakram Sindhi v. State of Gujarat

2020-01-27

V.P.PATEL

body2020
JUDGMENT V.P. Patel, J. 1. The Appellant Accused has filed this Appeal under Section 374 of the Code of Criminal Procedure ("the Code" for short) being aggrieved and dissatisfied with the conviction order dated 17.2.2004 passed by the learned Additional Sessions Judge, Banaskantha at Deesa in Sessions Case No. 9 of 1999. The learned Sessions Judge convicted the Appellant Accused under Sections 307 and 504 of the Indian Penal Code and 135 of the B.P. Act and imposed the sentence as under: Sr. Offence Sentence and Fine Sentence in default 1 307 , IPC R.I. For 4 Years and fine of Rs. 1,500 R.I. for 9 Months 2 504 , IPC R.I. For 3 Months and fine of Rs. 200 R.I. For 15 days 3 135 B.P. Act R.I. For 4 Months and fine of Rs. 200 R.I. For 1 Month (1)Accused shall undergo all punishment concurrently 2. Heard learned Advocate Mr. Shakeel A. Qureshi for the Appellant and learned APP Ms. Jirga Jhaveri for the Respondent-State of Gujarat. 3. Facts of the Case: 3.1 The Original Complainant Rameshbhai Bhagwanbhai Mali has filed a complaint on 21.1.1998 at Deesa City Police Station, District Banaskantha which was registered as I-CR No. 16/1998 for the offence punishable under Sections 307 and 504 of the Indian Penal Code ("IPC" for short) and Section 135 of the Bombay Police Act (for short "B.P. Act"). 3.2 As per the complaint which is lodged at 20:15 hours, the incident took place on 21.1.1998 at about 18:00 hours in the sim of village Deesa. On 21.1.1998, the complainant Rameshbhai and his brother closed their shop at 6:00 p.m. and went to their house. They were seated in their house. At the time from outside their house, someone called his brother Pankaj who immediately came out and gone to the gateau of Chamunda Society. The complainant heard the screams of Pankaj and thus he too immediately gone there and what he saw was that the driver of the Auto Rickshaw bearing registration No: GJ 8T 1829 named Prakash Sevakram Sindhi was giving knife blows to his brother Pankaj. The complainant shouted, due to which nearby residents came there. The driver of the Auto Rickshaw fled away from the spot. The brother of the complainant was bleeding from his mouth, stomach and neck. The complainant shouted, due to which nearby residents came there. The driver of the Auto Rickshaw fled away from the spot. The brother of the complainant was bleeding from his mouth, stomach and neck. On asking Pankaj, he told that two days before near Ambika Chowk he had some altercations with the complainant as regards to parking of Rickshaw. The complainant at that time told Pankaj that he will seek him later and left the place on that date. Today he called me from my house and abused me and took out his knife from his pocket and inflicted me severe knife blows on my neck, stomach and face. 3.3 After completing the investigation the Investigating Officer has filed the charge sheet before the Judicial Magistrate First Class, Deesa which is registered as Criminal Case No. 790 of 1998. The learned Judicial Magistrate First Class Deesa committed the case under Section 209 of the Code to the Court of Sessions, Banaskantha at Palanpur on 24.1.1998. Thereafter the committal case is registered as Sessions Case No. 9 of 1999. The learned Trial Sessions Judge framed charge on 31.5.2003 vide Exh. 2 for the offence punishable under Sections 307 and 504, IPC and under Section 135 of the B.P. Act. The Accused denied the charge and claimed for trial. 3.4 The prosecution has examined 12 witnesses and produced 20 documentary evidence before the trial court. The learned trial court has recorded the further statement of the Appellant Accused under Section 313 of the Code wherein he has denied the case of the prosecution and replied that false case is filed. The learned Trial Court has heard the PP for the prosecution and learned Advocate for the defence and passed the impugned judgment and order. Arguments for the Appellant: 4. Learned Advocate for the Appellant has argued that the order passed by the learned Sessions Judge is contrary on the facts and law. That the oral as well as documentary evidences are not appreciated in its proper perspective. That the conviction held by the learned Sessions Judge is unjust and improper in the facts and circumstances of the case. That the authorities cited at the bar are not considered by the learned trial court. That the learned trial court has committed illegality and irregularity in believing the case of the prosecution, the same would cause gross miscarriage of justice. That the authorities cited at the bar are not considered by the learned trial court. That the learned trial court has committed illegality and irregularity in believing the case of the prosecution, the same would cause gross miscarriage of justice. That the impugned order is based on conjectures and surmises. That the witnesses have exaggerated the facts of the case which is considered by the learned trial court. That the injury caused to the injured is simple injury and that the at the most it is case under Section 324, IPC. That the conviction is bad, illegal and against the criminal jurisprudence and is therefore liable to be quashed and set aside. Learned Advocate for the Appellant therefore requested that the Appeal be allowed and conviction and sentence passed by the learned trial court be quashed and aside. Learned Advocate for the Appellant submitted that if this court comes to the conclusion that the offence under Section 324, IPC is made out, in that case, he has requested to impose sentence for the period already undergone. Arguments of the Defence: 5. Learned APP has argued that the conviction order passed by the learned Sessions Judge is according to law and evidence on record. That the learned Sessions Jude has appreciated the oral as well as documentary evidence in its proper perspective. That the prosecution has established the ingredients of the offence under Section 307 and 504, IPC and Section 135 of the B.P. Act. That the prosecution has examined the complainant, the injured witness who supported the case of the prosecution. That the version of the eyewitnesses are supported by the medical evidence. That the Doctors who have treated the injured are examined. They have supported the prosecution case and established the charge levelled against the Appellant Accused. That the judgment and order passed by the learned trial court is legal and correct and there is no there is no need to interfere with the impugned judgment and order. The learned APP therefore requested to dismiss the Appeal. Merits of the Case: 6. The prosecution has examined PW-2-Complainant-Rameshkumar Bhagwandas Padiar at Exh. 8. He has stated in his deposition that on 21.1.1998 at 6:00 p.m. he was sitting in his house with his brother. The learned APP therefore requested to dismiss the Appeal. Merits of the Case: 6. The prosecution has examined PW-2-Complainant-Rameshkumar Bhagwandas Padiar at Exh. 8. He has stated in his deposition that on 21.1.1998 at 6:00 p.m. he was sitting in his house with his brother. That someone called his brother Pankaj from outside and that's why his brother has gone outside from the house and reached at the gateau of Chamunda society. Thereafter he has heard the screams of his brother. He went there and saw that Prakash Sevakram Sindhi was inflicting knife blows to his bother on the abdomen part, on the neck side and on the mouth. He has asked his brother about the incident. His brother replied that two days ago there was an altercation between him and the Appellant Accused Prakash Sevakram Sindhi about parking of the rickshaw and Prakash Sevakram Sindhi had threatened him to see him later. It is also stated by him to the complainant as to how the incident took place. Thereafter the injured was shifted to Civil Hospital in an Auto Rickshaw. After taking primary treatment, he was shifted to the Bansali Hospital and thereafter he was shifted to Rajesh Hospital, Ahmedabad. It is also stated that he has filed complaint before the police station. He has identified the Appellant Accused and the weapon knife which is shown during trial. He has further admitted the contents of the FIR and the signature on the complaint. This witness is cross-examined by the learned Advocate for the defence. He has denied the suggestion made by the Appellant. Nothing revealed from the cross examination which can cause damage to the prosecution case. 7. The prosecution has examined PW-3-injured witness-Pankajkumar Bhagwandas Padiar at Exh. 9. This witness in his deposition has stated that someone called him from outside and that's why he had gone outside from the house and reached at the gateau of Chamunda society where Prakash Sevakram Sindhi abused him and inflicted knife blows on his abdomen, neck and face. That my brother and my other friends came there on listening my screams. He was fall down. He has deposed that two days ago there was an altercation between him and the Appellant Accused Prakash Sevakram Sindhi about parking of the rickshaw and Prakash Sevakram Sindhi had threatened him to seek him later. That my brother and my other friends came there on listening my screams. He was fall down. He has deposed that two days ago there was an altercation between him and the Appellant Accused Prakash Sevakram Sindhi about parking of the rickshaw and Prakash Sevakram Sindhi had threatened him to seek him later. On arriving his brother, Kamleshbhai K. Thakkar, Rajubhai Mali, Ashok Rajput, the accused was flee away. Thereafter, he was shifted to Civil Hospital in an Auto Rickshaw. After taking primary treatment, I was shifted to Bansali Hospital and thereafter I was shifted to Rajesh Hospital, Ahmedabad. He has identified the Appellant Accused and the weapon knife which is shown during trial. He is cross-examined by defence Advocate. He has explained the place of incident. He has denied suggestion made by learned Advocate of defence. Medical Evidence: 8. The prosecution has examined PW-1 Dr. Dhirajbhai Devabhai Jagadia at Exh. 6. He has stated in his chief-examination that on 21.1.1998 he was on duty with Deesa Sarvar Hospital. The injured Pankajbhai was brought before him for treatment with police yadi. He has stated in the history that on examination, the following injuries were found on the body of the injured: (i) Injury No.-incise wound on the right upper lip of size 4 cm x 0.5 cm deep skin; (ii) Injury No. 2-incise wound on the left side of neck with size 1 cm x 0.5 cm deep skin and soft tissue and face injury. The patient was conscious. It is further opined that the injury by a sharp cutting instrument and can be recovered within 7 to 10 days if no complication arise. It is to be noted that as per the complaint and evidence of the injured witness no injury is found on the abdomen. It is stated that he could not opined that the injury can be done with a particular weapon. It is admitted that there were no other injury except above two injuries. 9. The prosecution has examined PW-10 Dr. Babubhai Magandas Patel at Exh. 35. He has deposed that on 22.1.1998 Pankajbhai Padiar was admitted in emergency ward in Rajasthan Hospital. Thereafter his senior surgeon Dr. S.T. Ukreti has examined and operated. An injury was there on the face and on the right Hypochondria (lever injury). The exploratory Laparotomy was done and injury was repaired. The patient was discharged on 31.1.1998. 35. He has deposed that on 22.1.1998 Pankajbhai Padiar was admitted in emergency ward in Rajasthan Hospital. Thereafter his senior surgeon Dr. S.T. Ukreti has examined and operated. An injury was there on the face and on the right Hypochondria (lever injury). The exploratory Laparotomy was done and injury was repaired. The patient was discharged on 31.1.1998. The Outdoor case paper number is 432252 and Indoor Case No. is 90989. He has produced discharge card. He has identified his signature and the signature of the medical officer. The discharge card is exhibited at Exh. 36. He has also produced reference note which is produced at Exh. 37. It is admitted in the cross-examination that there is no name of the Doctor who referred the patient. It is true that he has not given treatment to the patient and that no treatment is done in his presence. No signature is made on document Exh. 36. That only two injuries are shown and that there was no injury on me neck as per Exh. 36. 10. The prosecution has examined PW-11 Lallubhai Chelabhai Parmar at Exh. 38 who is Executive Magistrate and who has recorded the dying declaration. The dying declaration is at Exh. 39 and as the injured was alive it cannot be considered as dying decimation. It can be use to contradict the witness or corroborate the case of prosecution. There is contradiction as regards to the name of accused, presence of witnesses, Rikshaw Number, etc. But the injured witness's attention was not drawn at the above contradiction. Other witnesses: 11. The prosecution has examined PW-4 Narsinhbhai Fulabhai Mali at Exh. 11 who is panch witness of the panchnama of the scene of offence. He has supported the case of the prosecution. He has narrated the facts about the panchnama. He is also the panch witness of the arrest panchnama of the Accused. He has also identified the facts of the arrest panchnama. He has identified his signature on the slip as well as slip at Exh. 12 and Exh. 14, panchnama at exh. 13 and Exh. 17. 12. The prosecution has examined PW-5 Babarbai Ramabhai Khatanaat at Exh. 20. He is Circle Inspector, Deesa. He has prepared the map of the scheme of offence which is exhibited at Exh. 22. 13. The prosecution has examined PW-6 Kamlesh Kantilal Thakkar at Exh. 23 and PW-7 Rajubhai Babubhai Tank at Exh. 14, panchnama at exh. 13 and Exh. 17. 12. The prosecution has examined PW-5 Babarbai Ramabhai Khatanaat at Exh. 20. He is Circle Inspector, Deesa. He has prepared the map of the scheme of offence which is exhibited at Exh. 22. 13. The prosecution has examined PW-6 Kamlesh Kantilal Thakkar at Exh. 23 and PW-7 Rajubhai Babubhai Tank at Exh. 24 who happened to be an eyewitness of the incident They have deposed about the incident, identification of the Appellant Accused and identification of knife before the court etc. They have supported the prosecution case. 14. The prosecution has examined PW-8 Galbabhai Khemabhai Parmar at Exh. 25. He is ASI on duty of Deesa Police Station. He has recorded the FIR and registered the offence and handed over the investigation to the PI Deesa Police Station. 15. The prosecution has examined PW-9 Beraji Ramajbhai at Exh. 30 who is panch witness of the recovery panchnama by which one shirt and one jersey of the complainant was recovered. He has supported the prosecution case. He-has narrated the facts of the panchnama and the panchnama is exhibited at Exh. 33. He is also panch witness of the discovery panchnama by which the Appellant Accused has discovered the weapon knife in his presence. He has supported the prosecution case. 16. Considering the evidence discussed as above, the following facts emerge: (a) PW-1 Dr. Dhirajbhai Devabhai Jaghadia. According to him, the injury caused by sharp cutting instrument and can be recovered within 7 and 10 days if no complication arises. It is also stated that there is no need for treatment. He has stated that if complication arises the treatment is required. (b) As per the deposition of PW-10 Dr. Babubhai Magandas Patel, there are two injuries. The patient was admitted on 21.1.1998 and was discharged on 31.1.1998. The patient was not admitted for more than 20 days. As per Section 320 (8), the injury cannot be said to be grievous hurt. (c) There is no consistency about the number of injury and part of the body where injury was inflicted. (d) No injury is found on the vital part of the body. (e) The injuries are not of such a nature that it can cause death. (f) Assaulter had an opportunity to inflict blows on vital part of the body and had chances to inflict number of blows to injured. 16.1. (d) No injury is found on the vital part of the body. (e) The injuries are not of such a nature that it can cause death. (f) Assaulter had an opportunity to inflict blows on vital part of the body and had chances to inflict number of blows to injured. 16.1. Considering the above factual aspects and evidence discussed here in above, the court is of the opinion that the learned trial court has committed error in believing the case for the offence under Section 307, IPC. Looking to the injuries (hurt) and medical evidence, the weapon used in the commission of the offence and in the facts and circumstances of the case, this court is of the view that the Accused has voluntarily causes hurt by means of instrument for stabbing or cutting or instrument which is used as weapon of an offence and thus the accused is guilty for the offence punishable under Section 324, IPC. It is relevant to note here that under Section 222 of Cr.P.C. when minor offence proved included in offence charged though he was not charged with it. Further, I believe that the Appellant Accused has rightly been convicted for the offence punishable under Section 504 IPC and Section 135 of the B.P. Act. 17. It is also submitted that the incident was occurred on 21.1.1998. More than 20 years have been passed. At this stage, leaned Advocate for the Appellant submitted that he has no objection if the fine is increased as deem fit by this Hon'ble Court and the Applicant Accused may be pardoned and awarded sentence already undergone. 18. Learned APP for the Respondent State submitted that considering the facts and circumstances of the case and court has discretionary power in awarding sentence just and appropriate order may be passed. She has submitted the jail remarks. 19. As per the jail remarks submitted by the learned APP, following acts emerged: Sr. Particulars Facts 1. Prisoner's Badge Number, Name and Age K/3800, Prakashkumar Sevram Sandhi, 46 Years 2. Sessions Case 09/1999 3. Sentence 4 Years, Fine 4. Sections 307 and 504 IPC 5. Date of arrest 17.2.2004, Disha City Police Station, I-CR No. 1671998 6. Set off 00-00-22 (22.01.1998 to 12.2.1998) 7. Actual sentence undergone 00 Year, 03 Months and 01 Day Justification: 20. Prisoner's Badge Number, Name and Age K/3800, Prakashkumar Sevram Sandhi, 46 Years 2. Sessions Case 09/1999 3. Sentence 4 Years, Fine 4. Sections 307 and 504 IPC 5. Date of arrest 17.2.2004, Disha City Police Station, I-CR No. 1671998 6. Set off 00-00-22 (22.01.1998 to 12.2.1998) 7. Actual sentence undergone 00 Year, 03 Months and 01 Day Justification: 20. The prosecution has proved the offences punishable under Sections 324 and 504, IPC and Section 135 of B.P. Act. Now considering the facts of the case, this court has to decide what punishment is adequate. This court has considered following circumstances for awarding sentence and fine: (a) That the Appellant was' arrested and thereafter released on bail during trial. (b) The Appellant was taken into custody at the end of trial. Thereafter he was released on bail after admitting the Appeal and he was remained on bail during pendency of Appeal. (c) As per the jail remarks, he remained in jail for a period of 3 months and I day. (d) The incident took place on 21.1.1998 i.e. more than 22 years ago. (e) The maximum punishment prescribed for the convicted offence u/Ss. 324 and 504, IPC and u/S. 135 of B.P. Act is imprisonment of 3 years or fine or both, (f) There is no minimum sentence prescribed under the law for the offence convicted. 21. In view of the above discussion, facts and circumstances of the case, this court is of the view that the ends of justice would be met if the sentence of imprisonment awarded for the offence under Sections 324 and 504, IPC and under Section 135 of B.P. Act by the learned Sessions Judge against the Appellant Accused be reduced to the period already undergone and fine be increased substantially. Hence following order is passed: FINAL ORDER (i) For the reasons recorded herein above the present Appeal is partly allowed. (ii) The judgment and order convicting and sentencing the Appellant Accused for the offence under Sections 307 and 504, IPC and under Section 135 of B.P. Act by the learned Additional Sessions Judge Disha, Banaskantha dated 17.2.2004 in Sessions Case No. 9 of 1999 is partly modified as under; (iii) Appellant/Accused is convicted for the offence under Sections 324 and 504 of IPC and u/S. 135 of B.P. Act and sentence as under: Sr. Offence Sentence Fine and Sentence in default 1 304 IPC Sentence Already Undergone Rs. 30,000/- in default 9 months S.I. 2 504 IPC Rs. 20,000/- in default 6 months S.I. 3 135 B.P. Act Rs. 100/- in default 7 days S.I. (iv) The Appellant shall pay remaining amount of fine within 45 days from today. If amount of fine is not paid within given time the learned Trial Court shall proceed for execution of order in accordance with law. (v) Out of Rs. 50,100/- fine, an amount of Rs. 40,000/- is directed to be paid to the injured witness No. 3-Pankajkumar Bhagwandas Padhiar under Section 357 of the Cr.P.C. on proper verification, by account payee cheque. (vi) The bail bond stands discharged. (vii) The Registry is directed to send copy of this judgment to the concerned court for certification under Section 388 of the Code. (viii) R and P be sent back to the trial court forthwith.