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2024 DIGILAW 258 (GUJ)

Somaji Bawaji Thakore v. State of Gujarat

2024-02-07

M.K.THAKKER

body2024
JUDGMENT : M.K. THAKKER, J. 1. The present appeal is filed under Section-374 of the Cr.P.C. challenging the judgment and order dated 28.07.2006 passed by the learned Additional Sessions Judge, Deesa at Banaskantha in Sessions Case No. 54 of 2003, whereby, the appellant-original accused no. 1 has been convicted for an offence under section-324 of IPC and ordered to undergo sentence of rigorous imprisonment of 04 months with fine of Rs. 500/- and in default of, further period of one month of simple imprisonment was ordered. 2. The case of the prosecution is in nutshell as under: 2.1 That one complaint came to be registered on 19.08.2002 by the complainant viz. Taljabhai Bhurabhai Thakor residing at village-Tervala before the P.S.I. Tharad Police Station alleging that at 4:00 o’clock in evening hours, the complainant and his cousin brothers viz. (1) Govabhai Laghabhai and (2) Rameshbhai Palabhai were returning from the Bhabhar after purchasing the household articles and when they reached to the field of the complainant, the accused no. 1 viz. Somabhai Bavaji, who met them on the road and hot altercation started with regard to the incident occurred prior to 10 days where the aunty of the accused was molested by Govabhai Lagabhai and the accused no. 1 had reprimanded to the complainant, accused No. 1 started abusing to Govaji and when Govaji was instructed not to use the said abusive language, an assault was made with Dhariya on Govaji and Govaji was fallen down. The second blow was also inflicted with dhariya and thereafter, other accused i.e. Harji Bavaji, Valaji Banaji and Bhavaji Manaji were reached to the place of incident having stick and wooden log on their hand. The complainant i.e. Taljabhai and Rameshji ran away from the place and Govaji was beaten by the accused persons. On shouting, the mother of Govaji viz. Pujiben and aunty viz. Vediben intervened and thereafter, the accused persons ran away from the place of incident. With the aforesaid allegations, an FIR came to be registered being C.R. No. I-96 of 2002 before the Tharad Police Station for the offence punishable under Sections-307, 323, 504, 34 of the IPC and Section-135 of the Bombay Police Act. 2.2 That cross FIR was also registered being C.R. No. II-75 of 2002 before the Thara Police Station for the offence punishable under Sections-323, 504, 506(2), 114 of Indian Penal Code and Section-135 of B.P. Act. 2.2 That cross FIR was also registered being C.R. No. II-75 of 2002 before the Thara Police Station for the offence punishable under Sections-323, 504, 506(2), 114 of Indian Penal Code and Section-135 of B.P. Act. Both the offences were investigated and after collecting the material, the charge-sheets were submitted before the competent court, wherein, present offence as Criminal Case No. 628 of 2002 is triable by the learned Court of Sessions under Section 209 of the Cr.P.C. the same is committed to the learned court of Sessions. Other case was also tried by the same Court and the same was renumbered as Criminal Case No. 54 of 2003. That learned Court on being satisfying about receiving charge-sheet papers by the respondent-accused, charge was framed below Exh.2 against the accused persons for the offence punishable under Sections-504, 307, 323 r/w. 4 of IPC and Section-135 of B.P. Act. The charge was read and explained over to applicant-accused and plea was recorded below Exh.3, wherein, the accused pleaded not guilty and claimed to be tried. 2.3 That to bring home the guilt of the accused, the prosecution had examined 12 witnesses and also produced documentary evidence on record. On filing the closing pursis, the statement under Section-313 of the Cr.P.C. was recorded, whereby, all incriminating material was placed before the accused, and the accused had pleaded false implication and to be innocent in the case, however, accused did not produce any documentary evidence neither examined any witness in defence. After considering all the material place before the learned trial Court and argument advanced by the respective parties, the learned trial Court acquitted all other accused except accused no. 1 for Section-324 of IPC and the accused no. 1 was convicted for the offence punishable under Section-324 of IPC and was ordered to undergo sentence of four months rigorous imprisonment with fine of Rs. 500/- and in default, further simple imprisonment of 01 month was ordered to undergo, which is impugned before this court. 3. Heard Ms. Sweta Lodha for Mr. Virat Popat, learned advocate for the appellant-original accused no. 1 and Ms. Monali H. Bhatt, learned APP for the respondent-State. 4. Ms. Sweta Lodha for the appellant-original accused no. 1 submits that the present FIR and the prosecution is the counter-blast of the FIR filed by the appellant side. 3. Heard Ms. Sweta Lodha for Mr. Virat Popat, learned advocate for the appellant-original accused no. 1 and Ms. Monali H. Bhatt, learned APP for the respondent-State. 4. Ms. Sweta Lodha for the appellant-original accused no. 1 submits that the present FIR and the prosecution is the counter-blast of the FIR filed by the appellant side. As reveals from the evidence, the complaint, which is registered by the present appellant was lodged at 7:30 p.m. on 19.07.2002, whereas, the complaint of the present case was registered at 9:30 p.m. on 19.07.2002. This fact prove through the deposition of PW-12/Investigating Officer as well as from the PW-5. That the incident, which is alleged to have been occurred at 4:00 p.m. however, the first visit to the doctor, where the doctor examined to Govaji at 7:20 p.m. Learned advocate on relying on the deposition of PWs. 5, 6, 7 and 8 submitted that they have decided to file FIR after coming into the knowledge with regard to the cross-FIR, which has been filed by the appellant. Learned advocate further submits that as per the version of PW-7, the present appellant was armed with Dhariya, which was not stated before the I.O. as per the testimony recorded at PW-12. Learned advocate relies on the evidence of the PW-5 viz. Taljabhai Bhurabhai Thakor and submitted that as per his version, the appellant met them on the way and verbally abused and thereafter, incident was occurred in a spur or moment. From the evidence of PW-6, who is injured witness has admitted in his cross-examination that the appellant was working in his farm, when the incident took place and therefore, the version, which is mentioned in chief-examination that the appellant was waiting for the complainant, was contradicted by their own version. 5. Learned advocate further submits that as per the version of eye-witness, genesis of complaint is the dispute which was taken place prior to 10 days of incident. However, in the cross-examination, the said witness denied with regard to the incident, who is aunty of the present appellant. Learned advocate further submits that as per the version of PW-7 viz. Rameshji Valaji Thakor, the incident was taken place because of the cutting of neem tree, however, from the evidence of PW-12 of the Investigating Officer, the said version was falsified and submitted that during the investigation, the same was not found to be true. Learned advocate further submits that as per the version of PW-7 viz. Rameshji Valaji Thakor, the incident was taken place because of the cutting of neem tree, however, from the evidence of PW-12 of the Investigating Officer, the said version was falsified and submitted that during the investigation, the same was not found to be true. Learned advocate further submits that PW-1 i.e. Alkaben Umeshbhai Jhaveri, who is the Medical Officer stated in her version that there are 02 head injuries caused to the injured with sharp cutting weapon and third injury was caused through blunt weapon. The Medical Officer has also accepted that the injuries were established by the dariya would be curved in nature, whereas, the injury from the knife would be on straight in nature. It is admitted by the doctor that both injuries are corresponding injuries. As per the version of doctor, the injuries were simple in nature. Learned advocate further submits that from the panchnama of place of incident, indicates that there is no any blood found from the place, where the incident had taken place. There was no any bloodstain found from the dhariya, which is alleged to have been used in the incident. Though there is blood found from the clothes of present appellant, however, no FSL report was sought for by the Investigating Officer to suggest that the blood group is of the injured witness, in fact, when the cross- FIR was also registered, and the appellant has also received injuries and therefore, there are all chance to have the blood on his own in the clothes. Learned advocate also relies on the PW-12 i.e. Hamirsinh Takhaji Zala and submitted that there is no evidence of any independent witness though they were available at the place of incident. From the evidence of this witness, it also comes on record that field of Ratanben and Govaji were adjoining to each other. Therefore, cause of quarrel as projected by the applicant appearing to be false. 6. From the evidence of this witness, it also comes on record that field of Ratanben and Govaji were adjoining to each other. Therefore, cause of quarrel as projected by the applicant appearing to be false. 6. At last, learned advocate submits that the appellant has undergone imprisonment of 28 days as a under-trial prisoner and though 18 years have passed, there was no any untoward incident reported except this, therefore, if the Court comes to the conclusion that the judgment and order passed by the learned trial Court is just and proper, the benefit of probation of offenders act be given to the present appellant or the remaining sentence be converted into fine. By summoning up the argument, learned advocate prays to quash the impugned judgment and order of conviction and allow the present appeal. 7. As against the same, learned APP for the State has submitted that from the evidence of Medical Officer, it transpired that the appellant was having the deadly weapon in his hand and had inflicted two blows on the vital part of the body by the dhariya i.e. muddamal weapon. It is established that the same is sharp cutting weapon and therefore, recovery of the muddamal was corroborated with the evidence of the Medical Officer. Learned APP submits that cross complaint was registered by the appellant side, which itself suggests the presence and occurrence of the incident. Learned APP submits that from the explanation offered for delay in FIR by the complainant in his evidence at Exh.21, that due to non-availability of the vehicle, the time was taken to bring the injured to the hospital and therefore, some delay occurred in lodging the FIR. However, as the priority is always to be given to provide medical treatment, therefore delay would not fatal the case of prosecution. Learned APP relied on the panchnama of place of offence and submits that the place of offence is near to the field of the accused, which suggests that the version narrated by the complainant and the injured is true and correct. Learned APP relied on the panchnama of place of offence and submits that the place of offence is near to the field of the accused, which suggests that the version narrated by the complainant and the injured is true and correct. Learned APP further submits that in absence of the FSL report, conclusion cannot be drawn of false prosecution and after considering all evidence in detail, the learned trial Court is justifying the appellant convicting him for the offence punishable under Section-324 of IPC and ordered to undergo sentence of 04 months rigorous imprisonment and therefore, no interference is required and prays to dismiss the appeal. 8. Considering the argument advanced by the learned advocates for the respective parties and the records, the following evidences are required to be dealt with in detail: (A) Medical Evidence: (i) The prosecution has examined the Medical Officer at PW-1 Dr. Alkaben Umeshbhai Jhaveri, who deposed in her evidence that on 19.08.2002, when she was serving as Medical Officer at CHC. Thereafter, at around 7:30 in evening hours, Govaji Laghaji Thakor came for taking treatment. She has examined him and recorded history as per his version. He disclosed that the dhariya blow was inflicted by Somaji Bhalaji. On examining the said witness, three injuries are found i.e. (i) sharp cutting wound over the mid parital region around 3 cm long x 0.5 cm broad and bone deep; (ii) sharp cutting wound over the occipital region i.e. 4 c.m. long x 0.5 c.m. broad and bone deep and (iii) swelling an tenderness over the middle place of left forearm. After the primary treatment, the injured was referred to the Civil Hospital, Patan. The injuries nos. 1 and 2 can cause by sharp cutting weapon and injury no. 3 can cause with blunt weapon. In the cross-examination, she deposed that injuries caused from sickle dhariya would curved in nature. She clarified that it depends that which part of dhariya was inflicted to the injured. She admits that as there is no muscles on the head and therefore, if the person sustained simple injury, then also, there is possibility to have deep injury on the head. (ii) The another Medical Officer, who was examined by the prosecution is Dr. Tarachand Maheshwari, PW-7, who was serving as Medical Officer at General Hospital, Patan. She admits that as there is no muscles on the head and therefore, if the person sustained simple injury, then also, there is possibility to have deep injury on the head. (ii) The another Medical Officer, who was examined by the prosecution is Dr. Tarachand Maheshwari, PW-7, who was serving as Medical Officer at General Hospital, Patan. From his evidence, it transpired that on 20.08.2002 at 1:30 o’clock in afternoon, Govaji Laghaji came who referred from the Medical Officer, Tharad. On examining, it was found that there were stiches on the head, bruises on left arm. On x-ray being taken, everything was found to be in normal. The injury, which is opined by the witness was of simple in nature. He produced the certificate at Exh.29. No any incriminating material was found in cross-examination in support of defence. (B) Evidence of Hostile Witness: The prosecution further examined the Somaji Harjiji Thakor, PW-2, hostile witness, who is panch-witness of place of offence, he did not support the case of prosecution. The panch-witness with regard to recovery of weapon i.e. Parkhanji Thakore was examined as PW-3, who also declared hostile. The independent witness about scene of incident, PW-4 viz Vejiben Thakor, who also declared hostile. In the cross-examination, she deposed that there were many cases pending against the Govaji. The witness namely Velaji Dharsiji, PW-9, a panch-witness of place of offence as well as Valaji Dhudaji, PW-10, panch-witness of recovery of weapon were declared hostile. (C) Evidence of Eye Witnesses and Injured Witnesses (i) The prosecution has examined the eye-witness and injured witness/ relative witness of complainant i.e. Taljaji Bhuraji Thakor, PW-6; Govaji Ladhaji, PW-6 and Rameshji Valaji Thakor, PW-7. From the evidence of all these witnesses, it comes on record that when they were returning from Bhabhar after purchasing the household articles, Soma Bavaji met them near the field of the complainant. He was using abusive language and therefore, PW-5 asked not to use abusive language, Soma Bavaji inflicted blow of dhariya on the head of Govaji and thereafter, the accused persons viz. Harji Bavaji and Manaji came there and they had given stick blow to Govaji. Due to injury sustained by Dhariya, Govaji was fallen down. On shouting, Puniben and Vediben came there for rescue. Harji Bavaji and Manaji came there and they had given stick blow to Govaji. Due to injury sustained by Dhariya, Govaji was fallen down. On shouting, Puniben and Vediben came there for rescue. Thereafter, the accused persons ran away from the place of incident and Govaji was taken to the hospital by Bhuraji Mohanji in the jeep and PW-5 went to the police station for lodging the FIR. It is deposed that the reason for the quarrel was with regard to the incident, which was occurred prior to 10 days. It is also admitted that the place of offence is near the field of the accused. (ii) In the cross-examination, it is admitted that during the evening hour, all are working in their field. The name of aunt of Somaji is the Ratanben. The field of Ratanben is adjoining the field of Somaji. PW-5 and PW-7 did not intervene as they were scared. On being informed that the appellant lodged the FIR, the complainant and the family members were gathered and lodged the FIR. The field is very far therefore the vehicle is to be called and therefore, delay occurred in taking the injured to the hospital. PW-6 was going to the house by passing through the field of Soma Bava. On day of incident, Somaji was working in his field. PW-6 knows the Somaji and his aunty i.e. Ratanben and field of Ratanben and field of PW-6 are adjoining. PW-6 did not disclose in the police statement that accused were hiding and waiting for the complainant. Soma Bavaji had lodged the FIR, they have decided to lodge the FIR and therefore, the complainant and family members were gathered. (iii) The last witness PW-8/Bhurabhai Mohanji Thakore, the uncle of the complainant was examined. He was not an eyewitness, only he had accompanied to the injured in the hospital. The witness i.e. Ladjiji Amraji, PW-11, who was the panch-witness about recovery of cloth of the injured. This witness supported the case of the prosecution by deposing that the bloodstain were found. (C) Police Witness: The last witness Hamirsinh Takhaji Zala was examined below PW-12 and as discussed earlier, he deposed that during his investigation, the cause of quarrel is with regard to the incident, which was occurred prior to 10 days about the molesting of Ratanben by Govaji. (C) Police Witness: The last witness Hamirsinh Takhaji Zala was examined below PW-12 and as discussed earlier, he deposed that during his investigation, the cause of quarrel is with regard to the incident, which was occurred prior to 10 days about the molesting of Ratanben by Govaji. He deposed that the complaint of Somaji Bhavaji was lodged at 19:30 hours on 19.07.2002. He had admitted that he had not seen the injured. The FIR was exhibited through this witness below Exh.38. (9) Appreciation and Conclusion: The documentary evidence, which was placed on record, which may be in the nature of place of panchnama, Exh.17, which was proved through the evidence of PW-12, which suggests that the household articles were lying at the place of offence. The evidence of the injured witness and other eye-witness regarding return from the Tharad after purchasing the household articles was corroborated with place of panchnama Exhibit 17. From the cross-FIR, which was registered by the appellant-side, suggests that the presence of the present appellant at the place of offence, the reason for quarreling was different from the evidence of the prosecution witness, but causing injury with the deadly weapon on the vital part of the body of the present appellant to the Govaji would certainly attract the provision of Section-324 of the IPC. The defence had tried to falsified the case on the basis of delay in lodging the FIR, however, as it is explained by the prosecution witness that there was some time occurred in calling the vehicle and after the PW-6 was taken to the hospital and PW-5 went to lodge the FIR. As delay in every matter would not fatal in the prosecution, therefore, the delay of 04 hours would not fatal the case of the complainant. 9. One more aspect i.e. the history was given before the doctor also reflects the name of the present applicant, who caused injury by the Dhariya, also inspired the confidence on the case of the prosecution. Though accused had tried to take the defence that knife was the weapon, whereby, the injury was caused, but that was denied by the Medical Officer in his evidence. The learned advocate for the appellant had argued that after coming into knowledge with regard to the cross-FIR, the complainant and the family members has decided to lodge the FIR against the appellant. The learned advocate for the appellant had argued that after coming into knowledge with regard to the cross-FIR, the complainant and the family members has decided to lodge the FIR against the appellant. Even if that is so, then also, the same would not falsify the case as from the evidence of the complainant and other witness, it transpired that on receiving the injury by the PW-6, first he was taken to the hospital and thereafter, PW-5 approached the police station. Therefore, even if the FIR was lodged after coming into the knowledge with regard to the cross-FIR, same would not also help to the accused persons and thereby the accused can not be said to be falsely implicated. 10. After considering the overall evidence, ts this Court is of the view that the accused had given the Dhariya blow on the head of the PW-6, the muddamaal Dhariya was recovered from the accused. The endorsement by the doctor in the history that injury was caused by the accused as well as other witnesses testified that on a particular date and time on the PW-6 attack was made by Dhariya, which is sharp cutting weapon as well as by the Lathi, which hard blut substance, inspire evidence. further it was corroborated with the evidence of injured witness as well as the medical report. Testimony of the doctors about the weapon used by the appellant was found trustworthy. Delay in lodging the FIR was also not fatal in view of the explanation that they had first taken the injured to the hospital. Considering the same, the conviction of the appellant is held proper and there is no illegality, impropriety and perversity in the impugned judgment and order passed by the learned trial Court. 11. As the accused was convicted under Section 324 of the Indian Penal Code and remained in custody for the period of 28 days and 18 years have been passed of the incident and there was no any untoward incident reported as well as considering the nature of injury, which is simple, this Court deems it fit to convert the conviction into the undergone period. 12. In view of the above, the present appeal is partly allowed. 12. In view of the above, the present appeal is partly allowed. The judgment and order of conviction passed by the learned trial Court in the Sessions Case No. 54 of 2003 is hereby confirmed, however, the sentence, which is imposed by the learned trial Court, is altered into the undergone period. 13. In view of the above, the appeal is disposed of accordingly. The Record and Proceedings be sent back to the concerned Court forthwith.