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Judgment
The present conviction Appeal has been filed by the appellants?original accused, under Section 374(2) of the Cr. P.C., against the Judgment and order dated 18.12.1998 rendered in Sessions Case No.276 of 1995 by the learned Additional City Sessions Judge, Court No.14, Ahmedabad,
whereby the appellants-accused were convicted for the offence punishable under Section 325 of the Indian Penal Code and sentenced to undergo one and half year rigorous imprisonment with fine of Rs.2000/-, in default of payment of fine, further rigorous imprisonment of one month.
It is the case of the prosecution that the complainant was informed by grant daughter Usha that Ranchhodmama i.e. the son of the complainant is beaten and his dead body is lying near Dispensary of Dr. Shankarlal at the corner of Trikamda?s Chawl. Thereupon the complainant went to the place of offence and found that his son deceased Ranchhodbhai alias Madhio was lying. It is also the case of the prosecution that his other son Chaman had also informed that the deceased Ranchhod alias Madhio has been murdered by accused Nos.1 to 4. Therefore, a complaint was lodged by the complainant Maganbhai Fuljibhai who is father of the deceased Ranchhodbhai alias Madhio being C.R.No.299 of 1994 before the Shahibuag Police Station for the offences punishable under Sections 302 and 114 of the Indian Penal Code.
Thereafter, the investigation was carried out and statement of the witnesses were recorded. Pnchnama of scene of offence was drawn and appellants-accused got arrested.
After collecting the evidence by the Investigating Agency, charge-sheet was filed before the learned Metropolitan Magistrate, Court No.2, Ahmedabad on 16.01.1995. As the said case was exclusively triable by the Court of Sessions, learned Metropolitan Magistrate, Court No.2,
Ahmedabad committed the case to learned Sessions Judge, Ahmedabad under Section 209 of the Criminal Procedure Code vide committal order dated 04.08.1995, which was numbered as Sessions Case No.276 of 1995.
On the basis of above allegations, charge was framed against the appellants-accused and read-over and explained to the appellants-accused for the alleged offences and plea was recorded, wherein, appellants-accused pleaded not guilty to the charge and claimed to be tried.
In order to bring home the charges against the accused person, prosecution has examined several witnesses and also produced documentary evidences.
Thereafter, after filing closing pursis by the prosecution, further statement of the appellants-accused under Section 313 of the Code of Criminal Procedure, 1973 were recorded, wherein the appellants have denied the case of the prosecution and has pleaded their innocence. The appellants have submitted that a false case is filed against them.
Being aggrieved by and dissatisfied with the impugned judgment and order of conviction and sentence passed by the learned Additional City Sessions Judge, Court No.14, Ahmedabad, the present appellants-accused have preferred this appeal.
Heard Mr.Hardik Brahmbhatt, learned advocate for the
appellants-accused and Mr. N.J.Shah, learned Additional Public Prosecutor for the respondent-State.
Mr.Hardik Brahmbhatt, learned advocate for the appellants-accused contended that the judgment and order passed by the learned Sessions Judge is illegal, invalid and improper. He has also contended that the learned Sessions Judge has not considered the case of the defence and material evidence produced on record and has passed absolutely wrong order. He has contended that the prosecution has miserably failed to prove its case beyond reasonable doubt, yet the learned Sessions Judge has not considered the probable defence of the appellants and has wrongly convicted the appellants. Mr. Brahmbhatt, contended that during the trial, original accused No.4-Vitthalbhai Raibhanbhai Patel was expired on 10.05.2009 and death certificate to that effect is also produced on record and therefore, present appeal qua respondent No.4 may be abatted. The prosecution has examined complainant as well as eye witness Ushaben. He contended that the complainant Maganbahi Fuljibhai has no personal knowledge as he was not present at the time of scene of offence. The learned trial Judge has convicted the appellants-accused solely on the basis of version of eye witness Ushaben and therefore, when entire case depends upon the evidence of sole witness, then such evidence is required to be scrutinized very closely as she is interested witness as deceased was her maternal uncle. She stated in her complainant that the accused persons ran after her and other uncle Chaman and she has seen the accused persons, but she did not see them returning back. He drew attention of the
Court to definition of "Grievous Hurt" and contended that the present case does not fall within the purview of "Grievous Hurt". He contended that though eyewitness Ushaben narrated the so-called incident, but she did not say that who had given the fist blow where and how the injury caused to the deceased. He contended that the cause of death stated in column No.17 of the Postmortem was due to rupture of splint. He stated that when a person is habitual drunker and when a person is facing fear of malaria etc., splint can be ruptured. In present case, allegation made the witnesses is that fist and kick blows were given to the deceased, however, because of which splint cannot be ruptured. Therefore, the learned trial Judge has wrongly considered the evidence of Ushaben reliable, trustworthy and acceptable. He further contended that main witness Chamanbhai Patni was stated to have been present at the time of offence, is not examined by the prosecution. Initially, charge under Section 302 of the IPC was framed against the appellants-accused, however, though the appellants are not attributed with any intention or the knowledge for the act, they were convicted under Section 325 of the IPC instead of Section 302 of the IPC. Learned advocate for the appellants argued at length and contended that the judgment and order of the learned trial Judge is against the provisions of law and learned trial Judge has wrongly considered the evidence of the prosecution and wrongly convicted them for the alleged offences. Therefore, considering the above aspects, the learned trial Judge committed grave error by convicting the appellants-accused for the alleged offence and therefor, he prayed to allow this appeal by quashing and setting the judgment and order of the learned trial Court.
As against this, Mr.N.J.Shah, learned Additional Public Prosecutor, has contended that the judgment and order passed by the learned Sessions Judge is absolutely just and proper. He has contended that the prosecution has proved its case beyond reasonable doubt. He contended that all the appellants-accused had jointly beaten the deceased and caused injuries to him and he succumbed to the death and therefore, they have committed the offence under Section 302 of the IPC. He contended that offence has taken place on public road. It is required to be noted that when such incident has taken place, there was crowd of about 400 persons including the eye witness who has related to the deceased, but nobody could dare to intervene which would suggest the conduct and atmosphere created by the appellants-accused. He contended that Ushaben is an eye-witness and her conduct is very natural and therefore, her evidence should be accepted. He contended that when Ushaben entered into the mob, she saw that all the appellants-accused were giving fist and kick blows to the deceased. She further stated that when she tried to protect her maternal uncle, the appellants-accused ran towards her and therefore, she and other uncle Chamanbhai ran away from that place. He further stated that doctor in his evidence specifically stated that the said injuries could be possible due to kick and fist blows. He contended that looking to the overall facts and circumstances of the case, and evidence produced on record, the order passed by the learned Sessions Judge is absolutely just and legal and is not required to be interfered with and therefore, he prayed to dismiss the present appeal.
I have gone through the impugned judgment and order passed by the learned Sessions Judge and oral as well as documentary evidence produced on record of the case. I have read the oral evidence of prosecution witness and also perused the charge framed against the appellants.
Since accused No.4-Vitthalbhai Raibhanbhai Patel was expired on 10.05.2009, present appeal qua respondent No.4 is abatted. Initially charge under Section 302 of the IPC was framed against the appellants-accused. All the accused persons attacked and beaten the deceased which has resulted in the death of the deceased. Therefore, all the accused persons had common object of beating and thereby abetted each other. Mr. Brahmbhatt, learned advocate though submitted that it is not clear that who had given the fist blow and how the injury caused to the deceased, but the fact remains that all the accused persons had beaten with the common object of causing such grievous hurt to the deceased without knowledge that it is likely to cause the death. I have minutely perused the evidence of eye-witness Ushaben She specifically sated that she had gone to take the vegetables, where she saw crowd and when she entered in the crowd, she found that the accused persons were beating the deceased. She had raised the shouts for help, but nobody came forward as the people were scared by the appellants-accused. Therefore, her evidence can be considered as reliable, trustworthy and acceptable.
I am, therefore of the opinion that the learned trial Judge has not committed any error in convicting the
appellants-accused. Therefore, no interference is required. The judgment and order of conviction dated 18.12.1998 passed in Sessions Case No.276 of 1995 by the learned Additional City Sessions Judge, Court No.14, Ahmedabad is hereby confirmed. The present Appeal deserves to be dismissed and is hereby dismissed. Record and Proceedings, if any, be sent back to the trial Court concerned, forthwith. The bail bond of the appellants-accused shall stand cancelled and they are directed to surrender before the jail authority within a period of four weeks from today.