Digvijaysinh Manubha Dhadhal and Others vs State of Gujarat

Z.K. Saiyed, J.—By way of present appeal, filed u/s 374 of the Code of Criminal Procedure, 1973, the Appellants have challenged the judgment and order of conviction dated 2nd August, 2008 passed by the learned Additional Sessions Judge, Bhavnagar, (FTC No. 3) Camp at Botad in Sessions Case No. 220 of 2003. The said case was registered against the Appellants-original accused Nos. 1 to 3 for the offences punishable under Sections 307, 324, 504 and 114 of the Indian Penal Code and Section 135 of the Bombay Police Act. The Appellant No. 1 is convicted for the offence punishable u/s 307 read with Section 114 of the Indian Penal Code and sentenced to undergo R.I. for seven years and fine of Rs. 500/-, in default of payment of fine, to undergo further S.I. for 15 days. The Appellant No. 1 is also convicted for the offence punishable u/s 504 read with Section 114 of the Indian Penal Code and is sentenced to undergo S.I. of six months and fine of Rs. 200/-, in default of payment of fine to undergo further S.I. for 10 days. The Appellant No. 1 is convicted for the offence u/s 135 of the Bombay Police Act read with Section 114 of the Indian Penal Code and is sentenced to undergo S.I. for one month and fine of Rs. 100/-, in default of payment of fine, to undergo further S.I. for 5 days. The Appellant Nos. 2 and 3 are also convicted for the offence punishable u/s 324 read with Section 114 of the Indian Penal Code and they are sentenced to undergo R.I. for one year and fine of Rs. 500/-, in default of payment of fine to undergo further S.I. for 10 days. They are also convicted u/s 504 read with Section 114 of the Indian Penal Code and sentenced to undergo S.I. for six months and fine of Rs. 500/-, in default of payment of fine, to undergo further S.I. for 15 days. The Appellant Nos. 2 and 3 are also convicted for the offence u/s 135 of the Bombay Police Act read with Section 114 of the Indian Penal Code and they are sentenced to undergo S.I. for one month and fine of Rs. 100/-, in default of payment of fine, to undergo further S.I. for 5 days.

According to the prosecution case, on 31.8.2003 at 16:00 hours, complainant and witnesses were playing cricket on the back side of the society in the open place. At that time, accused came and told them not to play cricket in the ground because they wanted to play cricket there. Thereafter, after some time, accused No. 1 came with knife, accused No. 2 with bat and accused No. 3 with stump came and abused complainant. The Appellants-accused Nos. 2 and 3 assaulted the complainant with bat and stump on his backside and Appellant-accused No. 1 assaulted the complainant knife blow on left side of the stomach, as a result of which, complainant was injured severely. Therefore, a complaint to the said effect was lodged with Botad Police Station.

Thereafter, investigation was carried out and statements of several witnesses were recorded. During the course of investigation, accused persons were arrested and, ultimately, charge-sheet came to be filed against them in the Court of learned Judicial Magistrate First Class, Botad.

Thereafter, charge at Exhibit 07 to 09 came to be framed and explained to the accused persons, to which the accused persons not pleaded guilty and claimed to be tried.

In order to bring home the charges against the accused persons, prosecution has examined several witnesses and also produced documentary evidence.

Thereafter, after filing closing pursis by the prosecution, further statements of accused persons u/s 313 of the Code of Criminal Procedure, 1973 were recorded. The accused persons have denied the case of the prosecution and submitted that a false case is filed against them.

After hearing both the sides, the learned Additional Sessions Judge, Bhavnagar, (FTC No. 3) Camp at Botad, by his judgment and order of conviction dated 2nd August, 2008 passed in Sessions Case No. 220 of 2003, convicted the accused persons as stated above.

Being aggrieved by and dissatisfied with the said judgment and order of conviction dated 2nd August, 2008 passed by the learned Additional Sessions Judge, Bhavnagar, (FTC No. 3) Camp at Botad, the Appellants have preferred the present appeal before this Hon''ble Court.

I have heard Mr. R.M. Agrawal, learned advocate for Appellants and Mr. Tolia and Mr. H.L. Jani, learned Additional Public Prosecutor appearing on behalf of the Respondent-State.

The judgment and order of conviction is challenged on various grounds as mentioned in the memo of appeal. While arguing the present case, Mr. Nitin Amin, learned advocate for Appellants contended that in this case originally charge was framed against all the accused persons for the offences punishable under Sections 307 and 504 of Indian Penal Code read with Section 135 of the Bombay Police Act. Mr. Amin read the contents of the complaint and vehemently argued that from the contents of the complaint Ex.35, prosecution has failed to disclose the names of assailants. He has read oral evidence of P.W. No. 1 - Sirajbhai Bavudinbhai and contended that even from the oral evidence of the complainant the prosecution has failed to prove the case beyond reasonable doubt. Mr. Amin also read the contents of the complaint and contended that sufficient contradiction is established and proved on record. Mr. Amin also read the contents of Ex.40 which is recorded as dying declaration and contended that so far as medical papers and medical certificate are concerned, they do not prove that as per prosecution case injured has received injury from the alleged weapon. Mr. Amin contended that on perusal of the panchnama of place of offence Ex.83 it creates some doubt. Mr. Amin vehemently argued that from the oral evidence of Dr. Jayantibhai K. Parmar - P.W. No. 3 Ex.41 and Dr. Bharat H. Chavda - P.W. No. 5 Ex.55, the prosecution has miserably failed to prove the case through oral evidence of these medical experts. Mr. Amin read the judgment and order of the learned Judge and vehemently argued that so far as identification of the present Appellants is concerned, it is also not proved. He contended that after 17 days names of the assailant were disclosed. He contended that looking to the evidence of the prosecution case nothing is proved beyond reasonable doubt against present Appellant Nos. 2 and 3. He contended that from evidence of prosecution presence of Appellant Nos. 2 and 3 can be considered but no role is established nor any overt act is attributed to them. He further contended that from the oral as well as documentary evidence, prosecution has failed to prove the case against Appellant Nos. 2 and 3. Mr. Amin contended that learned Judge has wrongly convicted Appellant Nos. 2 and 3. He contended that when the overt act and role of the present Appellant Nos. 2 and 3 is not proved, then, conviction and sentences imposed by the learned Judge on the Appellant Nos. 2 and 3 is required to be set aside. Mr. Amin contended that the present Appellant No. 1, is a young man and is in jail since 3 years 2 months and 15 days. He read the contents of the jail record and prayed that looking to the age of the present Appellant No. 1 and the cause of the incident and period passed in jail is required to be considered as undergone period. He has contended that the learned Judge has not considered the evidence produced before him in proper manner. He has further contended that looking to the facts of the case as well as evidence produced on record, judgment and order of conviction passed by the learned learned Additional Sessions Judge, Bhavnagar, (FTC No. 3) Camp at Botad, is illegal, unjust and improper and is required to be quashed and set aside. Mr. Amin contended that he is not arguing this case on merits and simply he has prayed for reduction of sentence of Appellant No. 1.

Heard Mr. H.L. Jani, learned APP for the Respondent - State. Mr. Jani read medical evidence to prove charge and contended that looking to the injury of the injured persons, the prosecution has proved the case beyond reasonable doubt. Mr. Jani contended that the conviction of Appellant No. 1 for the offence punishable u/s 307 is proper as per provisions of law. He read the contents of the complaint and oral evidence of the other witnesses and also identification of the present Appellants and contended that the case is proved beyond reasonable doubt. He has read report for muddamal recovered by Investigating Agency and also gone through oral as well as documentary evidence and medical evidence of both the doctors and contended that from the cross-examination of the medical experts Appellants have failed to prove their case. He has also read Section 114 of the Indian Penal Code and vehemently argued that presence of Appellant Nos. 2 and 3 is proved, no doubt the overt act is not proved yet presumption can be drawn against the Appellant Nos. 2 and 3 and it can be considered common intention of both present Appellant Nos. 2 and 3.

Heard Mr. Tolia, learned advocate with Mr. H.L. Jani, learned APP for the Respondent. Mr. Tolia read judgment and order of the learned Judge and contended that looking to the evidence of the prosecution, the role of the Appellants is proved beyond reasonable doubt and judgment and order passed by the learned Judge is proper and does not call for interference and present Appeal is required to be dismissed.

I have gone through papers produced before me as well as the judgment and order passed by the learned Judge. I have also perused the oral as well as documentary evidence led before the trial Court and also considered the submissions made by learned Counsel.

In the above view of the matter, it appears from the papers that names of the present Appellants are disclosed after 17 days and even during the treatment also names of the assailant were not disclosed. It is also true that so far as identification of Appellants-accused is concerned, I find from the oral evidence of the injured persons, presence and role of the Appellant No. 1 is proved beyond reasonable doubt. So far as Appellant Nos. 2 and 3 are concerned, I have perused the oral as well as documentary evidence and I am of the opinion that learned Judge has committed grave error of law in convicting present Appellant Nos. 2 and 3.

For the foregoing reasons, this Appeal is partly allowed. The judgment and order of conviction and sentence dated 2.8.2008 passed by learned Additional Sessions Judge, Bhavnagar, (FTC No. 3) Camp at Botad in Sessions Case No. 220 of 2003 is hereby modified to the extent that sentence imposed on the Appellant No. 1 is reduced from 7 years to 5 years. Bail bond, if any, shall stands cancelled. So far as judgment and order qua Appellant Nos. 2 and 3 are concerned i.e. conviction and sentence awarded by the learned Judge is set aside and fine if paid be refunded to them. Since judgment and order for Appellant Nos. 2 and 3 is set aside their bail bond stands discharged. Rest of the judgment and order passed by the learned Additional Sessions Judge is confirmed. R & P to be sent back to the trial Court immediately. As the main Appeal is disposed of the Criminal Revision Application also stands disposed of.