Laxman Virji vs State of Gujarat

K.S. Jhaveri, J.—Criminal Appeal No. 586 of 1994, by the original accused No. 1 is directed against the judgement and order of

conviction dated 12.05.1994 passed by the Additional Sessions Judge, Gondal in Sessions Case No. 18 of 1987, whereby the appellant -

accused No. 1 has been convicted of the charges leveled against him u/s 307 r/w Section 34 of the Indian Penal Code.

1.1 Criminal Appeal No. 512 of 1994, by the original accused Nos. 3 to 5 is directed against the judgement and order of conviction dated

12.05.1994 passed by the Additional Sessions Judge, Gondal in Sessions Case No. 18 of 1987, whereby the appellants - accused No. 3 to 5

have been convicted of the charges leveled against them u/s 307 of the Indian Penal Code and Section 135 of B.P. Act.

1.2 The original accused No. 1 was ordered to undergo rigorous imprisonment for two years and six months and fine of Rs. 500/- in default to

undergo rigorous imprisonment for four months for offence u/s 307 r/w Section 34 of Indian Penal Code. The original accused Nos. 3 to 5 were

ordered to undergo rigorous imprisonment for five years and fine of Rs. 500/- in default to undergo rigorous imprisonment for four months for

offence u/s 307 of Indian Penal Code. The original accused were also imposed fine of Rs. 100/- in default to undergo simple imprisonment for

seven days for offence u/s 135 of B.P. Act.

It is the case of the prosecution that on 16.10.1986 at about 5.00 pm the complainant and one Babubhai Kanabhai were on their way on a

motorcycle to the complainant''s Vadi situated in the sim of the village Devla. When they reached Paneliya bridge they saw the accused standing on

the road. Three motorcycles were also parked on the road. The accused persons started the motorcycles and chased the complainant who was

speeding ahead after seeing the accused. The appellants fired gun shots on the accused. The shot injured the chest and arm pit of the witness Babu

Kana who was riding pillion. He therefore fell down on the road from the running motorcycle which resulted into abrasions on his shoulder, hands

and leg. The injured witness was taken to primary health centre and was treated.

2.1 Thereafter on the strength of the FIR, the offence was registered against the present appellants. Investigation was carried out and chargesheet

was submitted against the appellants. Thereafter, as the case was exclusively triable by the Sessions Court, the same was committed to the

Sessions Court.

2.2 The trial was initiated against the appellant and during the course of trial the prosecution examined the following witnesses as oral evidences:

Kumbha Kana Ex. 31

Vibha Giga Ex. 37

Radhav Mulji Ex. 39

Sajubha Mukhmasinh Ex. 40

Nathubha Dajibhai Ex. 41

Raidhan Harsur Ex. 43

Damji Palabhai Ex. 45

Pravinsinh Harisinh Ex. 46

Baba Kana Ex. 50

Dr. Haresh Narsibhai Ex. 51

Naran Bhana Ex. 53

Nanani Devnan Ex. 56

Lakhubhai Kanabhai Ex. 57

Kana Sava Ex. 58

Dr. JanmShankar Ambashankar Ex. 61

Mastram Odhavdas Ex. 66

Jivanlal Bhanji Ex. 69

M.N. Pathan Ex. 73

Manubha Jesingh Ex. 74

Takhatsinh Navalsinh Ex. 77

2.3 The prosecution also examined the following documents as documentary evidencesr:

Panchnama Ex. 34

Panchnama Ex. 35

Panchnama Ex. 36

Panchnama Ex. 38

Panchnama Ex. 42

Panchnama Ex. 44

Certificate Ex. 52

Copy of register entry Ex. 55

Panchnama Ex. 59

Panchnama Ex. 60

Transfer form Ex. 62

Medical Certificate Ex. 63

Case Papers Ex. 64

Copy of extract of station diary Ex. 67

Copy of extract of station diary Ex. 68

True copy of entry No. 18 Ex. 70

Copy of extract of station diary Ex. 71

Copy of extract of station diary Ex. 72

Copy of extract of station diary Ex. 75

Copy of extract of station diary Ex. 76

Letter by Gondal Police Station Ex. 78

Panchnama Ex. 79

Panchnama Ex. 80

Forwarding Letter Ex. 81-82

Report Ex. 83 -86

Extract of offences of accused Ex. 87

FIR - Complaint Ex. 97

2.4 At the end of trial, after recording the statement of the accused, and hearing arguments on behalf of prosecution and the defence, the learned

Sessions Judge convicted the appellants of the charges leveled against them by judgement and order dated 12.05.1994.

2.5 Being aggrieved by and dissatisfied with the aforesaid judgement and order passed by the Sessions Court the appellants have preferred the

present appeals.

Mr. K.B. Anandjiwala, learned Senior Counsel appearing for the appellants has taken this court to the evidence of the witnesses by which their

presence is proved. He has drawn the attention of this court to the medical evidence of Dr. Janmashankar Ambashankar P.W 15 Ex. 61 and

submitted that the injuries were not fatal and therefore the conviction of the appellants u/s 307 is bad in law. The injuries were stated to be

superficial in nature. He has submitted that the trial court has wrongly convicted the accused u/s 307 of Indian Penal Code.

3.1 Mr. Anandjiwala has submitted that the evidence of the complainant and the witnesses is doubtful and does not inspire any confidence. He has

submitted that the FIR was given at a belated stage and was cooked up and it is a well designed attempt to implicate all the accused in the FIR.

3.1 In the alternative, Mr. Anandjiwala has submitted that even if the allegations against the accused are believed, the sentence awarded by the

court below is on the higher side and the same may be reduced. He has submitted that the alleged incident has taken place in the year 1986.

Almost 22 years have passed. He has submitted that this court may take a sympathetic view of the matter and reduced the sentence.

Ms. Manisha Lavkumar Shah, learned APP has supported the order of the trial court and has submitted that the trial court has gone into the

evidence in detail and come to the conclusion that the appellants are guilty of the offence so convicted of. She has submitted that considering the

deadly weapon used by the appellants, the trial court has rightly convicted the appellants. She has also submitted that the sentence imposed upon

the appellants is just and proper and does not deserve to be reduced.

I have gone through the judgement and order passed by the court below. I have also perused the oral as well as documentary evidence led by

the trial court and also considered the submissions made by learned Advocate for both the sides.

The trial court has examined the evidences on record in detail and come to the conclusion that the appellants are guilty of the offences u/s 307 of

Indian Penal Code. The trial court has considered the medical evidence and the panchnamas to come to the conclusion that the injured complainant

sustained seven injuries which were possible due to the fire arm. The injured complainant was hospitalized for around 18 days.

Dr. Janma Shankar Joshi has been examined at Ex. 61. He has described the seven injuries which were sustained by the injured complainant.

Considering the nature of the wounds he has opined that the said wounds could have been sustained by the weapon in question. He has also

opined that the wound at times may or on some occasions may not serious in nature. As regards the injured witness Babu Kana is concerned, the

doctor has stated that he had sustained about eight injuries which were simple in nature and could also have been possible by way of stick blows.

He was operated upon for removing the blood clots. On an overall scrutiny the injuries were not serious or fatal.

As a result of hearing and perusal of records, I am of the view that the conviction of the appellants u/s 307 is erroneous. Considering the nature

of wounds and the hospitalization required under the said circumstances, no case for offence u/s 307 is made out. The trial court ought to have

convicted the accused u/s 324 of Indian Penal Code. Ms. M.L .Shah, learned APP is not in a position to controvert the same.

8.1 Moreover, considering the nature of offence and passage of time, more particular 22 years; also looking to the financial and social status of the

appellants with the age of the appellants in particular and other governing factors coupled with the conviction u/s 324 of Indian Penal Code, this

court thinks it fit to reduce the sentence awarded to the appellant. In the above view of the matter, I am of the considered opinion that interest of

justice shall be met by reducing the sentence imposed upon the appellants to the sentence they have already undergone.

In the premises aforesaid, the appellants-original accused Nos. 1, 3, 4 & 5 are ordered to be convicted u/s 324 of Indian Penal Code instead of

Section 307 of Indian Penal Code. The sentence imposed upon the appellants-accused is reduced to the term they have already undergone as the

same meets the ends of justice. The judgement and order dated 12.05.1994 passed by the Additional Sessions Judge, Gondal in Sessions Case

No. 18/1987 is modified accordingly. The rest of the order shall remain the same. Bail bonds, if any shall stand cancelled. In view of the aforesaid

order, Criminal Appeals are partly allowed qua the present appellants-original accused Nos. 1, 3, 4 & 5. Direct service is permitted.