CR.A/831/2005 1/16 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 831 of 2005 For Approval and Signature: HONOURABLE MR.JUSTICE A.L.DAVE HONOURABLE MR.JUSTICE J.C.UPADHYAYA ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================================= BHAVESHKUMAR BHANUSHANKER PANDYA & 1 - Appellants Versus THE STATE OF GUJARAT - Respondent ========================================================= Appearance : MR KB ANANDJIWALA for Appellants MR UR BHATT, ADDL.PUBLIC PROSECUTOR for Respondent-State ========================================================= CORAM : HONOURABLE MR.JUSTICE A.L.DAVE and HONOURABLE MR.JUSTICE J.C.UPADHYAYA Date : 03/12/2008 ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE A.L.DAVE) CR.A/831/2005 2/16 JUDGMENT The appellants challenge the judgment and order rendered by the 9th Fast Track Court at Rajpipala, in Sessions Case No.33/2003, dated 16th April, 2005, convicting them for the offences punishable under Section 307 r.w. Section 114 of the Indian Penal Code and sentencing both of them to undergo R.I for a period of ten years and to pay a fine of Rs.1,000/-, in default, to undergo S.I for three months. 2. The allegations against the appellants were that on 27th August, 2002, around 9.30 p.m., they assaulted Atulkumar Govindbhai Patel with a knife and a pipe, when the injured went to them calling for repayment of Rs.6,000/- lent to appellant No.1 by the injured, about three months prior to the incident. It is the case of the prosecution that when injured Atulkumar went there and demanded repayment of money, appellant No.1 became angry and inflicted two knife blows in the abdominal part of the injured. At that time, appellant No.2 also came and inflicted a pipe blow on the back of the injured. Jayeshbhai, brother of injured Atulkumar, was in the vicinity. He, therefore, came rushing to the place, tried to CR.A/831/2005 3/16 JUDGMENT prevent appellant No.2 from giving further pipe blows and took away injured Atulkumar to the Civil Hospital at Rajpipala, where he came to be treated. On the next day, i.e. 28.8.2002, injured Atulkumar was referred to SSG Hospital at Vadodara for treatment. He was treated there as an indoor patient for about one-and-a-half months and had to undergo two surgeries. The police was informed by Jayeshbhai by lodging FIR, on the basis of which, offence was registered and investigated. The police, having found sufficient evidence, filed charge sheet in the Court of learned J.M.F.C., Rajpipala, who, in turn, committed the case to the Court of Sessions, as the offence was triable by the Court of Sessions exclusively, and Sessions Case No. 33/2003 came to be registered. 3. Charge was framed against the appellants at Exh.2 for the offences punishable under Section 307 r.w. Section 114 of the Indian Penal Code and Section 135 of the Bombay Police Act, which came to be altered later on. The accused persons pleaded not guilty to the charge and claimed to be tried. CR.A/831/2005 4/16 JUDGMENT 3.1 On the basis of the evidence led by the prosecution, the trial Court came to the conclusion that the prosecution was successful in establishing the charge of offence punishable under Section 307 r.w.Section 114 IPC and sentenced both the accused- appellants to undergo R.I for ten years and to pay a fine of Rs.1,000/-, in default to undergo S.I for three months. Hence, this appeal. 4. We have heard learned advocate Mr.K.B.Anandjiwala for the appellants, and learned A.P.P. Mr.U.R.Bhatt for the respondent-State. 5. Learned advocate Mr.Anandjiwala, appearing for the appellants, submitted that the trial Court has committed an error in appreciating the evidence and convicting the appellants for an offence punishable under Section 307 r.w.Section 114 IPC. He submitted that if the medical evidence is seen, it is clear that the injuries were not certified to be sufficient in the ordinary course of nature to cause death. The only certification was that the injuries were serious CR.A/831/2005 5/16 JUDGMENT and, therefore, conviction under Section 307 IPC could not have been recorded. He submitted further that there is total absence of any injury by hard and blunt substance. Therefore, there is no medical evidence to support the allegation against appellant No.2 that he inflicted pipe blow on the back of the injured. The learned advocate further submitted that although there is evidence to show that the injured was in hospital for one-and-a-half months and that two surgeries were performed, there are no details to show the nature of injury or nature of surgery performed. Commenting on the nature of investigation, the learned advocate for the appellant submitted that the statement of the injured came to be recorded on 1.10.2002, i.e., after about one month & two days of the incident, although the injured was conscious even at the time when he was brought to SSG hospital at Vadodara. He submitted that the prosecution has failed to examine the Doctor, who treated the injured at the Civil Hospital, Rajpipala. 5.1 Learned advocate Mr.Anandjiwala submitted that though right of private defence is not CR.A/831/2005 6/16 JUDGMENT specifically suggested during the cross-examination, it was argued before the trial Court in the light of the fact that the injured went to the house of the appellants and started quarrel. It has also come on record that the injured was in a drunken condition and a sample of his blood was, therefore, drawn at Rajpipala and an offence under the Bombay Prohibition Act came to be registered against him. Mr.Anandjiwala also submitted that the incident had occurred suddenly and the knife, which is allegedly used, is a small kitchen knife, the size of its blade was just 5 x 1.5 cm. The learned advocate for the appellants, therefore, submitted that appellant No.1 can, at the most, be convicted for the offence punishable under Section 324 or Section 308 IPC, if his involvement is accepted by the Court. Mr.Anandjiwala, therefore, submitted that the appeal may be allowed and the conviction may be set aside. 6. Learned A.P.P. Mr.U.R.Bhatt submitted that there is evidence of injured Atulkumar and his brother Jayeshbhai, who is an eye witness to the incident. Both of them have come out with a consistent story CR.A/831/2005 7/16 JUDGMENT that appellant No.1 inflicted two knife blows to the injured and appellant No.2 inflicted a pipe blow on the back of the injured. It is also a matter of evidence that injured Atulkumar was required to be hospitalised for one-and-a-half months and two surgeries were performed. The injuries, therefore, can be presumed to be such which were sufficient in the ordinary course of nature to cause death and, therefore, the trial Court was justified in recording the conviction of the appellants for the offence punishable under Section 307 IPC. The learned A.P.P. for the respondent-State, ultimately submitted that the appeal may, therefore, be dismissed. 7. We have examined the record and proceedings of the case in the light of the submissions made by both the sides. 8. The prosecution case depends, mainly, on three depositions and the medical certificate issued by the Doctor. The depositions are of injured Atulkumar (Exh.22), eye witness-first informant Jayeshbhai (Exh.9) and Dr.Uday Hriday Prakash (Exh.45). CR.A/831/2005 8/16 JUDGMENT 8.1 If the evidence of Dr.Uday Hriday Prakash (Exh.45) is seen, it is found that he had examined the injured on 28.8.2002. When the injured was brought to him at SSG Hospital, Vadodara, the injured was in a conscious state and he gave a history that he was assaulted upon by an unknown person with a knife. The Doctor then states that the injuries were of serious nature, the injured was required to be hospitalised for one-and-a-half months and two surgeries were performed. Remarkably, the history given to the Doctor by the injured refers to only one assault. There is no reference to any assault by accused No.2. The medical evidence is also significantly silent about the presence of any injury by a hard and blunt substance on the back of the injured. It transpires from the deposition by Dr.Prakash that the injury on the right side of the abdomen was superficial and the injury on the left side of the abdomen was 4 cm deep. But, he has admitted during his cross-examination that neither of the injuries had caused any damage to any vital organ of the body. CR.A/831/2005 9/16 JUDGMENT 8.2 If the deposition of injured Atulkumar (Exh.22) is seen, he states that he had gone to the house of the accused persons to demand repayment of Rs.6,000/-, which he had lent to accused No.1, in response to which, accused No.1 inflicted knife blows and accused No.2, who was standing nearby, came with a pipe and inflicted a blow on his back. 8.3 During the cross-examination, the witness has admitted that an offence under the Bombay Prohibition Act for consuming liquor has been registered against him. It has also come on record upon his own admission during the cross-examination that earlier also he had been prosecuted for causing harassment to the mother of the accused and on another occasion to Shivabhai. 8.4 If the deposition of first informant Jayeshbhai Patel (Exh.9) is seen, he, in his examination-in-chief, reiterates the same story as deposed by Atulkumar. But, during the cross- examination, he also has to admit about his CR.A/831/2005 10/16 JUDGMENT antecedents. The FIR is at Exh.10. In the FIR, we find that there is no reference to lending of Rs.6,000/- by Atulkumar to accused No.1 and Atulkumar going to the house of the accused for demanding repayment of the same. 9. What emerges from the above pieces of evidence is that it is the injured, who goes to the house of the accused in a drunken condition. He claims to have gone there for demanding repayment of money, which seems to be an afterthought because that version comes for the first time in his deposition. This has to be considered in the light of the fact that the accused side has already lodged prosecution against Atulkumar for harassment to the mother of the accused a few days back of the incident. This aspect will have again to be considered in the backdrop of the characteristic antecedents of injured Atulbhai. 9.1 Both, Atulkumar and Jayeshbhai alleged that accused-appellant No.1 inflicted two knife blows and accused-appellant No.2 inflicted a pipe blow on the back of the injured. We find that there is no CR.A/831/2005 11/16 JUDGMENT corresponding injury found by the Doctor and, therefore, involvement of accused-appellant No.2 becomes doubtful, more so, when the injured, in his history given to the Doctor, involves only one unknown person of having caused knife blows. He does not speak of any injury being caused to him by pipe. Barring these two versions, there is nothing on record to implicate accused-appellant No.2- Dharmeshkumar Bhanushanker Pandya. The trial Court was, therefore, not justified in convicting him for the offence. 9. So far as accused-appellant No.1 is concerned, his involvement is deposed to by both the eye witnesses, which gets corroborated by medical evidence. He is also named in the FIR which is given soon after the incident and, therefore, his involvement in the occurrence has to be accepted. 10. Now, we come to the question, what offence would be constituted and for which he could have been convicted. In this regard, if the evidence of Dr.Prakash (Exh.45) is seen, it is clear that he does CR.A/831/2005 12/16 JUDGMENT not certify the injuries to be sufficient in the ordinary course of nature to cause death, although he says that the injuries were of serious nature. Unless the injuries are certified to be sufficient in the ordinary course of nature to cause death, requirements of murder would not be satisfied and if that is not satisfied, there is no question of satisfying the requirements of attempt to murder. The resultant effect is that the conviction of the appellant No.1 for the offence punishable under Section 307 IPC cannot be said to be well-founded and would call for interference in exercise of appellate jurisdiction. 10.1 Then the next question would be, if the appellant No.1 could not have been convicted for an offence under Section 307 IPC, as the said offence is not proved to have been constituted, which offence can be said to have been committed by appellant No.1. In this regard, if the medical evidence is examined, the Doctor says that the injuries were serious, although he says that the injuries were not on vital organ of the body. But, the fact remains that the CR.A/831/2005 13/16 JUDGMENT injured was required to remain in the hospital for one-and-a-half months and two surgeries were performed on him. It was argued by the learned advocate for the appellant that hospitalisation is brought on record, but, not the fact that the injured was not able to follow his ordinary pursuits for more than 20 days, or was in severe bodily pain. It is not possible to accept this contention for the reason that not only the Doctor says that the injured was hospitalised for one-and-a-half months and two surgeries were performed, but, the injured has deposed that his intestines were perforated and he has to undergo two surgeries. Even on the date of his deposition, he was under treatment and a further surgery was proposed. He states that he is unable to sit for a long time. All these aspects have gone unchallenged in the deposition. There is no reason to doubt the version of the injured if his deposition is read in conjunction with the deposition of the Doctor. We may also record that it has come in the evidence of Investigating Officer Mr.Bhagabhai Ranjitsinh Ganava (Exh.55) that the statement of the injured, though not recorded by him and was recorded CR.A/831/2005 14/16 JUDGMENT by ASI Mr.Kantibhai, could not be recorded earlier because of the physical condition and frequent operations of the injured. All these factors would lead to a conclusion that Clause Eighthly of Section 320 IPC would be attracted. In our opinion, therefore, appellant No.1 can be said to have committed an offence punishable under Section 326 IPC and not under Section 307 IPC. His conviction will have to be altered from one under Section 307 IPC to one under Section 326 IPC. 11. The appellant No.1 came to be arrested on 28.8.2002 and was in jail for about 61 days at that point of time. Thereafter, he came to be released on bail. Again, he was taken in custody on the date of the judgment i.e. 16.4.2005. He has undergone almost three-and-a-half years of imprisonment. In our view, ends of justice would be met if appellant No.1, after alteration of his conviction to one under Section 326 IPC, is sentenced to undergo R.I for the period already undergone by him, without any change in the sentence of fine. CR.A/831/2005 15/16 JUDGMENT 12. The appeal is, therefore, partly allowed. The conviction of appellant No.2 – Dharmeshkumar Bhanushanker Pandya for the offence punishable under Section 307 r.w.Section 114 of the Indian Penal Code awarded by the learned Additional Sessions Judge, 9th Fast Track Court, Bharuch at Rajpipla, on 16th April, 2005, in Sessions Case No.33/2003, is hereby set aside. Fine, if paid, be refunded to him. Bail Bond of appellant No.2 shall stand cancelled. The conviction of appellant No.1 -Bhaveshkumar Bhanushanker Pandya for the offence punishable under Section 307 r.w.Section 114 of the Indian Penal Code awarded by the learned Additional Sessions Judge, 9th Fast Track Court, Bharuch at Rajpipla, on 16th April, 2005, in Sessions Case No.33/2003, is altered to one under Section 326 IPC and is sentenced to the imprisonment already undergone by him. He is also fined with an amount of Rs.1,000/-. The fine paid by him for his conviction under Section 307 r.w.Section 114 IPC shall be adjusted as fine under this offence. CR.A/831/2005 16/16 JUDGMENT Appellant No.1 be released from the prison forthwith, if not required in any other case. [ A.L. Dave,J.] [ J.C.Upadhyaya,J.] (patel)