CR.A/617/1986 1/6 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 617 of 1986 With CRIMINAL APPEAL No. 971 of 1986 To CRIMINAL APPEAL No. 972 of 1986 For Approval and Signature: HONOURABLE MR.JUSTICE BHAGWATI PRASAD HONOURABLE MR.JUSTICE S.R.BRAHMBHATT ========================================================= 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 ? ========================================================= KOLI DHARAMSHI BHIMA - Appellant Versus STATE OF GUJARAT – Respondents ========================================================= Appearance : MR AD SHAH for Appellant MR PD BHATE ADDL PUBLIC PROSECUTOR for Respondent ========================================================= CORAM : HONOURABLE MR.JUSTICE BHAGWATI PRASAD and HONOURABLE MR.JUSTICE S.R.BRAHMBHATT Date : 27/08/2008 CR.A/617/1986 2/6 JUDGMENT COMMON ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE BHAGWATI PRASAD) 1. These appeals arise from the judgment & order passed by the Learned Addl. Sessions Judge, Bhavnagar dated 25/4/1986 in Sessions Case No. 149 of 1985, whereunder, the learned Judge has convicted original accused no.1 Koli Dharamshi Bhima under section 304(2) and passed sentence of RI for 2 years and fine of Rs.500/-, in default RI for 3 months. Learned trial Judge acquitted original accused No.2 Koli Bhima Ravjibhai. Against the same order of learned Sessions Judge, Accused No.1 Koli, Dharamshi Bhima preferred present appeal. The State also preferred Criminal Appeal No. 971 of 1986 for enhancement of sentence against Koli Dharamshi Bhima and the State also preferred Criminal Appeal No. 972 of 1986 against Koli Dharamshi Bhima and Koli Bhima Ravjibhai against their acquittal. 2. The prosecution case in brief is that on 12/8/1985 at around 9.30 to 10.00 hrs in the morning the complainant Vajubha Ramsing was at his house at village Mota Khorda. There one boy (son of village barber) came and told him that near the shop Gor, Mahavirsinh and Dharamshi Bhima are quarreling. After hearing this he went to the shop of Gor and there he met one CR.A/617/1986 3/6 JUDGMENT Pratapsinh Mangalsinh, who was carrying Mahavirsinh with him. Mahavirsinh was injured and blood was oozing out of his body. He asked Mahavirsinh what has happened to him. Mahavirsinh could not reply and he asked Prabhatsinh and he has told to the complainant that Vajubha Ramsinh that Dharamshi Bhima has given knife blow to Mahavirsinh and Mahavirsinh was caught by Bhima Ravji. According to Prabhatsinh he had seen the incident and he tried to save Mahavirsinh. At that time the accused had ran away. Prabhatsinh also told to the complainant hat other persons came there and Dharamshi Bhima and Bhima Ravji ran away. Complainant and Prabhatsinh,Karansinh and other persons took Mahavirsinh to Bhavnagar Governmental hospital in a bus where doctor examined Mahavirsinh. The doctor declared that Mahavirsinh as dead. The dispute between the deceased and Dharamsinh Bhima was there. One police case was going on between them and therefore Dharamsinh Bhima and Bhima Ravji had given knife blow to Mahavirsinh. The complaint was lodged in police station. Therefore police took statements of different persons, panchnama was also carried out, charge sheet was filed under section 302 of Indian Penal Code before learned JMFC at Ghogha and on 5/12/1985 case was committed to Sessions Court and the trial begun. CR.A/617/1986 4/6 JUDGMENT 3. We have heard learned Addl. Public Prosecutor Mr. Bhate for the State and learned advocate Mr. A.D. Shah for the accused. We have also gone through the records & proceedings and the documentary evidences. We have heard in detailed the submissions on behalf of the State as well as the arguments advanced on behalf of the accused. Learned APP has submitted that the prosecution has examined PW-1 at exhibit-6. Dr. Bharatkumar Jethalal Somani who says in his deposition that there were 7 external injuries and two internal injuries. Postmortem was carried out and he opined that injuries are possible with the muddamal knife. In his cross examination he said that injury no. 1 to 5 are simple injuries and injuries no. 7 and 8 are also simple and death may not be possible. Only injury no.6 is serious in which death may be possible he produced postmortem report exhibit- 7. 4. Prosecution has also examined PW-3, exhibit-10, Vajubha Ramsinh, who is the complainant. He lodged the complaint which is at exhibit-11. He says in his deposition that Prabhatsinh told him that Dharamshi Bhima had given knife blow to Mahavirsinh. Prosecution has also examined PW-4, exhibit-12, Prabhatsinh Mangalsinh who is an eye witness. According to this witness accused no.1 gave knife blow to the deceased and accused no.2 caught hold of the deceased. Prosecution has CR.A/617/1986 5/6 JUDGMENT also examined PW5 exhibit-20, Jayantilal Jayshankar. This witness having shop and he sell soda water, cigarette and pan. 5. Prosecution has also examined PW-6, exhibit-21 Shantilal Nanjibhai who is an eyewitness aged 10 years and is studying. According to this witness he went to flour factory for flouring/grinding purpose. The prosecution has also examined panch witness vide exhibit – 24, 26, 28, 30, 32 and PW-14 exhibit-33 is Sabibuddin Mohommad Miya, Deputy Superintendent of Police PW-15, exhibit- 35 Balvantray Laxmiram Pandya, Head Constable and PW-16, Exhibit-38 Girdharsinh Ramsing Parmar, Police Sub Inspector and investigating officer. 6. Considering the medical evidence as per the doctor, exhibit-6, Dr. Bharatkumar Jethalal Somani, only one injury no.6 was grave and therefore, Learned trial Judge has convicted accused no.1 under section 304(2) and imposed R.I. For 2 years and fine of Rs.500/-, in default RI for 3 months. 7. Considering the evidence we find that sentence passed by the learned Sessions Judge does not require interference and therefore, Criminal Appeal No. 971 of 1986 appeal for enhancement for sentence is dismissed and Criminal Appeal No. 972 of 1986, appeal against acquittal is CR.A/617/1986 6/6 JUDGMENT also dismissed. Appeal filed by the accused Koli Dharamshi Bhima being Criminal Appeal No. 617 of 1986 in which sentence is modified, instead of RI for 2 years and fine of Rs.500/-, amount of fine is increased from Rs.500/- to Rs.5000/- and in default, RI for 3 months and with this modification of enhancement in fine, the Criminal Appeal No. 617 of 1986 is partly allowed. (BHAGWATI PRASAD, J.) (S.R.BRAHMBHATT, J.) pallav