CR.A/340/2006 1/10 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 340 of 2006 For Approval and Signature: HONOURABLE MR.JUSTICE MD SHAH ========================================================= 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 ? ========================================================= SHABBIRMIYA AAMADMIYA POPATPOTRA - Appellant(s) Versus STATE OF GUJARAT & 1 - Opponent(s) ========================================================= Appearance : MR HR PRAJAPATI for Appellant(s) : 1,MR MR PRAJAPATI for Appellant(s) : 1, MR UR BHATT, APP for Opponent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE MD SHAH Date : 20/08/2008 ORAL JUDGMENT 1. The present appeal has been preferred by the appellant-original accused against the judgment and order of conviction and sentence dated 15.4.2004 passed by the learned Addl.Sessions Judge, Fast Track Court No.6, Jamnagar in Sessions Case No. 93 of 2003, CR.A/340/2006 2/10 JUDGMENT convicting the appellant-accused and sentencing him to undergo rigorous imprisonment of 7 years and to pay a fine of Rs.500/-, in default, to undergo further simple imprisonment of one month; rigorous imprisonment of one year for the offences punishable under Section 307 of IPC; rigorous imprisonment of one year, and fine of Rs.500/-, in default, to undergo further imprisonment of one month for the offence punishable under Section 450 of IPC; rigorous imprisonment of one year and fine of Rs.500/-, in default, to undergo further simple imprisonment of one month for the offence punishable under Section 354 of IPC; and rigorous imprisonment of one year, and fine of Rs.500/-, in default, to undergo further simple imprisonment of one month, respectively. 2. This appeal is preferred by the convict-prisoner through jail. Learned advocate Mr.Prajapati has been appointed to represent the case of the appellant- accused by the Legal Aid Committee. 3. The prosecution case, briefly stated, is as under: 3.1 On 5.6.2003, the appellant - accused entered into the house of one Ashishkumar Patel, residing at Lalpur, District Jamnagar at about 12.30 p.m. with an intention to commit theft when Ashishkumar's wife, Neetaben and her minor daughter were there. When she resisted, the appellant accused tried to modest her and attacked her with knife causing serious injuries CR.A/340/2006 3/10 JUDGMENT on various parts of her body. During this time, she had shouted and the neighbours of Ashishkumar came there and the victim was removed to hospital at Jamnagar. She remained in the hospital till 14.6.2003. She was also operated. The complaint in connection with the aforesaid incident was lodged by the complainant Bhagvanji Gangjibhai Patel, who happens to be the maternal uncle of Ashishbhai, at Lalpur Police Station, being CR No.I-36 of 2003. 3.2 On the basis of the complaint, the investigation has started, the statement of injured person was recorded, Executive Magistrate was called for recording the dying declaration of the injured, the necessary panchanama of scene of offence and recovery of muddamal articles was drawn. The muddamal articles were sent to the Forensic Science Laboratory (FSL) for analysis. During investigation, the appellant – accused was arrested on the same day, i.e. 5.6.2003. At the end of investigation, the charge sheet was filed by the Lalpur Police Station, Jamnagar before the Judicial Magistrate, First Class, Lalpur, Jamnagar on 25.6.2003 and the case was numbered as Criminal Case No.518 of 2003. As the offence is involved under Section 307 of IPC, and as it was not triable by the learned JMFC, he committed the case to the Court of Sessions, Jamnagar. 3.3 The learned Addl.Sessions Judge, Fast Track Court, Jamnagar, framed the charge for the offences punishable under Sections 450, 452, 354, 307 and CR.A/340/2006 4/10 JUDGMENT 506(2) of IPC and Section 135 of the Bombay Police Act. 4. The prosecution has examined the following witnesses: (1) PW-2 – Bhagvanjibhai Gangjibhai Patel – Exh.18 (complainant) (2) PW-4 – Neetaben Ashishkumar Patel – Exh.21 (victim) (3) PW-5 – Shilpaben Rajeshbhai – Exh.23 (4) PW-6 – VaNeetaben Rajesh Faldu – Exh.24 (5) PW-7 –Dharmendrasinh Navalsinh Jadeja – Exh.25. (6) PW-8 – Rasikbhai Gokalbhai – Exh.26. (7) PW-9 – Mukeshkumar Govindbhai – Exh.27 (8) PW-10 –Rajesh Dharamsibhai – Exh.30 (9) PW-11 –Sandip Ravjibhai – Exh.32. (10)PW-16 –Ashokkumar Gangjibhai – Exh.43 (11)PW-17 –Chhaganbhai Muljibhai – Exh.44. (12)PW-18 –Mahendrabhai Gangjibhai – Exh.46. (13)PW-1 – Dr.Kumar Chananjay Sing – Exh.12 (14)PW-19 –Dr.Shailendrasinh Vijayendrasinh – Exh.56. (15)PW-15 –Ahmedhusen Qureshi – Exh.40. (16)PW-3 – Harisbhai Muljibhai Barad – Exh.20. (17)PW-12– Dharmendrasinh Lakhuba Zala – Exh. 34 (PSI) (18)PW-13 -Urmilaba M.Zala – Exh.36 (PSO) (19)PW-14 – Dolargiri Kailashgiri – Exh.39 CR.A/340/2006 5/10 JUDGMENT (Hospital duty Head Constable). (20)PW-20 -Yogendrasinh Dipsinh Jadeja – Exh.63 (POS-Lalpur Police Station) (21)PW-21 -Mahavirsinh N.Sarvaiya – Exh.66 (C.P.I. & Investigating Officer) (22)PW-22- Jashwantsinh R.Vaghela -Exh.67 (PSI & Investigating Officer) (23)PW-23 – Jagubhai Jivabhai Dhandhal – Exh.70 (PSI & Investigating Officer). 5. The prosecution has also relied upon various documents, such as : (1)OPD Case papers of injured Neetaben – Exh.13 (2)Injury Certificate of Neetaben – Exh.14. (3)Copy of Yadi of sending of blood sample of Neetaben – Exh.15 (4)Copy of Yadi of taking blood sample of Neetaben by C.M.O. G.G.Hospital – Exh.16 (5)Papers and X-ray of Neetaben as in-patient – Exh.17. (6)Original complaint of the complainant - Exh.19. (7)Xerox copy of D.D. of Neetaben before Exe.Magi.- Exh.22 (8)Seizure Panchnama of body condition and the clothes worn by Neetaben at the time of incident– Exh.28. (9)Seizure Panchnama of body condition and clothes worn by accused at the time and CR.A/340/2006 6/10 JUDGMENT place of incident -Exh.31. (10)Report of complaint lodged against the accused and note of P.S.O.-Exh.35. (11)Yadi of Head Constable P.I.CTB on duty at the time of bringing Neetaben for treatment -Exh.37. (12)Extract of Station Diary-Exh.38 (13)Xerox copy of panchnama of Identification parade – Exh.41 (14)Xerox copy of yadi of Identification Parade to be done by Exe.Magi., Lalpur.-Exh.42. (15)Discovery Panchnama – Exh.45 (16)Panchnama of scene of offence – Exh.47. (17)Note of Yadi for collecting blood sample of accused – Exh.57 (18)Yadi of sending blood sample of accused – Exh.58 (19)Yadi for certificate of complainant sent to C.P.I., Medical Officer, Lalpur and C.Complaint No.4/03- Exh.59 (20)O.P.D. Case paper of complainant – Exh.60 (21)Injury certificate of Complainant- Exh.61 (22)O.P.D.case paper of Neetaben – Exh.62 (23)Xerox copy of Station Diary – Exh.64 (24)Note of Yadi for making correction in the F.I.R. - Exh.68 (25)Xerox copy of advertisement for not carrying weapons – Exh.69 (26)Copy of forwarding letter to FSL, Junagadh for testing the muddamal – Exh.71 CR.A/340/2006 7/10 JUDGMENT (27)Copy of certificate giving authority – Exh.72 (28)Copy of note of Register forwarding muddamal – Exh.73 (29)Receipt of muddamal by F.S.L. -Exh.74 (30)Forwarding letter of muddamal analysed – Exh.75 (31)Report of FSL analysis – Exh.76 (32)Forwarding letter of doing analysis report of Serology by FSL – Exh.77 (33)Report of Serological Analysis – Exh.78 (34)Panchnama of recovery of wire of Dish cable from Ashishkumar.-Exh.79. 6. At the end of trial, the further statement of the accused under Section 313 of Cr.PC was recorded by the learned Sessions Judge, in which, the accused submitted that he has been falsely involved in the case and false complaint has been filed against him. He denied to be examined himself and also denied to examine any witness on behalf of the defence. 7. After hearing learned APP and learned advocate for the defence, the learned Addl.Sessions Judge, convicted the present appellant-accused and awarded him the punishment as stated in paragraph 1 of this judgment. This appeal has been filed against the aforesaid judgment and order. 8. I have heard learned advocate Mr.Prajapati appearing for the appellant and learned APP CR.A/340/2006 8/10 JUDGMENT Mr.K.P.Raval for the State at length. Mr.Prajapati took this Court through the oral evidence as well as documentary evidence and the judgment and order passed by the trial Court. 9. It is submitted by learned advocate Mr.Prajapati that in FIR, the name of the accused was not given, which clearly indicates that subsequently, as an afterthought, the name of the accused has been given. The trial Court has not considered the same and committed an error and convicted the appellant accused. It is also submitted by him that there are major contradictions in the evidence of the witnesses as well as with the police statement which are also fatal to the prosecution case. In spite of that, the learned trial Judge has not considered the same and grossly erred in convicting the appellant-accused. 10. As against that, learned APP Mr.Raval for the State, has submitted that the judgment and order passed by the learned trial Judge is legal and proper. The evidence of Neetaben is totally corroborated by the evidence of Doctor and therefore, the trial Court has rightly appreciated the evidence of Neetaben and the Doctor and has rightly convicted the appellant accused and hence, the appeal deserves to be dismissed. 11. This Court has gone through the evidence of injured witness Neetaben (PW-4) wherein she has CR.A/340/2006 9/10 JUDGMENT categorically stated the manner in which the incident took place and when she resisted, the accused tried to rape her and as she shouted, the accused inflicted various knife blows on her parts of body, as a result of which, she sustained several injuries on abdomen, neck and on chest. As per the evidence of Dr. Kumar Dhananjay Sing – Exh.12, the evidence of injured Neetaben is totally corroborated and as per his opinion, the injuries sustained by Neetaben were quite serious and if immediate treatment was not provided, then they were sufficient to cause death in natural course. She was also operated. The knife was also recovered at the instance of the accused and the discovery panchnama was also prepared during the investigation by the Investigating Officer in presence of panchas. The knife stained with blood recovered from the accused was sent to FSL and the Blood Group found on the knife was “B” which is the blood group of injured Neetaben. As per FSL report, the clothes and the chappals recovered from the accused were blood stained, and the Blood Group was matching with that of injured Neetaben, which shows that the accused has committed the crime. It is also pertinent to note that there is no enmity between the accused and the injured Neetaben, her husband or with any member in the family. So, there is no reason to falsely involve the accused in committing the crime. The evidence of injured Neetaben is found to be totally trustworthy and inspires confidence and it totally corroborates with the evidence of the medical evidence as well as the FSL report and hence, the CR.A/340/2006 10/10 JUDGMENT trial Court has rightly convicted the appellant accused and there is no reason to interfere with the findings arrived at by the learned trial Judge. Hence, the appeal deserves to be dismissed and it is hereby dismissed. Bail bond, if any, shall stand cancelled. 12. At this stage, learned advocate Mr.Prajapati for the appellant-accused prays that the sentence imposed by the trial Court may be reduced. But, taking into consideration the serious injuries sustained by the injured victim, adequate sentence has been awarded by the trial Court. So, there is no reason to accept the prayer made by Mr.Prajapati. (M.D.Shah, J.) Sreeram.