CR.A/447/2002 1/12 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 447 of 2002 For Approval and Signature: HONOURABLE MR.JUSTICE R.P.DHOLAKIA : Sd/- HONOURABLE MR.JUSTICE KS JHAVERI : Sd/- ======================================================= 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 ? ======================================================= KANTIBHAI BHEMAHAI PARMAR - Appellant(s) Versus STATE OF GUJARAT - Opponent(s) ======================================================= Appearance : MS SADHANA SAGAR for Appellant(s) : 1, MR HL JANI APP for Opponent(s) : 1, ======================================================= CORAM : HONOURABLE MR.JUSTICE R.P.DHOLAKIA and HONOURABLE MR.JUSTICE KS JHAVERI CR.A/447/2002 2/12 JUDGMENT Date : 22/04/2008 ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE KS JHAVERI) 1.0 This appeal under Sec.374 of the Code of Criminal Procedure has been preferred by the appellant-original accused of Sessions Case No.252/2001, who has been charged and tried for the offence punishable under Sections 307 and 451 of Indian Penal Code (I.P. Code) and under Section 135 of the Bombay Police Act, wherein he was convicted to undergo imprisonment for life and fine of Rs.1,000/-, in default, to undergo simple imprisonment for three months under Section 307 of the I.P. Code, also convicted to undergo rigorous imprisonment for one year and fine of Rs.500/-, in default, to undergo rigorous imprisonment for one and half month under Section 451 of the I.P. Code and also convicted to undergo imprisonment for six months and fine of Rs.500/-, in default, to CR.A/447/2002 3/12 JUDGMENT undergo rigorous imprisonment for one and half month under Section 135 of the Bombay Police Act by the learned Sessions Judge, Panchmahal at Godhra vide judgment and order dated 20.04.2002. It is also ordered to run all sentences concurrently. 2.0 The prosecution version in a nutshell is as follows :- 2.1 The appellant-accused had illicit relation with the wife of the complainant, which was not liked by the complainant and, hence, he left the said place and started residing at Surat on 13.06.2001 along with his wife. On 16.06.2001 at about 3:00 a.m., when the complainant was sleeping in his house in a cot, the appellant-accused came and assaulted the complainant with Axe on head and back portion of the body of the complainant. As a result of that, the complainant received serious injuries and thereby the appellant- accused committed an offence punishable under Section 307 of the I.P. Code. CR.A/447/2002 4/12 JUDGMENT 2.2 It is the further case of the prosecution that the appellant-accused entered in the house of the complainant with an intention to kill the complainant and, thereby committed an offence punishable under Section 451 of the I.P. Code. 2.3 It is the further case of the prosecution that on the very same date and time, though there was a Notification of the Additional District Magistrate under Section 37(1) of the Bombay Police Act, the appellant-accused was having weapon like Axe and has committed a breach of the said Notification and thereby, committed an offence punishable under Section 135 of the Bombay Police Act. 2.4 Accordingly, offence being I-C.R.No.85/2001 came to be registered with Kothamba Police Station for the offence under Sections 307 and 451 of the I.P. Code and under Section 135 of the Bombay Police Act. 2.5 On the basis of the investigation, Police carried out the investigation, recorded the CR.A/447/2002 5/12 JUDGMENT statements of various witnesses, drew necessary panchnamas in the presence of panchas and arrested the appellant-accused. 2.6 Upon completion of investigation, the charge sheet came to be submitted before the concerned Learned Magistrate. 2.7 As the offence alleged against the accused was exclusively triable by the Court of Sessions, same was committed to the Court of Sessions at Panchmahal under Section 209 of the Criminal Procedure Code, where it was numbered as Sessions Case No.252 of 2001. 2.8 Thereafter, the case was transferred and placed for trial before the learned Sessions Court, Panchmahal at Godhra for disposing of the same on merits. 3.0 On production of the accused, the Learned Sessions Judge framed charge vide Exh.2 for the offence under Sections 307 and 451 of the I.P. Code and under Section 135 of the Bombay Police Act, wherein the appellant-accused pleaded not guilty to the charge and claimed CR.A/447/2002 6/12 JUDGMENT to be tried. 3.1 To prove the case against the appellant- accused, the prosecution examined as many as 6 witnesses. The prosecution also placed reliance upon documentary evidence numbering 14 vide Exh.6. 3.2 On submission of closing purshis by the prosecution, learned Sessions Judge recorded further statement of the accused under Sec.313 of Code of Criminal Procedure qua the incriminating question wherein the accused came out with the case of total denial. The accused did not examine any witness nor stepped into the witness box. Therefore, after hearing the learned counsel appearing for the respective parties, learned Sessions Judge delivered the impugned judgment giving rise to file the present appeal. 4.0 We have heard learned counsel for the appellant, Ms.Sadhana Sagar and learned Additional Public Prosecutor, Mr.H.L. Jani for the respondent-State. CR.A/447/2002 7/12 JUDGMENT 5.0 Learned counsel for the appellant-accused, Ms.Sagar has fairly admitted that from the evidence of the complainant, P.W.No.2 viz., Kalubhai Nanabhai, Exh.9 and from the medical evidence of P.W.No.1 viz., Dr.Shelat Ashokkmar Modi, she cannot dispute the presence of the appellant-accused and role played by him at the time of alleged incident. However, looking to the injuries and the documentary evidence on record, she has concentrated her arguments upon the sentenced awarded by the Learned Sessions Judge as same is very harsh. Hence, it is submitted that the appellant-accused has been convicted for life under Section 307 of the I.P. Code and he has already undergone more than six and half years of sentence and, hence, some sympathy may be shown towards him. 6.0 Mr.Jani, learned Additional Public Prosecutor appearing for the respondent-State has objected the arguments advanced by the CR.A/447/2002 8/12 JUDGMENT learned counsel for the appellant-accused and submitted that the sentenced awarded by the Learned Sessions Judge is just, legal and proper. 7.0 We have gone through the oral as well as documentary evidence along with the relevant portion of the impugned judgment shown by the learned counsel for the respective parties. 7.1 P.W.No.1 viz., Dr.Shetal Ashokkumar Modi, Exh.7 is the doctor, who treated the complainant. This witness stated that on 16.06.2001, one Kalubhai Nanabhai Parmar was referred to him by the Community Health Centre,Lunawada. This witness stated that on the very same day at about 3:45 p.m., upon examining the said witness, following injuries were found :- (1) CLW on rt pectoral Region. Size – 7 cm x 3½ cm x 5 cm. (2) CLW on lower part of rt side of face. Size – 4 cm x 2 cm x 2 cm. (3) CLW on rt Clavicular region. Size – 5 cm x 3 cm x 2½ cm. (4) CLW on lateral aspect of Rt thigh. Size – 5 cm x 3 cm x 2 cm. (5) CLW on just above rt knee. CR.A/447/2002 9/12 JUDGMENT Size – 4 cm x 3 cm x 2½ cm. (6) CLW below Rt scapular Region. Size – 3 cm x 2 cm x 1 cm. (7) CLW below Lt scapular Region. Size – 3 cm x 2½ cm x 1 cm. (8) Pain over Rt. thigh. 7.2 This witness also stated that said patient was admitted on 16.06.2001 and discharged from the hospital on 26.07.2001. This witness was thoroughly cross-examined by the Learned advocate appearing before the Court below, but nothing contrary has come on record, which turtle his evidence. 7.3 It is also required to be noted that the injuries found on the body of the complainant are proved by medical evidence as well as injury certificate, Exh.8. 7.4 The prosecution has also examined panch of arrest panchnama as well as discovery panchnama viz., P.W.No.3, Kalidas Madhurbhai Patel, Exh.11, who proved the arrest panchnama as well as discovery panchnama, Exh.12 & 13 respectively and supported the case of the prosecution. CR.A/447/2002 10/12 JUDGMENT 7.5 The prosecution has also examined panch of scene of offence panchnama viz., P.W.No.4, Pratapbhai Motibhai, Exh.14, who proved the panchnama of scene of offence, Exh.15 and supported the case of the prosecution. 7.6 The prosecution has also examined P.W.No.6 viz., Chandugiri Punjgiri Gosai, Exh.23, who is the P.S.I. as well as Investigation Officer of the crime in question. This witness has stated that on 11.07.2001, he took over the investigation of C.R.No.I- 85/2001 registered with Kothamba Police Station. This witness stated that after collecting evidence against the appellant- accused, he submitted chargesheet before the Court. 7.7 Having gone through the evidence on record, it is clear that the appellant assaulted the complainant with Axe and caused him injuries and, therefore, we are in complete agreement with the findings arrived at by the Learned Sessions Judge that the present appellant- CR.A/447/2002 11/12 JUDGMENT accused has committed an offence under Section 307 of the I.P. Code. However, as far as the arguments advanced by the learned counsel for the appellant-accused, Ms.Sagar regarding the sentence awarded by the Learned Sessions Judge is concerned, we are of the opinion that same is on the higher side keeping in mind the injuries received by the complainant and no permanent disability. Therefore, we are of the opinion that if the sentence awarded by the Learned Sessions Judge be reduced, it will meet the ends of justice. 8.0 In the result, the appeal is partly allowed. Judgment and Order of conviction and sentence dated 20.04.2002 delivered by the learned Sessions Judge, Panchmahal at Godhra in Sessions Case No.252 of 2001 are modified and the sentenced imposed upon the appellant- accused for conviction under Section 307 of the Indian Penal Code is reduced from life to 10 years. Rest of the order of sentence CR.A/447/2002 12/12 JUDGMENT passed by the Court below including fines etc. would remained unaltered. Sd/- Sd/- (R.P.DHOLAKIA, J.) (K.S.JHAVERI, J.) /patil