CR.A/527/1997 1/9 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 527 of 1997 For Approval and Signature: HONOURABLE MR.JUSTICE AKIL KURESHI ========================================================= 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 ? ========================================================= VAJESINH SIKHABHAI CHAUHAN & 1 - Appellant(s) Versus STATE OF GUJARAT - Opponent(s) ========================================================= Appearance : MR ANAND L SHARMA for Appellant(s) : 1 - 2. MR PD BHATTE, APP for Opponent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE AKIL KURESHI Date : 19/12/2007 ORAL JUDGMENT 1. The appeal arises out of judgement and order dated 30.4.1997 rendered by learned Additional Sessions Judge, Ahmedabad in Sessions Case CR.A/527/1997 2/9 JUDGMENT No.126/1993. 2. The appellants were the original accused who were charged with offences punishable under Sections 307, 332 read with Section 32 of the Indian Penal Code. Learned Additional Sessions Judge though acquitted the appellants of offence punishable under Section 307 read with Section 34 of the Indian Penal Code, found that there was evidence to the effect that appellants have committed offence punishable under Section 332 read with Section 34 of the Indian Penal Code. They were sentenced to undergo two years of rigorous imprisonment and fine of Rs. 1,000/-. 3. Broadly stated, the prosecution case is that on 5.1.1993 at about 23:15 at night, complainant Gopalbhai who was police constable was patrolling along with police constable Pravinkumar in Odhav area on the city of Ahmedabad. They came near a area called Soni-ni- chali and reached a place called Manusaheb-ni- chali at which time near the factory two persons i.e. the accused had lit bonfire. The complainant had some exchange of words with the accused upon which the accused tried to snatch the rifle from the police constable Pravinkumar. One of them gave a Dhariya blow on the back of head of the complainant, another blow was given on the right hand side of head. The other person attacked the complainant with an iron pipe and CR.A/527/1997 3/9 JUDGMENT gave blows on his back and on the shoulder. 4. To drive home the charge, prosecution has examined several witnesses. 5. Gopalbhai Mafatlal-PW1 was examined at exh.9. He is discharging his duties as police constable at Odhav police station since 27.1.1991. On 5.1.1993, his duty was from 20 hours at night to 8 O' clock in the morning. He and Pravinkumar were asked by the Head Constable to patrol the area of Manusaheb-ni-chali. Two of them had therefore, gone towards the said area. One Nilesh alias Thinguji was also with them. When they reached the Manusaheb-ni-chali, they found that two people had lit the bonfire. They had some exchange of words. When they went close to the persons, one of them tried to snatch rifle from the police constable Pravinkumar. The witness therefore, tried to intervene. One of the person therefore, gave one Dhariya blow on his head, another blow on the right hand side of the head. Other person gave a pipe blow on his back and shoulder. One more Dhariya blow was given to him by first person which he warded off with his left hand after which the assailants ran away towards the factory. The complainant and Pravinkumar came towards the road and stopped the passing car of Police Inspector and informed him about the incident. They had therefore, went towards factory and caught the CR.A/527/1997 4/9 JUDGMENT accused. One of them was Vajesinh Sukabhai and other person was Jalamsinh Sukabhai. Vajesinh had given Dhariya blows and Jalamsinh had given pipe blows. Witness identified these persons before the Court. He was treated at Shardaben Hospital. He identified the Mudammal article Dhariya and Pipe as those used in the assault. He however, stated that on the date of incident, he was wearing civil dress. 5.1 In the cross examination, however, he stated that he was carrying a stick. Pravinkumar was carrying a rifle and Pravinkumkar was in Uniform. He admitted that no Test Identification Parade of the accused was carried out. 6. Pravinkumar Popatlal Patni-PW2 was examined at exh.11. He gave somewhat similar version of the incident. He also stated that he and complainant were patrolling near Manusaheb-ni-chali. One Nileshbhai was also with them. They came near the area where there are several factories. Near one factory two people were sitting by a bonfire. They had some conversation with these persons. When they went close to them one of them tried to snatch his rifle. The complainant therefore, intervened. He was given Dhariya blows on the head and pipe blows on the body. He and complainant therefore, came to cross road where they stopped the car of the Police Inspector passing by and informed Police CR.A/527/1997 5/9 JUDGMENT Inspector Chaudhary about the incident. They sat in his Jeep and went towards the factory near which the incident had taken place. They went inside the factory and from office of the factory both the accused were caught. The witness identified the accused who were present before the Court. 6.1 The witness in his cross examination stated that he had not seen the board of the factory from which accused were arrested. 7. Omprakash Tirkhiram-PW3 was examined at exh.12. He was the Panch witness in whose presence recovery Panchnama of the Mudammal articles Dhariya and Pipe was drawn. 8. Nilesh Kaniyalal Bhatt-PW6 was examined at exh.20. He was the person who according to the complainant was present when the incident had taken place. This witness did not support the prosecution. He was therefore, declared hostile. 9. Dr. Bakul Jairambhai Patel-PW4 was examined at exh.15. He was the Doctor who had treated the complainant late at night between 5th and 6th January, 1993. He found following injury on the body of the complainant: 1) One C.L.W. at the back of the head of 4cm x 0.5cm x 0.7cm 2) One C.L.W. on the right hand side of the CR.A/527/1997 6/9 JUDGMENT head of 2cm x 0.5cm x 0.3cm. 3) One blood clotting near the shoulder of 1.5cm x 8 cm. 4) One blood clotting on the back of 1cm x 8cm. 5) One blood clotting on the right underarm of 3cm x 5cm. 6) One blood clotting on the left hand side of the back of 0.4cm x 12cm. 7) One incise wound on the left hand thumb of 3cm x 3cm. 9.1 Doctor stated that blunt portion of the Dhariya shown to him could have caused injury which are described as C.L.W. He stated that blood clotting injury could be caused by iron pipe shown to him. 9.2 In the cross examination, he admitted that none of the injuries were grievous injuries or sufficient to cause human death. 10.Ranchodbhai Masotbhai Chaudhary-PW7 was examined at exh.23. He stated that on 5.1.1993, when he was discharging his duties as police inspector at Odhav police station, he had gone for patrolling at night in the Government vehicle. At about 11 O' clock in the night, he saw the complainant and Pravinkumar near the Manusaheb's well. Since he found the complainant bleeding from head stopped the vehicle. Police Constable Pravinkumar narrated the incident of CR.A/527/1997 7/9 JUDGMENT being attacked by Dhariya and pipe. He therefore, took both the persons in his car and Gopalbhai was sent to Shardaben Hospital and upon his complaint, investigation was carried out. 11.On the basis of above evidence, prosecution seeks to establish the above charge. 12.Having perused the material on record and having heard learned advocates appearing for the parties, I find that learned Judge rightly convicted the appellants under Section 332 read with Section 34 of the Indian Penal Code. The complainant Gopalbhai-PW1 had given detailed account of incident in question. He had narrated the manner in which the accused person had given Dhariya blows and pipe blows to him on various parts of the body. His version was supported by Pravinkumar-PW2. This was corroborated by the evidence of Ranchodbhai-PW7, police inspector in whose vehicle the complainant and Pravinkumar sat immediately after the incident. Description of nature of blows given to Gopalbhai-PW1 matched with injuries noticed by Dr.Bakul-PW4 who had treated the complainant immediately after the incident. The weapons were recovered at the instance of the accused. It is true that the accused were not known to the complainant. It is also true that no Test Identification Parade was carried out. However, one cannot lose CR.A/527/1997 8/9 JUDGMENT sight of the fact that the accused were arrested from the premises of the factory almost immediately after the incident. The factory was one near to which the incident had taken place. Both the accused were identified by the complainant as well as Pravinkumar before the Court. 13.There are no contradictions in the eyewitness account of the complainant as well as Pravinkumar. Thus prosecution proved the case beyond doubt. Thus despite witness Nilesh turning hostile, there was sufficient evidence on record to bring home the charge. Considering the nature of injuries and opinion of Doctor regarding seriousness of the injuries, learned Additional Sessions Judge rightly did not find sufficient evidence to convict the accused under Section 307 of the Indian Penal Code. Nevertheless, accused had caused injuries to public servant discharging their duties. Though the complainant was not in police uniform, another police constable was in full uniform carrying a police rifle. Thus, learned trial Judge rightly convicted the appellants under Section 332 of the Indian Penal Code. 14.In the result, I find no illegality in the order passed by learned Additional Sessions Judge. The appeal is therefore, dismissed. Bail stands cancelled. The appellants shall have time CR.A/527/1997 9/9 JUDGMENT to surrender upto 1.1.2008. 15.Learned advocate for the appellants at this stage submitted that the appellants be granted benefit of probation. He submitted that both the appellants were at the relevant time young person and had no other criminal record. 16.Despite this fact, considering the nature of incident and considering that appellants had without sufficient provocation attacked the police persons who were discharging their duties, I do not find this a fit case for grant of benefit of probation. Request of learned advocate for the appellants is therefore, turned down. (Akil Kureshi,J.) (raghu)