CR.A/440/1988 1/10 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 440 of 1988 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 ? ========================================================= THAKORE BABUJI CHELAJI & 6 - Appellant(s) Versus STATE OF GUJ - Opponent(s) ========================================================= Appearance : MR DK DESAI for Appellant(s) : 1,4 - 7.UNSERVED-EXPIRED (N) for Appellant(s) : 2 - 3. MR PD BHATE, APP for Opponent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE AKIL KURESHI Date : 05/05/2008 ORAL JUDGMENT Appellants are original accused Nos.2, 3, 4, 6, 7, 8 and 9 in Sessions Case No.125/86. By the judgment and order dated 25h April 1988, the CR.A/440/1988 2/10 JUDGMENT appellants were convicted under section 323, 326 and 325 of the Indian Penal Code. During the pendency of the appeal, appellant Nos.2 & 3 i.e. original accused Nos.3 & 4 respectively having expired, appeal has abated qua these appellants. Insofar as remaining appellants are concerned, appellant Nos.1, 4, 5 & 6 were convicted for offence punishable under section 323 of Indian Penal Code and sentenced to one month of simple imprisonment and fine was also imposed on them. So far as appellant No.7 is concerned, he was convicted for offence under section 326 of the Indian Penal Code and sentenced to simple imprisonment of six months. 2. As per charge Ex.6, it was alleged against the original accused that on 7th July 1985 between 9.00 to 10.00 O' clock in the morning, the accused persons armed with dharia, sticks, bow and arrow, etc. with the intention of committing robbery attacked the complainant Kumbhaji Mansangji and caused grievous injuries to the complainant as well as to other injured eye-witnesses. The accused also took away utensils and other items from the house of the complainant and other witnesses. They also took away food-grains and thereby committed offence of robbery. It may be noted that though specifically no reference to offence under section 323, 324 and 326 of the IPC was made in the charge, it was clearly alleged that the accused had, with deadly weapons, caused grievous hurt. CR.A/440/1988 3/10 JUDGMENT 3. All the accused were acquitted for offence punishable under section 395, but were found guilty of offence punishable under sections 323 or 326 of the Indian Penal Code as noted above. 4. Complainant Kumbhaji, PW-1, was examined at Ex.25. He stated that the incident had taken place about 3 years back. At about 8.00 O' clock in the morning, when he was sitting near his bore-well, accused Jivanji Ganeshji came there with his plough. The witness, therefore, prevented him from passing from the field, upon which Jivanji returned. But later on he came with other accused persons armed with sticks, dharia, bow and arrow, sword, etc. They got excited and started beating up. Mavaji Madhuji gave a stick blow on his ear, Sartanji gave a dharia blow to Laxmiben on her head. Babuji Chelaji, accused No.2 hit Laxmanji on his leg with an arrow. Ranchodji, accused No.7 gave a sword blow to Fulaji on his leg and near his eye. In the cross-examination, he stated that there were 10 to 15 cases filed between the complainant side and the accused side. He admitted that other injured witnesses are his relatives. 5. PW-2, Laxmanji Amritji who was examined at Ex.29, stated that after being stopped, Jivanji came back at about 9.15 in the morning along with other accused who were armed with weapons such as, swords, sticks, dharia, etc. Babuji Chelaji, accused No.2 CR.A/440/1988 4/10 JUDGMENT hit arrow on his leg. Melaji, accused No.3 gave a blow with a stick on his ear. Accused No.4, Sartanji gave a dharia blow to Laxmiben. He also described the other injuries caused by other accused persons. 6. Laxmiben, PW-3, at Ex.30, stated, inter alia, that Jivanji returned with 10 to 15 people between 9.00 to 10.00 O' clock armed with dharia, sword, sticks, etc. Madhaji had given a stick blow to her brother-in-law. Sartanji gave a dharia blow to her on her head. She had lost consciousness. She had to be removed to the hospital. 7. PW-4, Badarji Madhaji, Ex.31 stated that 15 accused persons had come. There were other 50 people with them. He also described the different injuries caused by different accused. 8. PW-12, Chanduji Madhaji, at Ex.47, also gave similar version of being attacked by the accused persons. He also received injuries during the incident. 9. PW-16, Arjanji Kacharaji was yet another insured eye-witness. He also gave similar version of the incident. 10. PW-17, Fulaji Chelaji, also received injuries in the incident. 11. PW-15, Dalsangji, Ex.63 had intervened. He, CR.A/440/1988 5/10 JUDGMENT however, did not know the names of the accused persons, but identified them before the Court. 12. Dr.Shivabhai Patel, PW-14, Ex.52 had treated the complainant and other injured eye-witnesses. On different persons he had noticed following injuries. “1. Badarji Madhaji: (1)One diffuse contusion on right fore-arm near elbow joint. (2)One abrasion on right index finger ½ x ½ c.m. irregular. 2. Arjanji Kachraji: (1)One contusion with abrasion on middle of it on middle of left arm 3 x 4 cm. (2)One abrasion on middle of back of left side chest 1 x 1 cm. (3)One wheal mark 6 cm x 1.5 cm on back of right side chest (4)One contusion on dorsum of left great toe 1 x 1 cm. 3. Fulaji Chelaji: (1)One incised wound on front of left cheek 2.5 cm x ¼ cm x skin deep. (2)One lacerated wound on front upper part of left side chest. (3)One lacerated wound on middle front of right leg 1 x 1 cm. (4)One abrasion on back of left thigh middle 1 x 1 cm. CR.A/440/1988 6/10 JUDGMENT 4. Laxmanji Amritji: (1)One punctured wound ½ x ½ cm x 1 cm deep on front of left leg lower part. (2)One contusion on right shoulder lower part 3 x 2 cm (3)Tenderness present on front and lateral part of chest. 5. Chanduji Madhaji: (1)One incised wound on front of left cheek 4 cm x 1 cm x skin deep. (2)One lacerated wound on dorsum of left hand 4 cm x 1 cm associated with fracture of 5th metacarpal bone. 6. Kumbhaji Mansangji : (1)One lacerated wound on and front of tragus of right ear. Bleeding from right ear present. (2)Patient had developed right side facial nerve paralysis. Patient is not able to move right eye and watering of eye present. 7. Laxmiben Badarji: (1)One incised wound on top and posterior part of head 4.5 cm x 1 cm x skin deep. X ray was taken for the same injury and x-ray shows liner fracture in occipito parietal region. (2)One incised wound on right frontal region 3 cm x ½ cm x skin deep.” 13. Investigating Officer, Lavjibhai Kanabhai, PW-20 was examined at Ex.73. In his cross-examination, he CR.A/440/1988 7/10 JUDGMENT admitted improvements and contradictions in the deposition of the witnesses. 14. As pointed out by learned advocate Shri Desai for the appellant, though it is true that there are certain internal contradictions and improvements in the depositions of the witnesses, the question is in view of such elaborate and substantially consistent eye witnesses account, can it be held that the appellants were not involved in the incident at all or that they had not caused injuries to the complainant and other injured witnesses. 15. The fact remains that some scuffle took place between the complainant and other family members on one side and the accused on the other side is seriously not in doubt. Though it is suggested by the defence in the cross-examinations of the witnesses that the injuries resulted were on account of stone pelting by mob of people and not by the blows given by the accused, such suggestions have been denied. Even Dr.Shivabhai, PW-14, in his deposition rejected the suggestion that the some of the injuries could have been caused by sharp aged stones. 16. Further, the witnesses gave a fairly clear version of the manner in which the incident had taken place. It is consistently stated by the complainant that in the morning when he was sitting near his bore-well, Jivanji was trying to pass through his CR.A/440/1988 8/10 JUDGMENT field with his plough. The complainant, therefore, stopped him upon which though Jivanji returned, he later on came back with other persons armed with sticks, dharia, swords, bow and arrow, etc. Eye witness account of the injured witnesses is corroborated by the medical evidence in which on different parts of the bodies of seven witnesses, Dr.Shivabhai found multiple injuries. The doctor found that some of the injuries could have been caused by hard and blunt substance whereas some injuries could be caused by sharp cutting weapons. Particularly the doctor found that the injury on the head of Laxmiben was grievous hurt. He had found one incise wound on posterior part of head of 4.5 cm x 1 cm x skin deep and linear fracture in occipital parietal region was detected. Such injury could be caused by sharp cutting instrument and would take about 4 to 6 weeks to heal. On the body of Chanduji Madhaji also, he found one lacerated would on the left hand and associated fracture of 5th metacarpal bone. Such injury could be caused by sharping cutting instrument. 17. It thus remains beyond doubt that the appellants armed with weapons such as, sticks, dharia, sword, etc. attacked the complainant and other companions and caused several injuries, some of them were grievous hurt. 18. It is true that there are cross complaints and the complainant of the cross case had also received CR.A/440/1988 9/10 JUDGMENT injuries and was treated by the same doctor PW-14 as is apparent from his deposition. However, the incident had taken place near the house of the complainant and other family members. Accused were armed with weapons. They were thus the aggressors. 19. In view of the above discussion, despite certain minor contradictions in the evidence, I do not find that the learned Judge committed any error in convicting the appellants. It is true that PW-4, Badarji stated that followed by the accused there was a mob of about 50 persons. PW-13, Anuben also suggested that besides the accused there were about 500 persons. These are mere exaggerations and would not otherwise destroy the effect of the evidence of the witnesses. 20. It is true that there has been long passage of time since the incident took place. Learned advocate for the appellants, therefore, submitted that the appellants be at least given the benefit of probation. In the present case, I find that this is not the first involvement of the appellants and between the two sides as many as 10 to 15 criminal cases have been filed. Therefore, no case for probation is made out. 21. In the result, I see no merits in the appeal. Appeal qua appellant Nos.2 & 3 stand abated. Appeal qua rest of the appellants is dismissed. Bail bonds stand cancelled. The appellants shall, however, have CR.A/440/1988 10/10 JUDGMENT time upto 30th June 2008 to surrender. (Akil Kureshi, J.) (vjn)