CR.A/213/1987 1/5 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 213 of 1987 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 ? ================================================= STATE OF GUJARAT - Appellant Versus DHANUBHAI HIRABHAI & 3 - Opponents ================================================= Appearance : MR. P.D. BHATE, LD. APP for Appellant: NOTICE SERVED for Opponent : 1, MR MUKESH B DAVE for Opponents : 2 - 4. ================================================= CORAM : HONOURABLE MR.JUSTICE BHAGWATI PRASAD and HONOURABLE MR.JUSTICE S.R.BRAHMBHATT Date : 25/07/2008 ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE BHAGWATI PRASAD) 1. The present appeal has been filed by the State of Gujarat against the partial conviction under section 323, 324 and 325 CR.A/213/1987 2/5 JUDGMENT of I.P. Code and acquitting the accused from offence under section 307 I.P. Code, passed vide judgment & order dated 23/7/1986, by learned Assistant Sessions Judge, Kheda district at Nadiad, passed in Sessions Case No. 142 of 1985. 2. The prosecution case in brief is that the injured Babubhai Bijal as well as accused are near relatives. The incident took place on 3/2/1985 at about 7.00 p.m., at village Amod, Petlad Taluka, Vaghrivas. As per the prosecution story Babubhai Bijalbhai, injured witness (PW-11, exh. 28) went to accused No.1 - Dhanuhira's place and demanded his land by offering money. Accused no.1 got annoyed and he brought stick from his house and gave stick blow on head of Babu Bijal saying that he was not going to give land and Babubhai may do whatever way he like. At that time accused no.2 had dhariya with him and accused no.2 and 3 had sticks with them and they injured Babu Bijal with their respective weapons. 3. The wife of Babu Bijal on seeing this incident and hearing shouts came at the place of incident, when she was also beaten up and after that accused have left the place of incident. The complainant i.e. wife of Babu Bijal went to Petlad Rural Police Station for lodging complaint. Police Sub Inspector Shri Mansuri removed injured Babu Bijal to hospital at Petlad and there Babu Bijal as well as Madhuben (wife of Babu Bijal) were examined. Looking to the injuries sustained by Babu Bijal, he was taken to Baroda SSG Hospital and he was treated by Dr. Parvinaben Haridas (PW-1). 4. In support of the prosecution, it had examined 14 witnesses to prove the case against the accused. The main witnesses are:- CR.A/213/1987 3/5 JUDGMENT (1)PW-1 Exh. 7 - Dr. Parvinaben Haridas (2)PW-5 Exh. 15 - Madhuben (complainant) (3)PW-11 Exh. 28 - Babubhai Bijalbhai (4)PW-12 Exh. 29 Bhanuben Babubhai, minor aged 7 yrs (5)PW-13 Exh. 32 - Dr, Kiranbhai Motibhai. 5. As per the medical evidence, firstly the injured witnesses were brought to Petlad Hospital where Dr. Kiranbhai Motibhai (PW-13) examined them. According to him on 4/2/1985 at about 12.00 hrs he examined the injured and found multiple injuries. According to him injuries no. 1 to 8 are possible by dhariya but the doctor says that the injuries were not such by which death would be possible. All injuries were not serious, but fracture on right leg is a serious injury. He issued injury certificate for Babubhai Bijal at exh. 33 and injury certificate to Madhuben at exh. 35. Thereafter, injured Babu Bijal was examined by Dr. Pravinaben Haridas at SSG Hospital, at Baroda. According to the deposition of Dr. Pravinaben, Babu Bijal was brought on 4/2/1985. She also supports the multiple injuries caused to Babu Bijal. According to deposition of this doctor injury No. 1,8 & 9 are possible by dharia and other injuries are possible by sticks. She issued injury certificate exh. 8 for Babu Bijal and certificate exh. 9 for Madhuben. According to Dr. Pravinaben when she examined the injured the injuries were covered with clothes. 6. Babu Bijal, injured witness has clearly stated in his deposition that accused no.1 Dhanuhira had given stick blow and Mohanhira gave dhariya blow and accused no.3 & 4 had given stick blows. As per the deposition at exh. 29 of Bhanuben Babubhai, who is minor aged about years (PW-12) that accused no.1 Dhanuhira had given stick blow and also CR.A/213/1987 4/5 JUDGMENT accused no.3 Chiman Hirabhai. 7. The deposition of Madhuben (PW-5) at exh. 15 state that accused no.1 Dhanuhira had given stick blow and dharia blow was given by Mohanhira. When the incident took place she was preparing food but she was able to see the incident form her place because accused house is very near to her house and she had given complaint at exhibit-16. 8. Learned Addl. Sessions Judge in his findings did not believe that the injuries caused to Babu Bijal to be an attempt to murder and therefore acquitted the accused from offence punishable under section 307 I.P. Code. Even as per the deposition and injury certificates issued by the doctors section 307 would not be attracted. However, learned judge convicted the accused under section 323, 324 and 325 of I.P. Code and passed order of acquittal under Section 307 of I.P. Code. Feeling aggrieved and dissatisfied by the partial conviction of the accused and acquitting them from offence under section 307 I.P. Code, the State had preferred the present appeal. 9. We have heard learned counsels for the parties and perused record & proceedings of the Sessions Case. The medical evidence in this case is of vital importance. Both the doctors in their evidence hearing stated that looking to the injuries sustained by the injured it was unlikely that the death could result out of the injuries. Considering the deposition of the doctors, the findings arrived for acquittal of accused under section 307 I.P. Code appear to be appropriate. There is only one fracture on the leg of Babu Bijal for that injury certificate under section 325 I.P. Code have been recorded. For all other offences for which the conviction had been recorded are CR.A/213/1987 5/5 JUDGMENT bailable offences. 10. We are of the opinion that, at this distance of time when the occurrence had taken place in year 1985, it would not be appropriate to send the accused behind the bars, therefore at this stage no interference is called for. Thus the sentence already undergone by the accused are considered to be sufficient and substantive sentence. The appeal therefore deserves to be dismissed and is accordingly dismissed. Bail bonds of the accused stand cancelled. [ BHAGWATI PRASAD, J ] [ S.R. BRAHMBHATT, J ] /vgn