CR.A/1206/2004 1/7 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 1206 of 2004 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 ? ========================================================= GHANSHYAMBHAI DHIRUBHAI MEHTA - Appellant(s) Versus STATE OF GUJARAT - Opponent(s) ========================================================= Appearance : MS HINA DESAI for Appellant(s) : 1, MR PD BHATTE, APP for Opponent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE AKIL KURESHI Date : 02/04/2008 ORAL JUDGMENT 1. The appellant is the original accused. By impugned judgement and order dated 30.9.2003, he was convicted for offences punishable under Sections 394 and 397 of the Indian Penal Code. He was sentenced to rigorous imprisonment of two years for offence punishable under Section 394 CR.A/1206/2004 2/7 JUDGMENT and for rigorous imprisonment of seven years for offence punishable under Section 397 of the Indian Penal Code. The sentences were made concurrent. 2. As per charge exh.3, it was alleged against the appellant that on 2.4.1997, at about 4 O' clock in the evening he had with intention of committing robbery, assaulted complainant Chandugiri Morargiri, had given knife blows on his abdomen and below his arm and also robbed him of Rs. 500/- which he was carrying in his pocket. 3. The complainant Chandugiri Morargiri-PW1 was examined at exh.7. He stated that on 2.4.1997 at about 4 O' clock in the afternoon he had gone to Pan shop near his house. After eating Pan when he returned to his house, at that time someone from behind attacked him and gave one knife blow on the left hand side of the body, one on his abdomen and one on his thigh and snatched away Rs. 500/- from his pocket. The assailant Ghanshyambhai-accused had also beaten him on the wrist. He identified the accused before the Court. Upon hearing noise, his uncle Himmatbhai and Dilipbhai reached the spot. The appellant ran away from the scene of offence with the knife. He was shifted to Liliya Hospital on motorcycle. From there he was first taken to Amreli Civil Hospital and, thereafter, to Rajkot CR.A/1206/2004 3/7 JUDGMENT Civil Hospital. He remained in hospital at Rajkot for eight days. He identified muddamal article knife as one used in the offence. He also identified his own bloodstained clothes. 3.1 In the cross examination, he stated that he had no previous enmity with the accused. Since the incident happened on Bhaibij day, he had not gone for work. There is distance of about 100 mtrs. between his house and place of incident. He was carrying money to buy clothes for his son. He was confronted with certain contradictions in his deposition compared to his police statement. He however, denied having made such statements. (At this stage however, it may be noted that such contradictions have been proved by the defence through deposition of the IO). 3.2 He agreed that there was scuffle between him and the accused and both of them had fallen down on the ground. He however, denied that since he fell down,the currency notes slipped out of pocket. 4. The police had collected the bloodstained clothes of the complainant, blood soaked soil from the scene of incident by drawing panchnama. Such Panchnama were proved before the Court through panch witnesses. The knife and currency notes were recovered from the accused. CR.A/1206/2004 4/7 JUDGMENT 5. Shantibhal Shamjibhai-PW4(exh.14) was panch witness to such panchnama. He however, turned hostile. Contents of panchnama was proved through the deposition of IO. 6. Dilipgiri Prabhatgiri-PW5(exh.16) stated in his deposition that upon hearing commotion from the nearby street, he reached the scene of incident and found that his brother-complainant Chandugiri was bleeding profusely. Upon being asked, he was told that the accused had given knife blows to him and had also taken away Rs. 500/-. 6.1 In the cross examination, he admitted that he had not seen the incident himself. After he reached the spot many other people had also gathered. 7. Shansing Kadubhai-PW7(exh.20) was the police officer who had carried out investigation. He stated that accused had produced the knife allegedly used in the offence and also currency notes totaling to Rs.500/-. 7.1 In the cross examination, he admitted that the complainant in his police statement had stated that when his complaint was recorded by Rajkot police due to lapse in memory he could not give proper account. He had also stated that CR.A/1206/2004 5/7 JUDGMENT he had no previous quarrel with the accused but accused had demanded money from him which he did not give and, therefore, the accused had given him knife blows. 8. Dr.Ashwinkumar Davrajbhai Tank-PW9(exh.23) was the medical officer at Rajkot Government Hospital who had treated the complainant. He stated that the complainant was brought to him without police yadi. He had given history of being assaulted by sharp edged weapon. He had found following two injuries. 1) one wound caused by sharp edged weapon under left underarm of 1 and ½ cm long 2) one similar would of 2 cm length on the left abdomen. He stated that injuries were grievous and would normally take three weeks to heal. 8.1 In the cross examination, he denied that neither injury was on vital part of the body. 9. The FSL report of various articles seized by the appellant indicated presence of B+ blood on the clothes of the complainant as well as from the soil collected from the scene of offence. 10.This is the gist of evidence led by the prosecution. CR.A/1206/2004 6/7 JUDGMENT 11.From the above, it can be seen that the complainant injured eyewitness himself had narrated the incident before the Court primarily stating that on 2.4.1997 at about 4 O' clock in the afternoon when he was returning home after having Pan, he was attacked by the accused who had given him knife blows and snatched away Rs. 500/- from his pocket. Between the complainant and the appellant original accused, there is not even a suggestion of previous enmity. There is no reason why the complainant should have falsely involved the appellant. The say of the complainant was corroborated by other attendant circumstances and the evidence of other witnesses. Dilipgiri-PW5(exh.16) had reached the spot shortly after the incident upon hearing the noises. Though admittedly he was not an eyewitness, he reached the spot within the shortest possible time. Immediately he was told by the complainant as to what had happened. 12.The version of the complainant-PW1 gets further support from the nature of injuries noted by the Dr.Ashwinkumar Davrajbhai Tank-PW9(exh.23). He had treated the complainant at Rajkot. He had found that injuries were grievous and could be caused by sharp cutting weapon. He had discharged the patient after nine days of the treatment. He had stated that Dr. Nirmal had operated the complainant. Additionally, I also found that the clothes recovered by the police CR.A/1206/2004 7/7 JUDGMENT which the appellant had worn at the time of incident as well as the soil where the incident allegedly took place contained presence of human blood of B+ as per the FSL report. 13.The incident took place in the broad day light. The complainant had sufficient time and opportunity to see the face of the assailant. He immediately recognised him since the accused belonged to the same village. His name was therefore, disclosed in the FIR. The complainant also identified the accused before the Court. 14.Considering all these aspects of the matter, I have no manner of doubt that prosecution succeeded in proving the allegations beyond reasonable doubt. The involvement of the appellant in the alleged incident, his assault, his act of causing injury to the complainant with knife and his act of taking Rs. 500/- from his pocket remained firmly established. 15.Under the circumstances, I find that learned Sessions Judge committed no error in convicting the appellant for offences punishable under Sections 394 and 397 of the Indian Penal Code. No interference is therefore, called for. The appeal is dismissed. (Akil Kureshi,J.) (raghu)