IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No 538 of 1995 with CRIMINAL APPEAL No 597 of 1995 For Approval and Signature: Hon'ble MR.JUSTICE B.C.PATEL and Hon'ble MR.JUSTICE A.L.DAVE ============================================================ 1. Whether Reporters of Local Papers may be allowed : NO to see the judgements? 2. To be referred to the Reporter or not? : NO 3. Whether Their Lordships wish to see the fair copy : NO of the judgement? 4. Whether this case involves a substantial question : NO of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the Civil Judge? : NO -------------------------------------------------------------- THE STATE OF GUJARAT Versus BABUBHAI@ FAKDIRBHAI ABHESINGMAHIDA -------------------------------------------------------------- Appearance: 1. Criminal Appeal No. 538 of 1995 MR KC SHAH, APP, for Appellant NOTICE SERVED for Respondent No. 1 2. Criminal AppealNo 597 of 1995 MR PJ YAGNIK for Petitioner MR KC SHAH, APP, for Respondent No. 1 -------------------------------------------------------------- CORAM : MR.JUSTICE B.C.PATEL and MR.JUSTICE A.L.DAVE Date of decision: 11/06/2001 ORAL JUDGEMENT (Per : MR.JUSTICE A.L.DAVE) 1. These two criminal appeals arise out of a judgment and order passed in Sessions Case No.162 of 1994 by learned Additional Sessions Judge, Kheda, at Nadiad, on February 24, 1995, convicting the accused for offence punishable under Section 307 of Indian Penal Code and Section 135 of Bombay Police Act and sentencing him to undergo simple imprisonment for a period of eight years and to pay a fine of Rs.500/- and, in default, to suffer simple imprisonment for six months more. 2. The facts of the case, in a narrow compass, are that, one Bhikhubhai Girdharbhai Mahida of village Navagam lodged an F.I.R. with Mahelav Police alleging that one Babubhai alias Fakirbhai Abhesinh Mahida had assaulted the complainant's daughter-Bhanuben with a knife on April 14, 1994 at about 11.00 A.M. in the outskirts of village Navagam. As per the prosecution case, Bhanuben was going towards the village pond for washing clothes. She was followed by her mother and grandmother. At that time, when she reached near the field of Manubhai, Babu Abhesing approached her and asked her to halt. Bhanuben did not pay any heed to his command. He, therefore, ran after her and caused multiple injuries with knife. As a result of the injuries, she fell down. The assailant, thereafter, ran away. Bhanuben was immediately rescued by her mother and grandmother so also one Mehrajben and one Merubha also rescued her and took her in a rickshaw to Ramol for medical treatment and therefrom to Nadiad for further treatment. At the hospital, history regarding the incident was given involving accused-Babu Abhesing. Dying declaration of the injured Bhanuben was also taken. On basis of the F.I.R. lodged by father of the injured, the Police registered an offence and started the investigation. Having collected the evidence and having found that there is ample evidence to connect the accused with the offence, a charge sheet was filed. Since the case was triable exclusively by the Court of Sessions, the case was committed to the Court of Sessions at Nadiad. Sessions Case No.162 of 1994 was registered. The accused was charged with offence punishable under Section 307 of I.P.C. and Section 135 of Bombay Police Act vide Ex.4. The accused pleaded not guilty to the charge and expressed his desire to face the trial. 3. The prosecution in order to prove the charges against the accused, examined the injured eye-witness as well as other eye witnesses. The prosecution also examined medical officer in order to prove the injuries After considering the evidence led by the prosecution, the Trial Court came to a conclusion that the prosecution has successfully proved the charges against the accused and, ultimately, convicted the accused for the offences punishable under Section 307 of I.P.C. and Section 135 of Bombay Police Act. The learned Trial Judge sentenced the accused to undergo simple imprisonment for eight years an imposed a fine of Rs.500/- for the offence punishable under Section 307 of I.P.C. The learned Additional Sessions Judge directed that in event of default in payment of fine, the accused to undergo further simple imprisonment for six months. No separate sentence was imposed for the offence punishable under Section 135 of Bombay Police Act. 4. Aggrieved by the judgment and order, the original accused has preferred Criminal Appeal No.597 of 1995 against conviction whereas, aggrieved by the quantum of sentence, the State has preferred Criminal Appeal No.538 of 1995 for enhancement of sentence. Since both these appeals arise out of same judgment and order, they are heard together and disposed of by this common judgment. For sake of convenience, the appellant in Criminal Appeal No.597 of 1995 is addressed to as "the accused" in this judgment. 5. We have heard learned Additional Public Prosecutor Mr. K.C. Shah on behalf of the State. Mr. P.J. Yagnik, learned advocate for the original accused was not available when the matter was called out. As such Mr. U.A. Trivedi, learned advocate present in the Court, was appointed as amicus curiae in order to assist the Court on behalf of the accused. 6. We have been taken through the evidence on record by both the sides. We have also been taken through the judgment rendered by the Trial Court. We have closely examined the record and proceedings. 7. In this case, we find that the prosecution story has emerged consistently and the evidence of the eye-witnesses have remained unshaken. The evidence, in our opinion, is unshakable as to its truthfullness, trust worthiness and veracity. 8. The injured eye-witness Bhanuben is examined at Ex.14. She narrates the incident as it occurred. She has been subjected to cross-examination, but no material emerges to render the deposition unbelievable or even doubtful. Her version is supported by Nanduben Bhikhubhai (Ex.17) and Manubhai Chimanbhai (Ex.20). All these witnesses give a consistent version about how the incident occurred. They support the say of the injured eye-witness Bhanuben that for no reason, Bhanuben was assaulted upon by the accused with a knife and multiple injuries were caused. The version of these witnesses gets corroboration from the medical evidence of Dr. Vipul Shah (Ex.7) and medical certificate (Ex.8) so also Dr. Vithalbhai Patel (Ex.11) and Medical certificate at Ex.12. 9. It also transpires from the evidence that immediately after the incident, Bhanuben has implicated the accused before the other witnesses who approached the place of incident after the incident occurred. It also transpires that in the history given to the doctor also, the accused is indicated as the assailant. There is recovery of knife used in the commission of the offence duly proved and above all, there is blood stain on the cloth of the accused which is human blood of group "B", which is the blood group of the victim. The arrest Panchnama indicates that there was no injury on person of the accused. This eliminates the possibility of that blood stain being that of accused himself. No attempt is made to explain the presence of this blood stain by the accused. 10. All the above factors taken together strongly establish a case against the accused, as has rightly been held by the learned Trial Judge. 12. In view of the decision rendered by the Apex Court in State of Karnataka v. Hemareddy & Another, A.I.R. 1981 SC 1417 and Girijanandini Devi & Ors. v. Bijendra Narain Choudhary, A.I.R. 1967 S 1124, we deem it not necessary to repeat the narration of evidence or to reiterate the reasons given by the Trial Court for convicting the accused. We may, however, add that we have thoroughly gone through the record and proceedings so also the judgment and order rendered by the Trial Court and we are in full agreement with the reasoning adopted and the conclusions arrived at by the learned Trial Judge. We are, therefore, of the view that no case is made out for interfering with the conviction recorded by the learned Trial Judge and, as such, we do not find any merits in Criminal Appeal No.597 of 1995 preferred by the accused against the judgment and order of conviction. The appeal deserves dismissal. 13. So far as the appeal preferred by the State for enhancement of sentence is concerned, we find that the learned Trial Judge has sentenced the accused to undergo simple imprisonment for eight years with a fine of Rs.500/-. No reasons are indicated by the appellant-State in Criminal Appeal No.538 of 1995 to show that the learned Trial Judge has used his discretion improperly, illegally or arbitrarily. The law prescribes a maximum punishment of imprisonment for life or imprisonment of either description for a term which may extend 10 years and fine for an offence punishable under Section 307 of I.P.C. The learned Trial Judge had heard the accused on question of quantum of punishment and has passed the order after considering the young age of the accused in relation to the nature of injuries and has, thereafter, imposed the punishment. We do not see any reason to interfere with the discretion used by the learned Trial Judge in imposing the sentence. The appeal of the State for enhancement of sentence also must fail. 14. Both the appeals stand dismissed. The judgment and order of conviction and sentence passed against the accused is hereby confirmed. 15. We may, at this stage, state that Mr. P.J. Yagnik appeared while we were about to conclude the judgment. 16. Before parting, we would place on record our appreciation of the services rendered by learned advocate Mr.U.A. Trivedi as amicus curiae. [ B.C. PATEL, J. ] [ A.L. DAVE, J. ] gt