CR.A/422/2005 1/7 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 422 of 2005 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 ? ========================================================= SIDI BADSHAH HASSAN REHMAN MAKWANA - Appellant(s) Versus THE STATE OF GUJARAT - Opponent(s) ========================================================= Appearance : MS SADHANA SAGAR for Appellant(s) : 1, MR PD BHATTE, APP for Opponent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE AKIL KURESHI Date : 16/05/2008 ORAL JUDGMENT 1. The appellant is original accused No.1. By impugned judgement and order dated 18.1.2005 passed by learned Additional Sessions Judge, CR.A/422/2005 2/7 JUDGMENT Veraval in Sessions Case No. 31/2000, the appellant was convicted for offence punishable under Section 326 of the Indian Penal Code and sentenced to rigorous imprisonment of five years. He was also directed to pay fine of Rs. 20,000/-, out of which sum of Rs. 15000/- was ordered to be paid to the injured Ramsinhbhai Bhikhubhai Varu. 2. As per charge exh.4, it was alleged against the appellant that on 10.8.1999 at about 2:30 in the afternoon in the sim of village Madhupur, he gave Axe blows to the son of the complainant causing serious injuries. 3. Complainant Bhikhubhai Arjanbhai-PW1, father of the injured Ramsinhbhai, was examined at exh.9. He stated that when the incident took place he was at Junagadh. He was informed that his son Ramsinh was beaten by the appellant with an Axe. He had therefore, lodged complaint which is produced at exh.10. His son had received injuries on the forehead and on the neck. 4. Kanabhai Lakhmanbhai-PW2 and Arjanbhai Jagmalbhai-PW3 were the Panch witnesses to the panchnama of collection of clothes of the appellant and recovery of Axe from him. They however, turned hostile. 5. Injured Ramsinhbhai Bhikubhai Varu-PW9 was CR.A/422/2005 3/7 JUDGMENT examined at exh.22. In his deposition, he stated that on the date of incident, he was at his farm. Accused No.1 i.e. the present appellant had told him that his cattle had entered the field which the accused were cultivating. He thereupon approached the appellant. The appellant had thereupon given one Axe blow near the left eye on the forehead and another on the left side of his neck. He had started bleeding and had left the place. He found Naranbhai on his motorcycle. He was taken by Naranbhai on the motorcycle. Somewhere on the way, he lost consciousness and regained his consciousness in Talala hospital. From there he was sent to Rajkot for further treatment. He stated that it was present appellant who had given blows. 5.1 In the cross examination, he denied the suggestion that he had encroached on the land of the appellant and that because of the enmity, he was filing a false case though he had received injuries during the accident. 6. Naranbhai Lakhabhai-PW11 was examined at exh.27. All he stated was that he had shifted injured Ramsinhbhai to hospital. Other than that, he does not know anything about the incident. Injured was coming from Prachi road and therefore, had taken him to Gundhran from where he took him to the hospital by rickshaw. CR.A/422/2005 4/7 JUDGMENT 7. Dr. Tejasbhai Jethabhai Vegda-PW13 was examined at exh. 40. He had treated Ramsinh at the Community Health Centre, Talala on 10.8.1999. He had found CLW of 2cm x ½ cm skin deep on the forehead and one wound of 8cm x 4cm muscle deep on the left side of the neck. He was of the opinion that if timely treatment was not available, the patient could have died. 8. Rameshchandra Bhikamdas Nimavat-PW12 was examined at exh. 30. He was the investigating officer. He described the manner in which the investigation was carried out and stated that Axe and bloodstained clothes of the accused were recovered at the instance of accused. He had also produced FSL report which indicated presence of blood of A+ group from the clothes of the accused, from the Axe recovered and soil collected by the police from the scene of incident. 9. Prosecution based their case on the above evidence. 10.From the above evidence, it can be seen that there was ample evidence on record to establish that the appellant had given two Axe blows to the injured Ramsinh. There is no reason to describe the testimony of the injured eyewitness Ramsinhbhai Bhikubhai Varu-PW9. On the date of incident as per this witness, he was grazing his CR.A/422/2005 5/7 JUDGMENT cattle on his farm. The appellant complained about the cattle entering the field which the appellant was cultivating, thereafter appellant gave two Axe blows to Ramsinh, one on the forehead and another on the neck. Ramsinh was shifted to hospital by Naranbhai Lakhabhai-PW11 which also corroborate the later events. 11.Dr. Tejasbhai Jethabhai Vegda-PW13 also found two injuries on Ramsinh corresponding to the blows which Ramsinh described in his deposition. He also stated that such injuries could be caused by sharp side of the Axe. Additionally, the police had also seized bloodstained clothes of accused as well as soil from the scene of incident. Both carried bloodstain marks. Though use of weapon Axe mudammal article recovered from the appellant remains somewhat under doubt, since Ramsinh stated that this is not the Axe with which he was given blows but there being other overwhelming evidence on record to establish the guilt of the appellant, the said factor in isolation would not demolish the prosecution version. 12.In the result, I find no infirmity in the conviction recorded on the learned Judge in the impugned order. 13.Question of sentence however, remains CR.A/422/2005 6/7 JUDGMENT 14.From the injury described by Doctor, it can be seen that the injury on the forehead of the witness was not really serious. Cut was only skin deep. Injury on the left side of the neck of the witness which was muscle deep and also otherwise serious in nature. However, the appellant has been convicted for offence punishable under Section 326 of the Indian Penal Code. It is not stated that he had criminal antecedence. The quarrel was on account of cattle of the witness entering the field of the appellant. 15.Considering all these aspects of the matter and also considering the fact that learned Judge imposed substantially heavy fine of Rs. 20,000/- and compensated the injured to the extent of Rs. 15000/-, I find that substantive sentence is required to be reduced to some extent. 16.Considering all these aspects of the matter, though conviction of the appellant is required to be confirmed, substantive sentence is required to be reduced. 17.In the result, appeal is disposed of in following terms : 1. Conviction of the appellant for offence punishable under Section 326 is confirmed. CR.A/422/2005 7/7 JUDGMENT 2. His sentence, however is reduced to three years of rigorous imprisonment. 3. Direction for payment of fine of Rs. 20,000/- and compensating the injured to the tune of Rs. 15,000/- from the said amount remains unaltered. 4. Default sentence also is not disturbed. 18. Appeal is disposed of in above terms. (Akil Kureshi,J.) (raghu)