CR.A/747/2007 1/10 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 747 of 2007 For Approval and Signature: HONOURABLE MR.JUSTICE MD SHAH ========================================================= 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 ? ========================================================= AMICHANDJI POPATJI THAKORE - Appellant(s) Versus STATE OF GUJARAT - Opponent(s) ========================================================= Appearance : MR HEMANG R RAWAL for Appellant(s) : 1, MR LR PUJARI, APP for Opponent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE MD SHAH Date : 11/09/2008 ORAL JUDGMENT 1. I have heard learned advocate Mr.Hemang Rawal, who is appointed by the High Court Legal Aid Committee to represent the cause of the appellant- accused as well as learned APP Mr.L.R.Pujari for the respondent State. CR.A/747/2007 2/10 JUDGMENT 2. By the present appeal, the appellant- orig.accused has challenged the judgment and order dated 30.12.2006 passed by the learned Addl.Sessions Judge, Fast Track Court, Deesa in Sessions Case No. 101 of 2004 whereby the learned Judge has convicted the appellant-accused to undergo five years' rigorous imprisonment for the offence punishable under Section 307 of IPC; simple imprisonment of one month each for the offences punishable under Section 504 of IPC and 135 of the Bombay Police Act and ordered that all the sentences to run concurrently. 3. Briefly stated, the prosecution case is as under :- 3.1 The complainant Pankhaben is the wife of injured victim Kanchalji Shantiji Thakore and they are residing at village Jadiyali with their children. On 27.1.1004, when they were sleeping, in the early hours i.e. at 3.00 a.m. the present appellant -accused came to their house and started abusing the husband of the complainant under intoxication, in a drunken condition. On hearing this, the complainant asked the appellant as to why he has come there in such a condition. On asking this, the present appellant accused got excited and inflicted Axe blows on the head of complainant's husband Kanchalji Shantiji Thakore. Even one Axe blow was inflicted on the left side of the forehead as well as another blow on the vital part of the head. On receiving the blows, injured Kanchalji fell down. The complainant CR.A/747/2007 3/10 JUDGMENT intervened and her husband was saved and she started shouting. On hearing the shouting, father-in-law, i.e. Shantiji Jumanji and brother-in-law, i.e. Govaji Shantiji of the complainant came to the place of offence and saved injured Kanchalji. The appellant went away from the place of offence using abusive language. 3.2 The injured Kanchalji was taken to the Primary Health Centre, at Dhanera for treatment and thereafter the complaint was lodged by the wife of the complainant with Agathala Police Station which came to be numbered as I-CR No.8 of 2004. The injured was thereafter taken to the hospitals at Palanpur and Ahmedabad respectively. 3.3 The investigation was put in to motion. During the investigation, the Investigating Officer recorded the statement of the witnesses and also drawn the necessary panchnama of the scene of offence, panchnama of discovery of the weapon, i.e. Axe and necessary muddamal was also seized. The muddamal articles were sent to the Forensic Science Laboratory (FSL) for analysis. At the end of investigation, the Investigating Officer filed the charge sheet for the offences punishable under Sections 307 and 504 of IPC and under Section 135 of the Bombay Police Act before the Court of learned Judicial Magistrate, First Class. 3.4 Since the case was triable by the Sessions CR.A/747/2007 4/10 JUDGMENT Court, the same was committed to the Court of Sessions under the provisions of Section 209 of the Cr.PC, wherein it came to be numbered as Sessions Case No. 101 of 2004. The accused pleaded not guilty of committing the office and claimed to be tried. The charge was framed against the appellant-accused and the trial commenced. At the end of the trial, the learned Addl.Sessions Judge, Fast Track Court, Deesa, convicted and sentenced the appellant - accused, as stated in paragraph No.2 of this judgment. 4. The prosecution has examined the following witnesses to prove its case: (1)PW-1 – Complainant Pankhaben Kanchalji Thakore – Exh.9 (2)PW-2 – Injured Kanchalji Thakore – Exh.10 (3)PW-3 – Dr.Shitalben Sudhirbhai Shah -Exh.11 (4)PW-4 – Vasmabhai Nagjibhai Rabari, who has prepared the Panchnama of the scene of offence – Exh.13 (5)PW-6 – Vasmabhai Bhemabhai Thakore, who has prepared the Panchnama of the scene of offence – Exh.17 (6)PW-7 – Panch Raichandji Padmaji Thakore, who recovered the weapon – Exh.18 (7)PW-8 – Shantiji Jumaji, Father of the injured – Exh.22 (8)PW-9 – Sureshbhai Ramabhai Prajapati, who has informed regarding the weapon. (9)PW-10 – Circle Inspector Shri Ishwarji Laxmanji Rabari, who has drawn the CR.A/747/2007 5/10 JUDGMENT map of scene of offence – Exh.26. (10)PW-11 – Witness Govaji Shantiji Makwana – Exh.28 (11)PW-12 – Babudan Hemdan, Police Officer who has registered the complaint of the complainant – Exh.29 (12)PW-13 – Dr.Jayantibhai Dhudabhai – Exh.33 (13)PW-14 – Dr.Rajendrakumar Bhagirathprasad Joshi – Exh.39 (14)PW-15 – I.O.-Babaji Javanji Vaghela- Exh.41. 5. The prosecution also produced the following documentary evidence: (1)Complaint – Exh.42 (2)Panchnama of scene of offence – Exh.14 (3)Recovery Panchnama of muddamal weapon -Exh.20 (4)Medical certificate of C.H.C., Dhanera-Exh.12 (5)Forwarding Note -Exh.43 (6)Medical Certificate of Ahmedabad C.H.-Exh.40 (7)F.S.L.Report - Exh.46 (8)Notification for prohibition of weapons- Exh.24 6. Learned advocate Mr.Hemang Rawal who is appointed by the High Court Legal Aid Committee to represent the cause of the appellant-accused has submitted that as per the evidence of injured witness Kanchalji Shantiji Thakore-PW-2, he was unconscious after receiving injuries while as per the evidence of Dr.Shitalben Shah, when he was brought to the CR.A/747/2007 6/10 JUDGMENT hospital, he was conscious, and preliminary treatment was given. He also submitted that before the Doctor the injured had not given the name of the assailant and that the injured had given the history of vomiting before the Doctor. It is also submitted by him that as per the evidence of complainant-PW-1 – wife of injured Kanchalji Shantiji Thakore, at the time of the alleged incident, the accused came with a stick, whereas she has stated that the injuries were caused by Axe. In his submission, there are major contradictions in the evidence of the witnesses and the trial Court has not considered them and convicted the appellant-accused. 7. Learned APP submitted that the evidence of the injured witness is totally corroborated with the evidence of Doctor, the evidence of complainant-PW-1 wife of injured and also the evidence of FSL report. The evidence of injured witness PW-2 and complainant PW-1 is quite natural, trustworthy and support the case of the prosecution and inspires confidence and therefore, relying upon the same, the trial Court has rightly convicted the accused and the appeal requires to be dismissed. 8. Learned advocate Mr.Rawal took this Court through the evidence of the witnesses as well as the judgment and order passed by the trial Court. The evidence of PW-2 injured Kanjalji Thakore is recorded at Exh.10. As per his evidence before the Court, the incident took place before 2½ years and that too, CR.A/747/2007 7/10 JUDGMENT when he was in his house at about 3.00 a.m.in the early hours. The accused came there in an intoxicated condition and in a drunken position and started abusing the complainant's husband and when the wife of the injured, i.e. complainant asked him not to abuse, the accused got provoked and gave two blows by Axe on the head of complainant's husband. As per the evidence of this witness, the injured became unconscious and thereafter, he was removed to hospital. In cross examination, this witness specifically stated that it is true that in their field, electricity is provided for eight hours and for help, she has shouted. 9. It is not the tendency of the people those who are coming from small and remote villages particularly, when they are related, it cannot be imagined that they will falsely implicate anybody in such a serious crime. As far as the evidence of this witness is concerned, it is quite trustworthy and inspires confidence and totally corroborated with the evidence of PW-3-Dr.Shitalben Shah. She, in her testimony, before the Court, has stated on oath that without police yadi, the injured Kanjalji Shantiji Thakore was brought to the hospital, Primary Health Centre at about 9.30 a.m. and the injured gave the history that at about 3.00 a.m. he received the injuries and since then he was vomiting. As per the evidence of this Doctor, after giving him treatment, the injured was referred to Palanpur Hospital. As per the evidence of this Doctor, both the injuries CR.A/747/2007 8/10 JUDGMENT received by the injured are serious and if immediate treatment is not provided, the patient would succumb to the injuries in nature of ordinary course. The Injury Certificate at Exh.12 proves the evidence of this Doctor. 10. The prosecution has examined PW-13 – Dr.Jayantilal Parmar at Exh.33. As per the evidence of this witness, on 27.1.2004, he was on duty and during this time, the injured was brought to the General Hospital at Palanpur with transfer form (Exh.34). As per the evidence of this Doctor, the injured stated before him the history that he received injuries at about 3.00 a.m. and three injuries were caused with Axe on his head. He was admitted in the hospital and thereafter at around 3.40 p.m. he was referred to the Civil Hospital, at Ahmedabad. The prosecution has also examined PW-14 – Dr. Rajendrakumar Joshi and his evidence is recorded at Exh.39. This witness has also stated on oath that the injured was brought to Civil Hospital with transfer certificate with the history that the injuries caused to the injured were by Axe. As per the evidence of this Doctor, the following injuries were found: (1)On the left side of head, fronto-parietal region, a stitch of 6 cms. in length. (2)On the left side of head, parietal region, a stitch of 6 cms. in length. From the CR.A/747/2007 9/10 JUDGMENT CT Scan of head, on the left side of temporal region of brain, depressed fracture was found. Hemorrhagic contusion was found below the brain and swelling. On X-ray, linear fracture was found on the left side parietal region and temporal fracture of head. As per the evidence of this Doctor, the injured was admitted in the hospital as an indoor patient and then he was transferred to Neurological Department and after giving treatment, he was discharged on 5.2.2004. As per the evidence of this Doctor, the injuries received by the injured were so serious and if immediate treatment is not provided, then the patient will succumb to the injuries, in the nature of ordinary course. PW-1 – Pankhaben, wife of the complainant is examined at Exh.9. Her evidence is also inspiring confidence and totally corroborated with the evidence of the injured person. Merely because she has stated on oath before the Court that when the accused came with stick in his hand is there, but it is not stated by her that the accused has caused injuries with stick. She had deposed that when the accused had inflicted two Axe blows on the head of the injured, she had shouted for help and thereby other relatives came there and the injured was removed to the hospital. Nothing has come out from her cross examination which falsifies her evidence. She denied CR.A/747/2007 10/10 JUDGMENT that there is no light when the incident took place. As per the evidence of this witness, the accused ran away after throwing away the Axe at the place of incident. In Exh.30, which is the complaint given by this witness, no contradiction is found there as well as in her evidence before the Court. When the evidence of the injured is found trustworthy and inspiring confidence and also corroborates with the evidence of medical evidence along with the evidence of the complainant, wife of the injured, it is not required to discuss the evidence of other witnesses. Therefore, on relying upon these witnesses, the Sessions Court has rightly convicted the accused for the offences punishable under Sections 307 and 504 of IPC and Section 135 of the Bombay Police Act. When the injured received such serious injuries, it is but natural that before the Doctor, he may not have given the name of the accused and merely because he has not given the name of the accused before the Doctor, his evidence cannot be discarded. 11. In the result, the appeal is dismissed. (M.D.Shah, J.) Sreeram.