CR.A/321/1994 1/12 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 321 of 1994 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 ? ========================================================= JODABHAI NANUBHAI & 2 - Appellant(s) Versus STATE OF GUJARAT - Opponent(s) ========================================================= Appearance : MR YOGESH S LAKHANI for Appellant(s) : 1 - 3. MR PD BHATTE, APP for Opponent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE AKIL KURESHI Date : 11/01/2008 ORAL JUDGMENT 1. In the appeal, the appellants have challenged a judgement and order dated 25.3.1994 rendered by learned Additional Sessions Judge, Amreli in CR.A/321/1994 2/12 JUDGMENT Sessions case No.62/89. 2. The appellants were the original accused. They were charged with offences punishable under Sections 307, 324 read with Section 34 of the Indian Penal Code. They were convicted and sentenced to rigorous imprisonment for four years and simple imprisonment for three months for the said offences respectively. They were also ordered to pay fine. 3. Prosecution case was that on 3.3.89, at about 7 O' clock in the morning, when one Dayalbhai Kanjibhai was passing in a bullock cart with his wife Champaben in Charmadi village of Babra taluka, Amreli District, appellants Nos. 1 and 2 (i.e orginal accused Nos. 1 and 2 respectively) attacked them with Axe and Stick. They gave Axe and Stick blows to Dayalbhai Kanjibhai. When his wife tried to intervene, she was also given beating. Appellant No.3 original accused No.3 was present there and he was shouting to beat them. Appellant No.1 had an Axe in his hand, appellant No.2 had a Stick. 4. Dayalbhai Kanjibhai-PW1(exh.8) stated that on 3.3.89, he was going in a bullock cart to his field. His wife was also with him. When he came near the field of Mohan Ram, the appellants Nos. 1 and 2 beat him and his wife. Appellant No. 1 gave blows with his Axe and appellant No.2 gave CR.A/321/1994 3/12 JUDGMENT blows with his Stick. The blows were given on the head. Thereafter, some more blows were also given to him with a Stick. He however, stated that appellant No.3 neither gave any blows nor stated anything. He regained consciousness only in Morbi hospital. 4.1 In his cross examination, he stated that he could not clearly identify the accused. He stated that though he could see the face, he could not identify them. He regained consciousness after 15 or 16 days of the incident. When he regained consciousness, police informed him that they had arrested the attackers. Thereupon, he gave their names. 4.2 At the request of learned APP he was declared hostile and he was permitted to cross examine him. In his cross examination by APP, he stated that between the chief examination and beginning of the cross examination, he had entered into a compromise with the accused. He therefore, wishes that accused should be acquitted and, therefore, he conveniently answered in his cross examination to the advocate for the accused. He stated that he had given names of the accused in the police statement correctly. 5. Wife of Dayalbhai Kanjibhai, Champaben-PW2 was examined at exh.10. She though narrated the CR.A/321/1994 4/12 JUDGMENT incident stated that she has not been able to recognize the assailants. 5.1 She was also declared hostile and cross examined by APP. She also admitted that there was a compromise between her and the accused. 6. Gordhanbhai Bhurabhai-PW3 was examined at exh.11. He is the cousin brother of Dayalbhai Kanjibhai. He was Police Patel at Chamarvadi village at the relevant time. He was informed by Nareshbhai, nephew of Dayalbhai Kanjibhai that his uncle has been attacked. He therefore, reached house of Dayalbhai Kanjibhai. He was informed about the incident. The injured were thereafter, taken in an ambulance to Babra hospital. 7. Brother of Dayalbhai Kanjibhai, Jagabhai Kanjibhai-PW4 was examined at exh.13. He stated that he was at home on 3.3.89. One Himatbhai of Babra had come to his house and informed him about Dayalbhai Kanjibhai being beaten up by Bharwards. He stated that while he was on his motorcycle, he saw that one Muljibhai had come in a bullock cart in which his brother and brother's wife were lying in bleeding condition. Dayalbhai Kanjibhai could not speak. His brother Dayalbhai Kanjibhai was unconscious and was bleeding from head and legs. He also thereafter, did not support the prosecution and stated that CR.A/321/1994 5/12 JUDGMENT Dayalbhai Kanjibhai's wife did not given names of the accused, but stated that some two people have beaten them up. 7.1 In his cross examination by APP, he admitted that there was a compromise between his side and the accused and that thereafter, he did not depose against the accused persons. 8. In addition to the above witnesses, the prosecution examined Doctors who had treated Dayalbhai Kanjibhai. Before adverting to medical evidence, it may be noted that the soil from the scene of offence was collected and sent for analysis. Blood soaked clothes of the injured were also sent. All the samples indicated presence of human blood of B+ group. It may also be noted that the weapons were recovered at the instance of the accused persons. However, panchas had turned hostile and did not support prosecution. 9. Dr. Rameshkumar Bachubhai Deshani-PW9(exh.43) was the medical officer at Babra hospital who had first treated Dayalbhai Kanjibhai. He had found that Dayalbhai Kanjibhai had injury on the right leg and he suspected that there would be fracture of tibia and fibula. Skin had been cut open and bone was visible. Similarly, he also noticed an injury on the left leg where skin had been cut open and bone was visible. He CR.A/321/1994 6/12 JUDGMENT also suspected that there would be fracture of tibia and fibula. He had also found one CLW on the nose and an injury on the left side of the forehead. He suspected that there would be a fracture. He found that left eye was swollen and there was suspected fracture in left cheek. 10.Dayalbhai Kanjibhai was thereafter treated at Morbi hospital. Dr.Sukhdev-PW7(exh.29) was the medical officer at Morbi. He had found several injuries including one on the nose and left eye. He found fracture of right tibia and fibula and left tibia and fibula. He suspected fracture on the skull as well as below the eye. 11.Patient was thereafter, treated at Rajkot hospital. Chelshankar-PW10(exh.46) was medical officer at Rajkot civil hospital. He also found similar injuries. He had found that there was fracture of tibia and fibula on both legs. He also spotted injuries on the forehead and near the left eye. 12.Dr. Pravin Amratbhai Desai-PW6(exh.22) was private doctor who had treated the patient. He was working in Shri G.T. Seth Orthopedic hospital at Rajkot. He had also described similar injuries on Dayalbhai Kanjibhai. He had produced certificate of Orthopedic Surgeon based on X-rays at exh.27 which established that there were fractures on left as well as right tibia CR.A/321/1994 7/12 JUDGMENT and fibula. 13.From the above evidence, it can be noticed at the outset that so far as appellant No.3 original accused No.3 is concerned, no definite role was attributed to him by any of the witnesses. Dayalbhai Kanjibhai-PW1 as well as his wife Champaben-PW2 were the only eyewitnesses, did not allege that appellant No.3 either caused any injury or instigated the other accused to inflict any injury on them. Even before the cross examination of Dayalbhai Kanjibhai-PW1 started and the apparent compromise between the two sides took place in the chief examination also, PW1 did not attribute any instigation of appellant No.3. His wife Champaben-PW2 also similarly did not involve this appellant in the entire incident. Conviction of appellant No.3 therefore, is wholly unjustified. Against appellant No.3, there was no evidence to connect him with the incident. 14.Insofar as appellants No.2 and 3 are concerned, however, there was sufficient evidence to believe that they had given Axe and stick blows respectively to injured Dayalbhai-PW1. They have also caused minor injuries to Champaben-PW2, wife of Dayalbhai. 15.As noted earlier, Dayalbhai-PW1 had clearly CR.A/321/1994 8/12 JUDGMENT stated in his deposition that both the accused had assaulted him. Accused No.1 had given Axe blows and accused No.2 had given stick blows. Initially, blows were given on the head and, thereafter, also some more blows were given. Though this witness in the cross examination sought to retrieve his statement in chief and stated to the effect that he was not in a position to recognize the accused, he clearly admitted in his cross examination by APP that he so stated because after the chief examination was recorded and before the cross examination started, there was a compromise between him and the accused. 16.Somewhat similar version is also that of Champaben-PW2. She did not fully support the prosecution case. She also however in her cross examination by APP admitted that she has changed her statement on account of compromise. 17.Under the circumstance, if one looks at other corroborative evidence, it would be apparent that insofar as involvement of appellant Nos. 1 and 2 is concerned, there should be no doubt. Gordhanbhai Bhurabhai-PW3 who was Police Patel and the relative of Dayalbhai-PW1 stated that on the date of incident he was informed about the assault and he had thereafter, rushed to the spot and arranged for shifting of Dayalbhai-PW1 to hospital in an ambulance. Brother of CR.A/321/1994 9/12 JUDGMENT Dayalbhai i.e. Jagabhai Kanjibhai-PW4 also to some extent corroborated the evidence of Dayalbhai in his deposition. He however, in the later portion of his deposition stated that Dayalbhai's wife had not given names of the appellants to him when he had met her. In his cross examination by APP however, he admitted that there was a compromise between the parties and that therefore, he had not given the names of the accused in the deposition. 18.This coupled with the medical evidence of Dayalbhai having received serious injuries would establish that appellants Nos. 1 and 2 had given Axe and stick blows to Dayalbhai in the morning of 3.3.1989. 19.Question however, is what offence did these appellants commit and what should be appropriate offence. 20.It has come on record through medical opinion that none of the injuries received by Dayalbhai could have been caused by an Axe if used from sharp side of the blade. Apparently, therefore, Axe blow was given from the blunt side. In addition thereto, accused also used a stick to commit injuries on Dayalbhai. Considering this fact and considering the fact that majority of the blows were given on lower part of the body and in particular on legs of the injured and CR.A/321/1994 10/12 JUDGMENT that injuries which were not on the vital part of the body were not serious enough to cause death, I am of the opinion that conviction of the appellants under Section 307 of the Indian Penal Code is otherwise also not justified. It can however, not be denied that they committed offence punishable under Section 326 of the Indian Penal Code. They used dangerous weapons to cause grievous hurt. Though learned advocate for the appellants submitted that even Section 326 of the Indian Penal Code would not apply, I am unable to uphold the contention. As noted Dayalbhai had received multiple fractures. He was unconscious for 15 to 16 days. He had received several injuries on the body. Appellants Nos. 1 and 2, therefore, cannot escape liability of causing grievous hurt. Their conviction would therefore, be appropriately under Section 326 read with Section 34 of the Indian Penal Code. 21.Though it is stated that the issues were compromised between the parties long back, it cannot be stated that offence under Section 326 of the Indian Penal Code is not compoundable offence. However, offence is essentially one against the society. Some of the more serious offences are made non compoundable offence by the law. Allowing the appellants to go without any punishment would therefore, neither be appropriate nor permissible to law. At the same CR.A/321/1994 11/12 JUDGMENT time, I have also to bear in mind other factors such as passage of time, fact that the appellants are not stated to be habitual criminals and that parties had tried to settle the disputes amicable and that thereafter, there is no complaint of any recurrence of similar nature. 22.Considering all these aspects of the matter and seeking to balance the conflicting factors following order is passed : 1) The appellants Nos. 1 and 2 to undergo rigorous imprisonment for two years and pay a fine of Rs. 5,000/-(Rupees Five Thousand) each. 2) In case of default of payment of fine, they would undergo simple imprisonment of six months each. 3) Fine that may be deposited shall be paid over to Dayalbhai Kanjibhai-PW1. 4) The appellant No.3 is however, acquitted of charges. 5) Bail of appellant Nos. 1 and 2 stands cancelled. Bail bond of appellant No.3 stands cancelled. 6) Appellants Nos. 1 and 2 shall have time upto 29.2.2008 to surrender. CR.A/321/1994 12/12 JUDGMENT 7) Sentence and conviction under Section 324 read with Section 34 against Appellant Nos. 1 and 2 is not disturbed. Both substantive sentences to run concurrently. 23. With these directions, appeal is disposed of. (Akil Kureshi,J.) (raghu)