CR.A/1601/2003 1/9 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 1601 of 2003 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 ? ========================================================= RAFIKBHAI @ HAKUDI KASAMBHAI JAGMIYA - Appellant(s) Versus STATE OF GUJARAT - Opponent(s) ========================================================= Appearance : MR NN PRAJAPATI for Appellant(s) : 1, MS PUNANI APP for Opponent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE AKIL KURESHI Date : 06/05/2008 ORAL JUDGMENT 1. Appellant is original accused. By impugned Judgment and order dated 15.9.2003 passed by learned CR.A/1601/2003 2/9 JUDGMENT Additional Sessions Judge, Amreli in Sessions Case No.29 of 2003, he was convicted for offences punishable under Sections 324 and 332 of Indian Penal Code. He was sentenced to R.I. for 2 years for both the offences. The sentences were directed to be undergone separately. 2. As per charge Exh.7, it was alleged against the appellant that on 11.4.2003 at 23.15 hours when the police party had gone to arrest the accused, he had attacked them with knife and caused injuries to as many as three persons. He was, therefore, charged with offences punishable under Sections 353, 332, 333 and 307 of IPC. 3. Complainant, Gandabhai Kalabhai, PW-2 was examined at Exh.19. He stated that on 11.3.2003, he was discharging his duties as the City Police Inspector, Amreli. He along with other policemen was petrolling at which time, one Jayantibhai Mohanbhai of Baharpara had informed them that the present appellant and one Ashraf have assaulted Chako @ Vijay Fulchand and the appellant has stabbed him in the CR.A/1601/2003 3/9 JUDGMENT stomach with the knife. The witness and other police persons, therefore, had gone near the house of the accused where he was standing with the knife. When they tried to arrest him, he attacked with the knife and caused serious injuries. He had caused injuries to the witness on his left hand and his head. He had also attacked other policemen, namely, Maganbhai and Dharmendrabhai. He had, thereafter, run away and entered the house of Hussain Musa from where, he was arrested. They took the treatment at Civil Hospital and thereafter, lodged the complaint. 4. Dharmendrarao Prataprao, PW-7, Exh.28 was posted as an Un-armed Police Constable at Amreli at the time of incident. He also narrated the incident in somewhat similar fashion. He stated that the accused had assaulted P.I. Shri Desai with the knife causing injuries on the left hand and on the head. He had also given knife blow to ASI, Maganbhai, and to the witness on his palm. 5. Maganbhai Bhiljibhai, PW-8 was examined at Exh.29. He stated that when they had gone to arrest CR.A/1601/2003 4/9 JUDGMENT the accused, the accused had given knife blows to P.I. Shri Desai and hid himself in the house of Hussain Musa. While trying to arrest him, he had given a knife blow on his right hand and also to Dharmendrarao. 6. Jayantibhai Mohanbhai, PW-9, Exh.30, stated that on 11.4.2003 at about 10.00 O'Clock at night, the accused had come out with the bare knife and was inquiring about Chako @ Vijay Fulchand and stated that he wants to finish Chako. Witness, thereafter, stated the manner in which the accused had assaulted Vijay Fulchand. He also stated that, thereafter, police had to arrest the accused during which the accused had given a knife blow to P.I. Shri Desai and hid himself in the house of Hussain Musa. 7. Dr. Atul Devmurari, PW-1 was examined at Exh.11. He had treated Gandabhai Kalabhai Desai, Maganbhai Bhimjibhai and Dharmesh Prataprai at Amreli Civil Hospital in the night of 11.4.2003. On Gandabhai Kalabhai Desai, he had found one CLW on the head near the right ear. He had found contused wound CR.A/1601/2003 5/9 JUDGMENT on the chest and on the left thumb. He had found that some of the injuries could be caused by sharp cutting weapon such as knife. 7.1 On Maganbhai Bhimjibhai, he has found the contused wound on the right hand finger and on Dharmesh Pratapbhai he had found a wound on right palm. 8. In the present case, the accused examined himself as DW-1 at Exh.43. In his deposition, he stated that he had sign and an application made by his maternal aunt against the police officer. On the date of the incident at about 10.00 at night, when he was returning to his house, one police vehicle stopped near him and from the jeep P.I. Shri Desai, Dharmendra and Maganbhai got down and started beating him. He received fracture due to the beating and lost consciousness. When he regained consciousness, he found himself locked up in the room. He was taken to a doctor by the police but he was threatened that if he lodged any complaint, he would be killed in an encounter. CR.A/1601/2003 6/9 JUDGMENT 8.1 In the cross-examination, he admitted that in the application Exh.59, several other persons besides him had also signed. He had not complained to anyone about being beaten up by Shri Desai. Before the Magistrate also when he was produced, he had not made any complaint. 9. Dr.Arshibhai Sidibhai, DW-2, Exh.53 was the doctor who treated the accused on 12th April, 2003. Upon being asked, the accused had given the history of having fallen down while running. He had received superficial injuries on his head, on the right wrist, on the left wrist, on the left leg and the stomach, etc. He had, however, found fracture and on the hand which was revealed in an X-ray. 10. On the above evidence one has to judge the legality of the decision of the learned Trial Judge. 11. From the evidence on record, it can be seen that there was consistent eye-witness account of several witnesses describing the manner in which when CR.A/1601/2003 7/9 JUDGMENT the police party led by Shri Desai tried to arrest the accused, he attacked them with the knife. This has been clearly stated by the complainant- PW-2, Gandabhai Kalabhai Desai in his deposition at Exh.19. His version was supported by another injured eye- witness Dharmendrarao, PW-7, Exh.28 and Maganbhai, PW-8, Exh.29. There are no major contradictions in the versions given by these witnesses. 12. The eye-witnesses account of the injured eye-witnesses was also supported by Jayantibhai PW-9 Exh.30. He also described the manner in which the police officials had tried to arrest the accused after he had assaulted Chako and the manner in which the accused had stabbed the police officers. 13. Eye-witness account of these witnesses was corroborated by the medical evidence. Dr.Atulbhai Devmurari, PW-1, Exh.11 had treated all the three injured eye-witnesses and found injuries on their bodies which could have been caused by sharp cutting weapon such as knife. CR.A/1601/2003 8/9 JUDGMENT 14. It is true that the defence had succeeded in establishing that most of the panch-witnesses and also PW-9, Jayantibhai had criminal antecedents and the accused had himself had entered the witness box to suggest that he was being falsely implicated on account of his having signed memorandum against the police officer, I, however, do not find that it is possible to discard the consistent and clear eye- witness accounts of several witnesses, noted earlier which get corroboration from the medical evidence also. It is true that the accused himself had received injuries. He, however, did not complain to anyone about being beaten up by the police. Except for a minor fracture on the wrist, the injuries were superficial in nature. He had given the history to the doctor of having fallen down while running. In any case, possibility of his having received injuries during the scuffle when police officers tried to arrest him which he resisted, cannot be ruled out. Under the circumstances, I find that learned Judge committed no error in convicting the accused for offences punishable under Section 324 and 332 of IPC. CR.A/1601/2003 9/9 JUDGMENT 15. Though, the conviction and sentence are required to be upheld, I find that there was no reason to provide that the accused should undergo the sentence consecutively and not concurrently. The offences was part of one single incident during which the accused had caused simple injuries to police officials for which he was convicted for offences punishable under Section 324 and 332 of IPC requiring him to undergo 2 years of R.I. separately. The same would therefore not be appropriate. 16. In the result, conviction and sentence of the appellant are upheld. It is, however, and provided that the sentence shall run concurrently not consecutively. Subject to above modification, appeal is disposed of. (AKIL KURESHI, J.) ashish//