CR.A/98/1995 1/7 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 98 of 1995 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 ? ========================================================= DAMJI RATNABHAI PATEL - Appellant(s) Versus STATE OF GUJARAT - Opponent(s) ========================================================= Appearance : MR PM THAKKAR for Appellant(s) : 1, MR PD BHATTE, APP for Opponent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE AKIL KURESHI Date : 22/04/2008 ORAL JUDGMENT 1. The appellant original accused by impugned judgement and order 13.1.1995 passed in Sessions Case No. 28/1990 was convicted for offence CR.A/98/1995 2/7 JUDGMENT punishable under Section 324 of the Indian Penal Code and sentenced to rigorous imprisonment for one year and order of fine of Rs. 500/-. In default of payment of fine, he was directed to undergo imprisonment for one month. 2. As per charge, exh.1, it was alleged that on 13.12.1989 at about 8 O' Clock in the evening, the appellant was prevented from passing through the field of Bhikhabhai in Rajpara village. The present appellant original accused no.1 and another accused Chandu Ratna being annoyed by such prevention assaulted the complainant Vinubhai when he was sitting at the shop of Dhirubhai Vallabhbha. The appellant accused No.1 gave two knife blows to the complainant on his back. Accused No.2 Chandu Ratna tried to give a blow with his Axe. The complainant however, evaded the blow. Both were thus charged with offences punishable under Section 307 read with Section 34 of the Indian Penal Code. 3. The complaint Vinubhai Arjan-PW1 was examined at exh.7. He stated that he was engaged for irrigating field of Bhika Jagani. At about 5 O' Clock in the evening when he was at the filed of Bhika Jagani, the appellant had passed by. The complainant had stopped him from passing. He had thereafter, gone home. After having dinner at about quarter to 8, he had gone to the village for buying bidies. He had gone to the shop of CR.A/98/1995 3/7 JUDGMENT Dhirubhai Vallabhbha. When he was sitting there, one Bhikhabhai had also come there. At that time the accused No.1 came there. Accused No.1 attacked him with stick. Accused No.1 i.e. the present appellant stabbed him twice with the knife on his back. People present there saved him from further beating. He was taken to Junagadh Government Hospital. He was operated upon for removing the blade of knife which had remained in his body. 4. Vajubhai Timbabhai Rajpara-PW2 was examined at exh.9. He was also present at the shop of Dhirubhai Vallabhbha when the incident took place. He also stated that the appellant had given two knife blows to the complainant on his back and that the blade of knife had broken, part of which could be seen from outside. 5. Bhika Jagabhai-PW3 was examined at exh. 10. He had employed the complainant for irrigation work in his field. He also claims to be an eyewitness. He stated that the appellant had given two knife blows to the appellant. 6. The blade of knife was extracted by the Doctor by performing operation on the complainant. The other part of the knife namely the grip was discovered by the police at the instance of the appellant. Panchnama was also drawn which was proved through the evidence of the Investigating CR.A/98/1995 4/7 JUDGMENT Officer. 7. One Bhikhubha Manji-PW4 also claiming to be an eyewitness was examined at exh. 15. He also stated that he had seen the appellant giving knife blows to the complainant on his back. He had fetched a Taxi to remove the complainant to the hospital. 8. Injury certificate was admitted by defence and exhibited exh.19. It showed incise wound of 1 ½“ x ½” muscle deep on the back portion of the complainant and another incise wound of 1 ½” x 2” where the knife blade was still present. The complainant was treated as an indoor patient from 13.12.1989 to 20.12.1989. 9. Javetkhan Ahmedmiya Sindhi-PW6, Investigating Officer was examined at exh. 18. 10.From the above evidence on record, it can be clearly seen that so far as involvement of the appellant in the incident is concerned, there can hardly be any doubt. The complainant himself was an injured eyewitness. In clear terms, he stated that the incident took place since he had prevented the appellant from passing the filed which he was irrigating. He stated that the appellant had given two knife blows to him on the back. This was supported by several eyewitness including Vajubhai Timbabhai Rajpara- CR.A/98/1995 5/7 JUDGMENT PW2, Bhika Jagabhai-PW3 and Bhikhubha Manji- PW4. Injured was treated at the Government hospital, was operated upon and knife blade which had broken and remained imbedded in the body taken out. Injury certificate was admitted which also showed two knife blows on the back of the complainant. 11.In view of the above account of several eyewitnesses and the corresponding injury found on the body of the complainant and also in view of the discovery of broken knife at the instance of the appellant, there is hardly any possibility of arguing that the appellant had not committed the alleged act. His conviction therefore, for offence punishable under Section 324 of the Indian Penal Code was perfectly justified. 12.It may be noted that for offence punishable under Section 324 of the Indian Penal Code, punishment prescribed is maximum three years or fine. Learned trial Judge imposed rigorous imprisonment of one year and fine of Rs. 500/-. 13.Learned advocate Shri Joshi appearing for Thakkar Associates vehemently submitted that with passage of time and no complaint of involvement of the appellant in any other criminal activity, he be granted probation even if simultaneously the fine is to be enhanced to CR.A/98/1995 6/7 JUDGMENT compensate the victim. 14.Learned APP Shri Bhatte however, submitted that offence is proved beyond reasonable doubt and that learned Judge therefore, passed the order which calls for no interference. 15.Having found that the appellant was rightly convicted for the said offence, I however, find that the incident took place way back in the year 1989. Nearly 19 years have passed since then. The appellant was of relatively young age of 25 years then. There is no allegation that he himself is involved in any other criminal case though through out trial and appeal he has been enjoying bail. 16.To direct the appellant to serve out the substantive sentence at this stage would therefore, not be appropriate. This being his first offence, provision of Section 360 of the Criminal Procedure Code would also apply. 17.Considering all these aspects of the matter, I find that even while enhancing fine and sustaining the substantive sentence, the appellant is required to be granted probation. 18.In the result, appeal is disposed of in following terms : CR.A/98/1995 7/7 JUDGMENT 1) Conviction of the appellant for offence under Section 324 is upheld. 2) Substantive sentence of rigorous imprisonment of one year is also upheld. 3) He is however, given benefit of probation and will not have to serve out the sentence. 4) He shall however, execute bond of good behaviour for a period of one year. This may be done latest by 31.5.2008. In case, the appellant breaches the bond, he shall have to serve out the sentence. 5) Fine is enhanced to Rs. 25000/-(Rupees Twenty Five Thousand) which shall be deposited before the trial Court latest by 30.6.2008. Upon such deposit, the amount shall be paid over to the complainant. In case of default, of payment of fine, the appellant shall have to serve out simple imprisonment of six months. (Akil Kureshi,J.) (raghu)