CR.A/1176/1993 1/18 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 1176 of 1993 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 ? ========================================================= DEEPAK SURESH DHAKATE - Appellant(s) Versus STATE OF GUJARAT - Opponent(s) ========================================================= Appearance : Ms. Bharti Rana for MR ANIL S DAVE for Appellant(s) : 1, Mr U R Bhatt, Addl.PUBLIC PROSECUTOR for Opponent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE MD SHAH Date : 29/09/2008 ORAL JUDGMENT 1. This appeal is directed against the judgment and order of conviction and sentence dated 27.10.1993 passed by the learned Addl.Sessions Judge, CR.A/1176/1993 2/18 JUDGMENT Mirzapur, Ahmedabad (Rural) at Ahmedabad in Sessions Case No.147 of 1991, by which the learned Sessions Judge convicted the present appellant for the offences punishable under section 307 and he was sentenced to suffer six years Rigorous Imprisonment with fine of Rs. 2,000/-, in default, one year's simple imprisonment. 2. The present appellant-original accused No.1 and other 3 accused persons were charge sheeted for offences punishable under sections 307, 323, 504 and 114 of IPC and section 135 (1) of the Bombay Police Act by Adalaj police Station. After submission of the charge sheet, the learned Addl.Sessions Judge, Ahmedabad Rural framed charge at Exh.9 against the accused persons. At the end of the trial, the present appellant-original accused no.1 was convicted for offences under section 307 and he was sentenced to suffer six years' rigorous imprisonment with fine of Rs.2,000/-, in default, one year's simple imprisonment. The trial court has also passed order that the accused is also entitled to benefit of set off under section 428 of the Criminal Procedure Code. CR.A/1176/1993 3/18 JUDGMENT As far as original accused No.2 to 4 are concerned, they were acquitted of the charges levelled against them. The State has not preferred any acquittal appeal. But the present appellant-accused preferred appeal against the said judgment and order before this court. The facts of the case of the prosecution in brief are as under: 3. The incident in question took place on 6.4.1991 at about 21.30 hrs. One Nilam Shukhlal Chauhan was residing with her father Shukhlal Chauhan in block No.A/14 of ONGC colony. Shukhlal was working in ONGC. Sister of Nilam, Martina got married with one Gragory Solomon. It is alleged that on the day of the incident, at about 8.30 p.m., Gragory and his brother Philips came to the house of Nilam to return the iron which he had taken from the house of Nilam. After having tea, when Philips was about to leave the house, Nilam told him that one person named Deepak (present appellant) was teasing and harrassing her and also insisting to marry him. He also tries to talk to her whenever she passes the CR.A/1176/1993 4/18 JUDGMENT way. Nilam thus, told Philips to scold Deepak in this regard. On saying so by Nilam, Philips asked her to show the house of the accused Deepak. So, Nilam took Philips to the place where the house of the accused Deepak situated. Her brother Pavankumar also accompanied them to the house of Deepak. When they reached near the house of accused no.1, accused No.1 was standing near the lamp post. Nilam showed them where Deepak was standing. It is also alleged that Gragory asked accused No.1 why he harasses his sister-in-law. On asking this question, accused no.1 got angry and provoked and at that time accused No.2,3 and 4 also reached and accused no.1 to 3 started beating Gragory. Philips came to rescue of his brother and at that time, accused no.3 and 4 caught him and gave kick blow and fist blow on Philips. It is also alleged that during the scuffle, accused 3 pushed down Gragory and accused no.1 took out knife from his pocket and gave knife blows on abdomen and on chest of Gragory. He was profusely bleeding and due to the hue and cry, large number of people gathered there and accused had run away from the spot. Thereupon, Pavankumar called a CR.A/1176/1993 5/18 JUDGMENT rickshaw and Gagory and Philips were removed to Civil Hospital. Philips lodged a complaint Exh.26 before police and on the basis of the complaint, offence was registered and Investigating Officer, after drawing panchnama of the scene of offence, recorded statement of relevant witnesses. During the investigation, blood-stained clothes worn by Gragory were recovered by drawing panchnama and also made arrangement for recording dying declaration of the injured Gragory by the Executive Magistrate. Accused No.1 also lodged complaint in Adalaj police station before the Investigating Officer, PSI, Ramaji Devaji Chavda alleging that Philips Solomon and Gragory had beaten him and offence under section 323 of IPC was registered and panchnama of accused no.1 to 3 was drawn. During the investigation, medical certificate of injured was obtained and after drawing recovery panchnama, relevant muddamal weapons were sent for analysis to the FSL and also collected FSL report and thereafter, on 30.6.1991, charge sheet was filed for the above referred offences. 4. The learned Judicial Magistrate First Class has passed order to commit the said case to Sessions CR.A/1176/1993 6/18 JUDGMENT Court, as the said court has no jurisdiction to try the case under section 209 of the Criminal Procedure Code. The learned Sessions Judge and framed charge Exh.9 for the above referred offences. The accused denied the charges levelled against them and they claimed to be tried. To prove its case, the prosecution has examined the following witnesses: 5. PW 1, Govindbhai Jivabhai, Circle Inspector at Exh.16, PW 2, Philips Solomon, complainant, Exh.25, PW 3, Niranjanbhai Amratlal, PSO, who recorded the complaint, Exh.27, PW 4, Kantibhai Somabhai, Panch witness of scene of offence, Exh.28, PW 5, Vajesinh Kalusinh, Head Constable, who registered the offence Exh.31, PW 6, Ambalal Jethabhai, panch witness Exh.25, PW 7, Narendraprasad Shivprasad, Panch witness Exh.38, PW 8, Bhupendra kumar Rasiklal, panch witness Exh.39, PW 9, injured Gregory Solomon Exh.40, PW 10, Nilamben Shukhlal Exh.42, PW 11, Mahendrasinh Vajubha Exh.43, PW 12, Dr. Kirit kumar Exh. 47, PW 13, Dr. Purushottam Somabhai, Exh.51 and PW 14 Ramaji Devaji, I.O., Exh.54. CR.A/1176/1993 7/18 JUDGMENT 6. After leading oral as well as documentary evidence of the prosecution, further statement of the accused persons under section 313 of the Cr.P.C. was recorded in which all the accused denied all the charges levelled against them stating that false case is filed against them and that they are innocent. 7. After hearing the arguments of the learned APP as well as the learned advocate of the defence and after appreciating and scrutinising the oral as well as documentary evidence on record, the learned trial Judge found the present appellant-accused guilty of the charges framed against him and convicted the present appellant as referred to above and against the said judgment and order, the present appeal has been filed by the appellant. Accused No.2,3, and 4 were acquitted of the charges levelled against them. 8. Heard Ms. Bharti H Rana, learned advocate for Mr Anil S Dave, learned advocate for the CR.A/1176/1993 8/18 JUDGMENT appellant and Mr U.R. Bhatt, learned APP for the State. It is submitted by Ms. Bharti Rana, learned advocate for the appellant that the trial court has not appreciated the evidence in its true perspectives and thus committed error in convicting the accused. It is argued by her that the prosecution has failed to prove that PW 10 Nilamben Shukhlal was harassed by the accused and no motive is shown in committing the crime and by that also the trial court has committed error in convicting the accused. It is submitted by the learned advocate that it has come from evidence that a free-fight has been taken place between the complainant and the accused persons and there was scuffling between both the groups and because of sudden provocation, while exercising the right of self-defence, the knife blow might have inflicted on the abdomen of Gregory. It is also argued by the learned advocate that the accused did not expect the arrival of the prosecution witness i.e. Philips Solomon and Gregory and at the initial stage, the accused was armed with knife at the time of the incident. So it is proved that prosecution witnesses must have come with knife which must have CR.A/1176/1993 9/18 JUDGMENT been kept in their pockets. It is also submitted that the learned Addl.Sessions Judge has not appreciated the right of private defence of the appellant and by that committed error in convicting the accused. 9. Learned APP, Mr U R Bhatt submitted that the evidence of the injury is totally corroborated by the evidence of the Doctor and the injuries received by the injured were sufficient to cause death in ordinary course of nature and so the trial court has rightly convicted the accused for offence under section 307 of IPC and so the appeal deserves to be dismissed. 10. In light of the arguments of the learned advocate for the appellant and the learned APP for the State, the evidence on record has to be discussed. PW 2, Philips Solomon, at Exh.25 who is the brother of the injured Gragory. As per his evidence, his brother Gragory had married daughter of Shukhlal i.e., Nilam Shukhlal before 3 years from the date of the incident. As per his evidence, the CR.A/1176/1993 10/18 JUDGMENT incident took place on 6.4.1991 at about 9.30 p.m. According to him, he and his brother went to the house of Shukhlal for returning an iron and after taking tea with them, they were about to leave the house, PW 10, Nilam came to him and told him that accused Deepak harasses her every day when she passes that way. According to him, he asked Nilam to show the house of the accused Deepak which was situated two minutes away. According to him, he and his brother Gragory, Nilam and her brother Pavankumar proceeded towards the house of Deepak. Nilam showed the house of accused Deepak. According to him, thereupon, Nilam and her brother Pavankumar stayed back there and Philips and his brother Gragory went to the house of Deepak. Deepak was standing in front of the house near the lamp post. According this witness, his brother asked Deepak why he harasses his sister-in-law when she passes that way. On this Deepak got angry and provoked. According to him, during this time, accused No.2, 3 and 4 had also come there and accused No.1 and 3 started beating his brother Gragory. According to the evidence of this witness, when he went to save his brother, accused CR.A/1176/1993 11/18 JUDGMENT No.3 and 4 started beating him also. Thereafter his brother Gragory was pushed down on the ground and accused no.1-Deepak took out a knife from his pocket and gave knife blow on the abdomen as well as on the chest of Gragory. By that time, large number of people gathered there and the accused fled the scene. Pavankumar brought an auto rickshaw and the injured Gragory was taken to hospital. Gragory remained in hospital for 12 days. In the cross examination, this witness denied that after reaching the house of accused Deepak, they asked Deepak to come out as they wanted to talk to him and so Deepak came out of the house and they talked with Deepak. He specifically denied that during the talk, injured Gragory got angry and caused injury to Deepak with knife and so accused Deepak snatched away the knife and Gragory received the injury when he fell down on the ground. From the evidence of this witness, it is proved beyond reasonable doubt by the prosecution that when the incident took place, the accused Deepak was present and Gragory received injuries. The complaint-Exh.26 is proved through the evidence of this witness. CR.A/1176/1993 12/18 JUDGMENT 11. Evidence of PW 9, Gragory Solomon, who received injuries during the incident shows that he, PW 2 Philips, Nilam, brother of Nilam went to the house of Deepak for scolding him as he was harassing Nilam. According to this witness, he and his brother went to Deepak. Nilam showed Deepak who was standing near the lamp post. This witness asked him why he was harassing Nilam whenever she passes that way. According to this witness, Deepak started abusing him and he got angry and provoked and during that time, the other accused persons were also came there and accused Rajendra Jaiswal and Deepak caught him and started beating by giving kick blow and fist blow. According to him, his brother, the complainant, Philips came for his rescue and at that time, accused Rajesh Madhukar and accused Deepak started beating his brother also. Thereupon, this witness fell on the ground and at that time, accused Deepak took out knife from his pocket and inflicted two blows on his abdomen and chest. According to him, upon shouting public gathered there and the accused fled the scene. Thereupon he was removed to CR.A/1176/1993 13/18 JUDGMENT Hospital by rickshaw and he became unconscious and on the next day at about 7 am he regained his conscience. According to this witness, he remained in hospital for 12 days and had to undergo operation. He identified the accused persons before the court. In his cross examination, he admitted that in his statement before the Executive Magistrate, he did not give name of any other accused except accused-Deepak. Nothing has come out from the cross examination which creates doubt about the testimony of this witness. 12. Evidence of Nilam Shukhlal, PW 10 at Exh.42 shows that this witness narrated the same story which was stated by the complainant-Philips and injured Gragory. As per the evidence of this witness also accused no.1-Deepak inflicted knife blow on the abdomen and chest of Gragory. In cross examination, she admitted that she had not made any complaint about harassment by Deepak to her parents before this incident. She, in her cross examination, stated that she did not hear the talk Gragory had with Deepak. But she stated in her cross examination that it was CR.A/1176/1993 14/18 JUDGMENT Deepak who got angry and provoked first. She stated that she heard the arguments and abuses by them. She denied that her brother-in-law, Gragory got angry and took out knife and inflicted and caused injury to Deepak and accused Deepak got injury on his knee. She denied that she was in love affair with Deepak and that her brother-in-law did not like this affair and so he went to Deepak's house. From the evidence of these three witnesses, it is proved beyond reasonable doubt that on the abdomen and chest, injured Gragory received two knife blows, which were inflicted by accused Deepak with knife. 13. Learned advocate for the appellant tried to argue that during the free-fight, while exercising private defence, Gragory must have got knife blow and accused Deepak was also seriously injured and that he has also filed complaint. She vehemently argued that the incident took place near the house of the accused and thus an inference could be drawn that the complainant and Gragory might have come with knife in their pocket to attack the accused. There is no substance in her argument as the accused received CR.A/1176/1993 15/18 JUDGMENT minor and simple injury and those are not so grave which suggests that in his defence, accused no.1 caused injury with knife on injured Philips. It is pertinent to note that complainant-Philips, injured Gragory, Nilam and her brother Pavankumar all went to the house of the accused Deepak and that they were unarmed and no weapons were found from their custody. So from no point of view, it could be believed that the complainant and injured Gregory went to the accused for attacking him. The story put forward by PW 10, PW 2 Philips and Gregory is that Nilam was harassed by accused no.1 and therefore, they went to the house of Deepak for scolding him. If any intention was there to attack Deepak, they would have gone with weapons. 14. According to PW 12, Dr. Kiritkumar, following injuries were found on the injured Gragory Solomon (Exh.48): “(1) Loop of gnt. Sun profounding over (lt) lumber region (2) 3 x 1 x 5 cm clw on (lf) side of chest on pre cordium active blewy not tnt(present) (3) Stribbed wound of 3 x 3 cm (lf) luber CR.A/1176/1993 16/18 JUDGMENT region to loop of bowel protrudiy Exploralory laprolomy (1) Small perforation 0.5 x 1 cm in jajunnt (2) some aspert of hemoperiloment present D-Stab injury chest asd.” 15. Through the evidence of this witness, at Exh.48, the injury certificate was also proved. According to this witness, from the left side, parts of small intestine came out and, thus operation was immediately performed by him on the injured person. As per evidence of this witness, if immediately medical treatment was not provided, there was all possibility of death of this patient. He also said that the injury must have cause with sharp weapon. In cross examination, he denied that it is not possible when during the scuffle if a person falls down on the ground, this kind of severe injuries can be caused on that person. So as per the evidence of this witness, the injury caused on the abdomen was very serious and sufficient to cause death in ordinary course of nature. CR.A/1176/1993 17/18 JUDGMENT 16. This court has also gone through the entire evidence on record and the judgment and order passed by the learned Addl.Sessions Judge. In the opinion of this court, the trial court has minutely scrutinised the evidence and rightly come to the conclusion that accused no.1 caused the injuries with knife on the injured Gragory and rightly held him guilty of the offence punishable under section 307 of IPC. The state has not preferred any acquittal appeal so far as the other accused are concerned. 17. Ms. Bharti Rana, learned advocate for the appellant-accused alternatively submitted that, if the court is not inclined to allow the appeal, taking into consideration the fact that the appellant- accused is young and he has liability to maintain his family and that, after the incident in question, much time has elapsed, a lenient view may be taken for reducing the sentence. The trial court, after taking into consideration this aspect and after taking into consideration the manner in which the incident took place, the nature of offence and the injuries received by the injured, rightly imposed CR.A/1176/1993 18/18 JUDGMENT just and adequate sentence and hence the question of reducing the sentence does not arise. 18. For the foregoing reasons, the appeal is meritless and deserves to be dismissed. This appeal is accordingly dismissed and the impugned judgment and order of conviction and sentence dated 27.10.1993 passed by the learned Addl.Sessions Judge, Mirzapur, Ahmedabad (Rural) at Ahmedabad in Sessions Case No.147 of 1991 are hereby confirmed. The appellant-accused , who is on bail, shall surrender within a period of four weeks from the date of receipt of the writ of this judgment to serve out the remaining sentence. Rest of the judgment and order of conviction and sentence remains unaltered. The bail bonds stand cancelled. [M.D. SHAH, J.] msp