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CR.A/515/2001 24/ 24 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
APPEAL No. 515 of 2001
For
Approval and Signature:
HONOURABLE
MR.JUSTICE A.M.KAPADIA
HONOURABLE
MR.JUSTICE Z.K.SAIYED
=========================================================
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 ?
=========================================================
SOMABHAI
HATHIBHAI DAMOR - Appellant(s)
Versus
STATE
OF GUJARAT - Respondent(s)
=========================================================
Appearance
:
MS
SADHANA SAGAR appointed by Legal Aid Committee for Appellant
MR KC
SHAH APP for Respondent ? State of
Gujarat
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE A.M.KAPADIA
and
HONOURABLE
MR.JUSTICE Z.K.SAIYED
Date
: 26/08/2008
ORAL
JUDGMENT
(Per
: HONOURABLE MR.JUSTICE A.M.KAPADIA)
1. Challenge
in this appeal filed under Section 374 of the Code of Criminal
Procedure (‘the Code’ for short) is to the correctness of the
judgment and order dated 20.6.2001 rendered in Sessions Case No. 296
of 2000 by the learned Additional Sessions Judge, Panchmahals
District at Godhra by which the sole appellant/accused (‘the accused’
for short) has been convicted for the offences under Sections 307 and
452 of the Indian Penal Code (‘IPC’ for short) and sentenced to
suffer RI for three years and fine of Rs.500/- i.d., SI for 15 days
for the offence under Section 307 IPC and SI for six months and fine
of Rs.500/- i.d.., SI for 15 days for the offence under section 452
IPC.
2. The
prosecution case has disclosed from the FIR and unfolded during
trial is as under:
2.1. P.W.2,
Nisharbhai Hakimbhai has lodged a complaint before Khanpur Police
Station wherein inter alia he has alleged that he is running a
grocery shop. Their old shop and house are at village Udava. His
brother Mustak is doing business there.
The
day before lodging of the complaint, he came to the house at Udava
from the shop at Morkhakhara at about 6 O’clock. His mother
Saberaben, brother Mustak, Mustak’s wife Rizvana and their son
Shahrukh were at home. They were sleeping after supper in night at
home. At that time the front door of his house was knocked at about
01:30 at night. His mother got up and asked and it was said, ‘I am
Soma Hathi and Beedis are to be taken’. Due to fear the door was not
opened at night. The knocking at the door was continued and then the
door was opened. At that time all were got up. As soon as the door
was open, Damor Soma Hathi, Raman Natha and Pratap Natha of Udava
rushed in the house. There were scythes in the hands of Soma Hathi
and Raman Natha and they were speaking abuses against mother-sister
and saying ‘where is the old man? Bring him out and he is to be done
away with’. On hearing so, Mustak told ‘my father is at Shhera and
not at home’. They became excited and Some Hathi Damor gave a scythe
blow from his hand on the head of Mustak’s four years old son
Shahrukh and the head was broken. The boy fell down. Raman Natha gave
scythe blow on the hand of Mustak and there was a scar on the palm.
The articles of the shop were got scattered. Thereafter they three
came out of the house by shouting and went towards the road. As
nothing was available in the night, they started in a bus at 6 O’
clock in the morning for going to Lunavada and gave treatment to
Mustak and his son who were referred to Godhra Civil Hospital wherein
they are admitted. On hearing about the incident by his relatives, he
went to the police station with Shaikh Wahidbhai and Imranbhai and
lodged the complaint.
2.2. The
aforesaid complaint is registered vide CR No.61/2000 before Khanpur
Police Station initially against three persons. Pursuant to the
registration of the complaint, investigation was started and during
the course of investigation, panchnama of scene of offence was drawn,
muddamal dharia was recovered from accused Somabhai Hathibhai Damor
and the injured were sent to hospital for treatment, statements of
witnesses were recorded and at the end of investigation, as
sufficient evidence was found against the accused Somabhai Hathibhai
Damor charge sheet came to be filed against him for commission of the
offence under sections 307, 452, 324, 504, 506 (2) and 114 IPC in the
Court of learned JMFC Lunavada.
2.3. As
the offence under Section 307 is exclusively triable by a Court of
Sessions, the learned JMFC Lunavada committed the case to the Court
of Sessions, Panchmahals District at Godhra.
2.4. The
learned Additional Sessions Judge, Panchmahals District at Godhra
(‘the trial court’ for short) to whom the case was made over for
trial framed the charge against the accused for commission of the
offences as alleged in the charge sheet.
2.5. To
prove the culpability of the accused, prosecution has examined 14
witnesses, i.e., complainant, injured witness, other witnesses,
etc., and relied upon their oral testimonies.
2.6. To
bring home the charge against the accused, the prosecution has also
produced a number of documents such as complaint, panchnama, medical
certificates, recovery panchnama of dharia, etc., and relied upon the
contents thereof.
2.7. After
recording of the evidence of the prosecution witnesses was over, the
trial court recorded the further statement of the accused under
Section 313 of the Code. The accused denied the case of the
prosecution case in its entirety and stated that he is innocent and
false case has been filed against him. However, he has not led
evidence nor did he examine any witness in support of his defence.
2.8. On
appreciation, evaluation, analysis and scrutiny of the evidence on
record, the trial court came to the conclusion that the prosecution
has successfully established that the accused has inflicted injuries
to witness Mustak and his son Shahrukh and thereby the complicity of
accused for commission of the offence under Sections 307 IPC and 452
IPC is established. On the said finding the trial court recorded
conviction of the accused for commission of the said offences and
sentenced to which reference is made in earlier paragraphs of this
judgment which has given rise to instant appeal at the instance of
the accused.
3. Ms.
Sadhna Sagar, learned advocate appointed by Legal Aid Committee for
the accused, has submitted that there are many contradictions in the
complaint Ex.8 and in the oral testimony of the complainant. There
are also contradictions amongst the witnesses. Initially there were
three persons whose names figured as accused but charge sheet is
filed against one person only and the remaining two persons have been
shown as witnesses which is an inherent defect and therefore the
prosecution case suffers from lot of contradictions and therefore
benefit of doubt must be given to the accused. Therefore, according
to her, the impugned judgment and order deserves to be quashed and
set aside by acquitting the accused by giving benefit. She therefore
urged to allow the appeal.
4. Per
contra, Mr. K.C. Shah, learned APP for the respondent – State
of Gujarat has submitted that there is no infirmity or illegality
committed by the trial Court in recording the conviction and sentence
against the accused. Therefore, no interference is called for in the
impugned judgment and order. He has submitted that the investigating
Officer has in terms deposed that there was no evidence against
remaining two persons i.e., Raman Natha Damor and Pratap Natha Damor
and therefore no charge sheet is filed against them and they are
shown as witnesses. Moreover, those two persons have also deposed
against the accused and from their evidence also the presence of
accused is established. From the evidence of the injured eye
witness, complicity of the accused has been duly proved. There is no
contradiction in this regard. Therefore he urged to dismissal the
appeal by confirming the judgment and order passed by the trial
court.
5. This Court has
considered the submissions advanced by Ms. Sadhna Sagar, learned
advocate for the accused and Mr. K.C. Shah, learned APP for the
respondent ? State of Gujarat and perused the impugned judgment and
order. This Court has undertaken a complete and comprehensive
appreciation of all vital features of the case and the entire
evidence on record, which is read and re-read by the learned
advocates of the parties with reference to broad and reasonable
probabilities of the case. This Court has examined the entire
evidence on record for itself independently of the learned Judge of
the trial Court and considered the arguments advanced on behalf of
the accused and infirmities pressed, scrupulously with a view to find
out as to whether the trial Court has rightly recorded the order of
conviction and sentence.
6. To prove the nature
of injuries sustained by the injured witness Mustak and his son
Shahrukh, the prosecution has examined and relied upon the oral
testimony of P.W.8, Dr. Ashish Vinodchandra Jaiswal, Ex.17. He has,
inter alia, testified that on 5.8.2000 he was on duty at Cottage
Hospital, Lunavada and at that time one Mustak and his son Shahrukh
came to him with police yadi. The history given before him was that
Somabhai Hathibhai inflicted dharia blows to them on 5.8.2000 at
night at about 8 P.M. He has examined both of them and also issued
certificates at Exs.18 and 19. So far as certificate at Ex.18 is
concerned, it is in respect of the injury sustained by Mustak. As
per the certificate Mustak had received a cut injury of 7 cm x 1 cm
on the right index and middle finger. So far as Ex.19 certificate is
concerned, the said certificate is in respect of the injury sustained
by Shahrukh and as per the certificate he has also received cut
injury of 12 cm x 3 cm on the forehead and there was also fracture of
skull bone.
7. In view of the
aforesaid evidence and more particularly looking to the seriousness
of the injury received by Shahrukh, according to this Court, if it
would have been inflicted with a little more force, then possibility
of death of the child cannot be ruled out. Therefore, injury caused
to Shahrukh attracts the penal provision of Section 307 IPC and for
causing injuries to Shahrukh and Mustak the accused has committed
house trespass which attracts the penal provision of section 452 and
therefore the prosecution has been able to establish that the
accused has committed the offence punishable under Sections 307 and
452 IPC.
8. Having held that the
injury caused to Shahrukh attracts the penal provision under Section
307 IPC, next question is whether the accused alone is the author of
the injuries to Shahrukh and injured Mustak.
8.1. In this
connection, we shall first refer to the evidence of P.W.1, Ramabhai
Hirabhai, Ex.5. He is a panch witness to the panchnama with respect
to recovery of weapon dharia from the accused having found with blood
stain. He has deposed as per the contents of the panchnama.
Therefore, the prosecution has successfully established the recovery
of weapon from the accused.
8.2. The prosecution
thereafter has examined and relied upon the oral testimony of P.W.2,
Nisharbhai Hakimbhai, Ex.7. He is the complainant. He has inter alia
deposed that at the time of incident he was at Morkhakhara and on
the next day when he came to know about the injuries sustained by his
brother and nephew, he went to Cottage Hospital, Lunavada and met
them. They informed that the accused Somabhai Hathibhai came
yesterday night and knocked at the door demanding beedi and match
stick but he did not give money and went away. He was having a
dharia and a can of kerosene with him and thereafter he again came
back. He set the room on fire and they raised shouts. As his brother
opened the door, the accused inflicted a dharia blow on his hand and
also on the head of his nephew. He has given complaint in this
regard. He has identified the signature on the complaint.
8.3. In his
cross-examination he has also admitted that at the time of lodging
complaint, he was not in a fit and proper mental state and he has
wrongly stated that he was present at the time of incident but in
fact he was not present. He has also admitted that in the complaint
he has stated that Raman Natha and Pratap Natha were present with
dharia and they also inflicted injury on Mustak and Shahrukh and this
was stated in the complaint as per the information received by him
from his brother. He has admitted that Raman Natha is a head strong
person and therefore he could not open his shop.
8.4. On reappraisal of
his oral testimony, it is seen that though in the complaint Ex.8 the
complainant had given names of Raman Natha and Pratap Natha, in his
oral testimony he has not testified anything against them. He has
admitted that at the time of lodging the complaint he was not in a
fit and proper state of mind. He has also admitted that he was not at
all present at the time of the incident.
8.5. The prosecution
has thereafter examined and relied upon the evidence of P.W.3, Mustak
Hakimbhai, Ex.9. He has inter alia testified that the incident had
taken place on 5.8.2000 at 1.30 at night. The accused came to his
house in company of Raman Natha and Pratap Natha and they were having
dharia with them. Soma Natha asked to open the shop as he wanted
Beedi. At that time Raman Natha inflicted blows with dharia and
thereafter Soma Natha inflicted dharia blow on the head of his son.
He has not stated anything about Pratap Natha having inflicted any
injury to him or his son.
8.6. The prosecution
has thereafter examined and relied upon the oral testimony of P.W.4,
Kankabhai Rupabhai, Ex.10. He has inter alia testified that at the
time of incident he was at his residence. Mustak has shouted for him
and therefore he went there. He saw the accused with dharia. He asked
the accused why he was quarrelling. The accused told him that Mustak
has not given Beedi to him and thereafter he told Mustak to give him
beedi and Mustak gave him Beedi. Thereafter Mustak told him that the
accused has given him dharia blow and he has given dharia blow to his
son also.
8.7. The prosecution
has thereafter examined and relied upon the evidence of P.W.5,
Saberaben Salimbhai, Ex.11. She is the mother of injured Mustak and
grand mother of injured Shahrukh. At the time of incident she was
awaken and the accused came to her house for beedi. He was having
dharia and a can of kerosene. He ran away and again he came back.
Thereafter he has set fire near the door with kerosene. Thereafter
the accused inflicted blow to his son Mustak and her grand son
Shahrukh.
8.8. The prosecution
has thereafter examined and relied upon the evidence of P.W.6,
Soniben Nathabhai, Ex.12. She is the mother of Raman Natha and Pratap
Natha. She has stated that the police have come to arrest Raman Natha
and Pratap Natha as their names were there in the complaint but as
the villagers assembled there told that they were not there at that
time of incident, they were not arrested and no charge sheet is filed
against them. She has not seen the incident of inflicting injury by
the accused to Mustak and his son Shahrukh.
8.9. The prosecution
has thereafter examined and relied upon the evidence of P.W.7,
Ramanbhai Nathabhai, Ex.13 and P.W. 10, Pratap Natha, Ex.23. Their
evidence is identical. They have stated that they were informed by
their mother Soniben that the accused is standing near the house of
Mustak and therefore both of them should go there and save Mustak and
therefore they went there. When they went there to save Mustak they
saw that the accused had broken open the gate of house of Mustak and
on the door he had set fire and the accused had inflicted dharia blow
to Mustak and to his son Shahrukh.
8.10. All the above
referred to witnesses were cross-examined at length by the learned
advocate for the accused but nothing substantial could be brought out
which would impeach the credibility of their evidence.
8.11. On reappraisal of
their evidence, it is clear that through inadvertent mistake, the
complainant had given names of Raman Natha and Pratap Natha in the
complaint as assailants along with Somabhai Hathibhai Damor but in
fact they were not the assailants and they came at the scene of
incident to rescue Mustak upon the persuasion of P.W.6, Soniben,
their mother. In fact they were not present there. The Investigation
Officer during the course of investigation found that the complainant
has falsely named Raman Natha and Pratap Natha as assailants along
with the accused Soma Hathi and therefore not only charge sheet was
not filed against them but they were shown as witnesses and they in
terms deposed as to what had happened at the time of incident and
deposed that Soma Hathi was the assailant. In the medical certificate
issued by P.W.8, Dr. Ashish Vinodchandra Jaiswal, has recorded that
Mustakbhai, the injured witness, who is also the father of injured
Shahrukh, has stated that Soma Hathi is the assailant. P.W.4,
Kankabhai, Ex.10, who came to the house of injured Mustak on hearing
shouts has in terms stated that at that time Soma Hathi was present
at the house of Mustak and when he inquired Mustak as to why he is
making quarrel, he told that Mustak was not giving beedi to him.
Thereafter when he asked Mustak about the incident, Mustak informed
him that Soma Hathi inflicted dharia blows and caused injuries to him
and his son Shahrukh. P.W.5, Saberaben, Ex.11, who is mother of
Mustak and grandmother of Shahrukh, has also deposed that Soma Hathi
inflicted injuries to her son and grandson with dharia. The
complainant has also in his deposition stated that he has given names
of Raman Natha and Pratap Natha as assailants as told by his brother
but in his deposition, he has not stated anything against Raman Natha
and Pratap Natha. Therefore, from the over all evidence on record, it
is clear that the real assailant of Mustak and Shahrukh is Soma Hathi
and none else and therefore, we find that the trial court has reached
to the right conclusion that Soma Natha is the person who has
inflicted injuries to Mustak and Shahrukh.
8.12. In view of the
aforesaid state of affairs, the contention of Ms. Sadhna Sagar,
learned advocate for the accused that in the complaint along with the
accused, names of two other persons, Raman Natha and Pratap Natha
were given but no charge sheet came to be filed against them and
therefore benefit of doubt must be given to the accused and he may be
acquitted, has no substance. So far as the witnesses are concerned,
they are consistent so far as the injury caused by the accused to
both the victims. Injured Mustak tried to implicate Raman Natha as
the assailant who has inflicted injury on his hand. But looking to
the medical certificates issued by P.W.8, Dr. Ashish Vinodchandra
Jaiswal, before whom Mustak had the opportunity to first disclose the
names of assailants, it is seen that Mustak has named only Soma Hathi
as the assailant. In addition to this, as per the evidence of P.W.4,
Kankabhai also Mustak told him that Soma Hathi had inflicted injuries
to him and his son. Moreover, when Kankabhai came running to the
house of Mustak, he saw only Soma Hathi at his house and neither
Raman Natha nor Pratap Natha was present there. As per the complaint,
Soma Hathi, Raman Natha and Pratap Natha were assailants but
investigating officer has recovered dharia from Soma Natha only. If
as per the complaint all the three assailants had inflicted injuries,
there could have been more than one injury each on both the injured
victims. But the record shows that only one injury each was sustained
by both the injured persons. Therefore, this Court finds that the
statement made by Mustak in his deposition about the involvement of
Raman Natha in the assault is nothing but a figment of his
imagination and the trial court has rightly not believed the said
part of his deposition. Therefore, the submission made by Ms. Sadhna
Sagar for giving benefit of doubt to the accused and acquitting him
of the offences with which he was charged, contains no merits and
hence it is rejected.
9. In view of the
clinching and satisfactory evidence of the prosecution witnesses,
complicity of the accused in commission of the offence of inflicting
injuries to injured Mustak and his son Shahrukh has been duly
established. Suffice it to say that the trial Court has given cogent
and convincing reason for convicting the accused for commission of
offences under Sections 307 and 452 IPC and Ms. Sadhna Sagar,
learned advocate for the accused could not dislodge the said reasons
given by the trial Court.
10. We find ourselves
in complete agreement with the finding, ultimate conclusion and the
resultant order of conviction and sentence recorded by the trial
Court, as according to us, no other finding, conclusion and order, is
possible except the one reached by the trial Court, which is required
to be affirmed by us.
11. Seen in the above
context, there is no reason or justifiable ground to interfere with
the impugned judgment and order of conviction and sentence passed by
the trial Court, and as the appeal lacks merit, it deserves to be
dismissed by confirming the judgment and order passed by the trial
Court.
12. For the foregoing
reasons, the appeal fails and accordingly it is dismissed.
Resultantly, the judgment and order of conviction and sentence dated
20.6.2001 rendered in Sessions Case No.296 of 2000 by the learned
Additional Sessions Judge, Panchmahals District at Godhra, is hereby
confirmed and maintained.
(A.M.Kapadia,J.)
(Z.K.Saiyed,J.)
…
(karan)
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