{"id":149264,"date":"2010-05-13T00:00:00","date_gmt":"2010-05-12T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/mohmad-vs-unknown-on-13-may-2010"},"modified":"2015-10-25T10:42:12","modified_gmt":"2015-10-25T05:12:12","slug":"mohmad-vs-unknown-on-13-may-2010","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/mohmad-vs-unknown-on-13-may-2010","title":{"rendered":"Mohmad vs Unknown on 13 May, 2010"},"content":{"rendered":"
Gujarat High Court<\/div>\n
Mohmad vs Unknown on 13 May, 2010<\/div>\n
Author: Rajesh H.Shukla,&Nbsp;<\/div>\n
   Gujarat High Court Case Information System \n\n  \n  \n    \n\n \n \n    \t      \n         \n\t    \n\t\t   Print\n\t\t\t\t          \n\n  \n\n\n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t\n\n\n \n\n\n\t \n\nCR.A\/75\/1990\t 1\/ 26\tJUDGMENT \n \n \n\n\t\n\n \n\nIN\nTHE HIGH COURT OF GUJARAT AT AHMEDABAD\n \n\n \n\n\n \n\nCRIMINAL\nAPPEAL No. 75 of 1990\n \n\n \nFor\nApproval and Signature:  \nHONOURABLE\nMR.JUSTICE RAJESH H.SHUKLA\t\t:\tSd\/-\n \n=======================================================\n\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n1\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\tReporters of Local Papers may be allowed to see the judgment ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n2\n\t\t\n\t\t \n\t\t\t \n\nTo\n\t\t\tbe referred to the Reporter or not ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n3\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\ttheir Lordships wish to see the fair copy of the judgment ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n4\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\tthis case involves a substantial question of law as to the\n\t\t\tinterpretation of the constitution of India, 1950 or any order\n\t\t\tmade thereunder ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n5\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\tit is to be circulated to the civil judge ?\n\t\t\n\t\n\n \n\n=======================================================\n\n\n \n\nMOHMAD\nFAROOQ ABDULGAFAR MEMON - Appellant(s)\n \n\nVersus\n \n\nSTATE\nOF GUJARAT - Opponent(s)\n \n\n=======================================================\nAppearance : \nMR\nZUBIN BHARDA with\nMR SALIM M SAIYED for Appellant(s) : 1, \nMR KL PANDYA APP for\nOpponent(s) :\n1, \n=======================================================\n\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\nCORAM\n\t\t\t: \n\t\t\t\n\t\t\n\t\t \n\t\t\t \n\nHONOURABLE\n\t\t\tMR.JUSTICE RAJESH H.SHUKLA\n\t\t\n\t\n\n \n\n \n \n\n\n \n\nDate\n: 13\/05\/2010\n \n\nORAL\nJUDGMENT<\/pre>\n
The
\n\tpresent appeal is directed against the judgment and order dated
\n\t29.12.1989 passed in Sessions Case No.218 of 1987 by the Learned
\n\tAdditional Sessions Judge, Court No.2, Ahmedabad recording
\n\tconviction of the appellant-accused for the offence under Section
\n\t307 of the Indian Penal Code and imposing  rigorous imprisonment for
\n\tfive years.\n<\/p>\n
The
\n\tfacts of the case briefly summarized are that on 26.06.1987 at about
\n\t02:45 a.m. the complainant had gone to his milk cabin, which he was
\n\trunning and when he was taking crate of milk bottle in the cabin,
\n\tthe accused is said to have entered into the cabin and had asked for
\n\tmilk pouch. In response thereto, the victim is said to have stated
\n\tthat it is not available now and then he again started doing his
\n\twork. At that time, the accused is said to have assaulted with knife
\n\tcausing injuries on neck and forehead. Therefore, the victim raised
\n\tshout and started running, however, due to injuries, he fell down
\n\tnear Khodiyar Temple. At that time, one Bhargav Joshi came there and
\n\tvictim is said to have asked him to inform his son stating that the
\n\taccused has assaulted him. In pursuance of that, son of the victim
\n\treached the scene of offence and, thereafter, the victim was taken
\n\tto Shardaben General Hospital for treatment and then, the
\n\tcomplainant was referred to V.S. Hospital for further treatment.\n<\/p>\n
On
\n\tthe basis of said complaint, offence being C.R.No.I-185\/1987 came to
\n\tbe registered with Gomatipura Police Station for the offence under
\n\tSection 307 of the Indian Penal Code. After the investigation was
\n\tover, the chargeheet was filed and as the offence under Section 307
\n\tof Indian Penal Code is exclusively triable by the Court of
\n\tSessions, the learned  Magistrate committed the case to the Court of
\n\tSessions. Thereafter, the Learned Additional Sessions Judge, Court
\n\tNo.2, Ahmedabad framed charge against the appellant-accused for the
\n\toffence under Section 307 of Indian Penal Code and proceeded with
\n\tthe trial.\n<\/p>\n
In
\n\torder to bring home the charge leveled against the accused, the
\n\tprosecution has examined several witnesses including the complainant
\n\t(son of the victim), victim himself, panch witnesses, Medical
\n\tOfficer of V.S. Hospital, Investigating Officer etc. The prosecution
\n\thas also produced several documentary evidence in support of its
\n\tcase including panchanama of recovery of weapon knife and panchnama
\n\twith regard to seizure of cloth of the victim.\n<\/p>\n
After
\n\tthe recording of evidence of the prosecution witnesses was over, the
\n\tLearned Additional Sessions Judge recorded further statement of the
\n\taccused persons under Section 313 of the Code of Criminal
\n\tProcedure, 1973.  In his further statement, the accused has denied
\n\tthe charge leveled against him. The accused has stated that he has
\n\tbeen falsely implicated due to political rivalry.\n<\/p>\n
After
\n\thearing the learned Public Prosecutor as well as the learned
\n\tAdvocate for the defence, the learned Additional Sessions Judge,
\n\tCourt No.2, Ahmedabad convicted the accused for offence under
\n\tSection 307 of Indian Penal Code and sentenced him as stated above.\n<\/p>\n
It
\n\tis this judgment and order, which has been assailed in the present
\n\tAppeal on the grounds set out in detail in the memo of the Appeal
\n\tinter alia stating that the trial Court has failed to appreciate the
\n\tmaterial and evidence on record in its true perspective. It is also
\n\tcontended that the Learned Sessions Judge has misread the material
\n\tand evidence and has failed to appreciate that the prosecution has
\n\tfailed to examine several important witnesses. Similarly, Bhargav
\n\tJoshi, P.W.No.6, Exh.25 in his testimony has not supported the
\n\tprosecution case and has been declared hostile. It is also contended
\n\tthat the trial Court ought to have appreciated that the victim is a
\n\tsocial worker and leader of one community and having connections
\n\twith a political party, whereas the accused is belonging to other
\n\tcommunity and there was communal tension. Therefore, the tendency
\n\tfor the false implication cannot be overlooked. It is further
\n\tcontended that there are material contradictions in the testimony of
\n\tthe prosecution witnesses. It is also contended that
\n\tthe testimony of Medical Officer as well as medical evidence does
\n\tnot disclose that the injuries received by the victim were not
\n\tserious and, hence, it would attract Section 308 of the Indian Penal
\n\tCode and not of offence under Section 307 of the Indian Penal Code.\n<\/p>\n
Learned
\n\tcounsel, Mr.Bharda for the appellant-accused referred to the
\n\ttestimony of P.W.No.1 viz., Sanjay Madhukar Kapase, Exh.13, who is
\n\tson of the victim and submitted that as stated by him,
\n\tthere used to be a quarrel and, therefore, the accused has been
\n\tfalsely implicated. Learned counsel, Mr.Bharda further emphasized
\n\tthat he was informed by one Bhargav Joshi and, hence, he rushed to
\n\tthe scene of offence, where he found the victim (father) lying in a
\n\tpool of blood. He admitted that he has not seen the incident. He
\n\tfurther admitted that throughout he was with the victim (father) and
\n\this health was good. Learned counsel, therefore, submitted that if
\n\the was conscious and the health was good then, ingredients of
\n\tSection 307 of the Indian Penal Code would not be attracted and,
\n\ttherefore, he has been falsely implicated due to communal
\n\tdisharmony.\n<\/p>\n
Learned
\n\tcounsel, Mr.Bharda has also referred to the testimony of P.W.No.2
\n\tviz., Madhukar Dattatrey (victim), Exh.14 and submitted that he has
\n\tstated that when he saw the accused, he did not feel any fear and
\n\tafter stating that the milk pouch is not available, he was doing
\n\twork of bringing milk crate in the cabin, at that time, the assault
\n\tis made by the accused. Learned counsel, Mr.Bharda submitted that he
\n\thas stated that he had heart attack and paralysis whereas the
\n\tcomplainant has stated that throughout, he was with the victim and
\n\the was not serious. He, therefore, submitted that it would suggest
\n\tabout the discrepancy in the evidence of the prosecution witnesses.
\n\tLearned counsel further submitted that the victim himself has stated
\n\tthat when he fell down due to injuries near Khodiyar Temple, he was
\n\tunconscious. It is also admitted that there was communal tension at
\n\tthe time of incident. Therefore, learned counsel, Mr.Bharda
\n\tsubmitted that there is no other evidence except the testimony of
\n\tthe victim suggesting involvement of the accused and the possibility
\n\tof false implication cannot be overlooked.\n<\/p>\n
He
\n\thas also referred to the testimony of P.W.No.3 viz., Babubhai
\n\tDevrajbhai (Panch Witness) at Exh.19 and submitted that as stated by
\n\tthis witness, he was called for the purpose of preparing discovery
\n\tpanchnama, meaning thereby, a particular panch witness was selected
\n\tand, therefore, his evidence with regard to discovery of weapon is
\n\tnot reliable. He also submitted that the discovery panchnama at
\n\tExh.16 is made for discovery of the muddamal weapon (knife), which
\n\tis having a blood stain, however, there is no FSL Report confirming
\n\tthat the blood stain has matched with the blood group of the victim.
\n\tLearned counsel, Mr.Bharda submitted that stated that the victim is
\n\tthe active social worker of the area and had contested election of
\n\tthe Municipal Corporation. He has also stated that there was
\n\tcommunal tension. Therefore, the learned counsel, Mr.Bharda
\n\tsubmitted that very panchnama with regard to discovery of weapon
\n\talso raises doubt as he has stated that it was made near Noor Mahel
\n\tHotel whereas the accused is said to have shown weapon from urinal.\n<\/p>\n
Learned
\n\tcounsel, Mr.Bharda also referred to the testimony of P.W.No.4 viz.,
\n\tBabubhai Devrajbhai, Exh.19, who is also panch witness of scene of
\n\toffence and submitted that this panch witness has stated that son of
\n\tthe victim (P.W.No.1) has shown the place of offence and on that
\n\tbasis, the panchnama of scene of offence was made. Whereas the
\n\tP.W.No.1 has stated in his testimony that he was with the victim
\n\tthroughout and, therefore, he could not have been there at the time
\n\tof making panchnama of scene of offence. He, therefore, submitted
\n\tthat there are material contradictions in the evidence of
\n\tprosecution witnesses. He also referred to the panchnama as well as
\n\twitness for that purpose.\n<\/p>\n
He
\n\talso referred to the testimony of P.W.No.5 viz., Amarsinh Motisinh
\n\t(Police Constable) at Exh.21, who recorded the vardhi at Exh.22 and
\n\tsubmitted that if the complainant was with his father (victim), he
\n\tcould not have been there at the time of making panchnama of scene
\n\tof offence. Further it was submitted that there is discrepancy with
\n\tregard to time. For that, it was submitted that P.W.No.4, Panch
\n\tWitness stated that he was informed at 03:45 whereas the vardhi at
\n\tExh.22 refers to the time at 04:45 and, therefore, such panchnama is
\n\talso not reliable.\n<\/p>\n
Learned
\n\tcounsel, Mr.Bharda referred to and relied upon the testimony of
\n\tP.W.No.6 viz., Bhargav Joshi at Exh.25, who is stated to have seen
\n\tthe victim immediately after the incident and had also informed the
\n\tson of the victim and submitted that this witness has not supported
\n\tthe prosecution case and has been declared hostile.\n<\/p>\n
Mr.Bharda
\n\tfurther submitted that Dr.Chimanbhai  Bhojyabhai (P.W.No.7, Exh.27),
\n\twho treated the victim, has clearly stated that initially the
\n\tvictim-patient was treated at Shardaben General Hospital in the
\n\temergency ward and, thereafter, he was shifted to V.S. Hospital. He
\n\texamined the victim and issued injury certificate at Exh.30. He
\n\tfurther submitted that this witness has stated that he cannot
\n\tdefinitely say that the injuries found on the victim could be caused
\n\twith muddamal knife. He further submitted that there is some
\n\tinterpolation with regard to date in the certificate.\n<\/p>\n
Learned
\n\tcounsel, Mr.Bharda has also referred to the testimony of Dr.Hemant
\n\tMohanbhai Shroff (P.W.No.8, Exh.34), who examined the victim in
\n\tfirst place and issued injury certificate at Exh.35. He referred to
\n\tthe injury certificate and submitted that though the injuries are
\n\tthere, the victim is said to be conscious. Therefore, such injury
\n\tcould not be considered as serious injuries. He further submitted
\n\tthat if the injuries were serious, the victim could not have been
\n\tconscious. Therefore, learned counsel, Mr.Bharda submitted that if
\n\tthe injuries were serious, the doctor or the I.O. should have
\n\tthought it fit of recording dying declaration, therefore, it raises
\n\tdoubt about the injury caused to the victim.\n<\/p>\n
Learned
\n\tcounsel submitted that the P.W.No.11 viz., Govindsinh Raysinhbhai
\n\tChavda (Investigating Officer) at Exh.42 in his testimony has stated
\n\tabout some other place. Whereas the P.W.No.3, Exh.15 states that
\n\turinal is at the distance of 1 ft. from the hotel whereas other
\n\twitnesses have stated that it is at a distance of 300 ft.\n<\/p>\n
Learned
\n\tcounsel, Mr.Bharda, therefore, submitted that considering the nature
\n\tof offence and also the fact that there is lapse of about 20 years,
\n\tthe present appellant-accused may not be sent to jail again and the
\n\tbenefit under the Probation of Offenders Act may be given or the
\n\tconviction can be altered to Section 308 of the Indian Penal Code.
\n\tHe also submitted that considering the circumstances that the
\n\taccused has settled in life having children, he may not be punished
\n\tand sent again to the jail and benefit under the provisions of the
\n\tProbation of Offenders Act may be given.\n<\/p>\n
In
\n\tsupport of this submission, the learned counsel, Mr.Bharda has
\n\treferred to the judgment reported in 2005 Cri.L.J. 2785, 2006(5) SCC
\n\t396, 1988(4) SCC 551 and 1981(1) SCC 447.\n<\/p>\n
Learned
\n\tA.P.P., Mr.K.L. Pandya referred to the testimony of P.W.No.7, Exh.29
\n\t(Medical Officer) and submitted that he has referred to the injuries
\n\tand has categorically stated that the Injuries Nos.1 and 2 were on
\n\tthe neck and were serious injuries, that too, on the vital part of
\n\tthe body. He also submitted that it is required to be considered the
\n\tforce with which the assault would have been made by the accused.
\n\tLearned A.P.P. also referred to P.W.No.2, Exh.14 (victim) and
\n\tsubmitted that he is the injured wetness and has clearly stated as
\n\tto what had transpired. Again he submitted that there could not be a
\n\tfalse implication as it can be seen from the testimony of P.W.No.1,
\n\tExh.13, who has stated that as the accused was miscreant person and
\n\thad threatened that the cabin will not be permitted to be operated
\n\twould suggest about the past quarrel and the fact that he was a
\n\theadstrong person. This would also reflect about the motive. Learned
\n\tA.P.P. submitted that the weapon knife has been discovered under
\n\tpanchnama at Exh.16, which was having blood stain and, therefore,
\n\tthe panchnama, Exh.16 would also corroborate the prosecution case
\n\tand version of the victim suggests that he was assaulted with the
\n\tknife. He again emphasized referring to the medical evidence that
\n\tsuch injuries could be caused with muddamal knife. He also referred
\n\tto FSL report and submitted that FSL also corroborates the
\n\tprosecution case as the blood stains are found on the muddamal knife
\n\tthough it may not have been decided as regards the matching with the
\n\tgroup of the victim. Learned A.P.P., therefore, submitted that
\n\tconsidering the facts and circumstance and evidence on record, the
\n\timpugned judgment recording conviction is just and proper.\n<\/p>\n
In
\n\trejoinder, the learned advocate, Mr.Bharda submitted that in view of
\n\tthe fact that since the incident is of the year 1987, more than 20
\n\tyears have passed and the accused has settled in his life,
\n\tconviction may not be confirmed and he may not be again sent to
\n\tjail, otherwise, it would affect his family. It is, therefore,
\n\tsubmitted that the benefit under the Probation of Offenders Act may
\n\tbe given.\n<\/p>\n
\tIn
\n\tview of the rival submissions, it is required to be considered
\n\twhether the present appeal can be entertain or not.\n<\/p>\n
\tIt
\n\tis required to be appreciated that the victim is alive and he has
\n\tbeen examined at Exh.14, who has stated as to what has transpired.
\n\tHe has specifically stated that when he was placing crate of milk in
\n\tthe cabin, the accused is said to have demanded one milk pouch,
\n\twhich was not available. Therefore, the victim had stated that it is
\n\tnot available. However thereafter, when the victim again came from
\n\toutside with milk crate, he was assaulted with knife on his neck and
\n\tface and injury certificate at Exh.35 would corroborate his say
\n\tabout the injuries, which are on the vital part of the body,
\n\tparticularly Injuries Nos.1 and 2 are such that it could cause
\n\tdeath. Initially the victim was taken to Shardaben General Hospital,
\n\twhere he was treated in the Emergency Ward and after giving some
\n\ttreatment, he was shifted to V.S. Hospital as stated by P.W.No.1,
\n\tson of the victim. The testimony of Dr.Heman Mohanbhai Shroff,
\n\tP.W.No.8 in his testimony at Exh.34 has stated that the victim was
\n\tbrought to Shardaben General Hospital and he had examined and has
\n\talso stated that the Injuries Nos.1 and 2 are sufficient in ordinary
\n\tcourse of nature to cause death. He has also stated that if
\n\timmediate treatment was not made available to the victim, he could
\n\thave died.\n<\/p>\n
\tThe
\n\tsubmission made by the learned counsel, Mr.Bharda that if he was
\n\ttreated in the Emergency Ward and the injuries were such, he could
\n\tnot be conscious whereas P.W.No.1, complainant-son of the victim has
\n\tstated that the victim was conscious and on the basis thereof, he
\n\thas tried to submit that the injuries were not serious, cannot be
\n\taccepted in light of the injury certificate at Exh.35 and the
\n\ttestimony of the P.W.No.8, Exh.34. Dr.Hemen Shroff, P.W.No.8 in his
\n\ttestimony at Exh.34 has further stated about the injuries in detail
\n\tand has also stated that he was treated in emergency ward with
\n\toxygen and life saving drug was also administered. He also stated
\n\tthat while giving history, the victim has stated about the assault
\n\tmade by other side with sharp weapon. He has also stated that he had
\n\tinformed other doctors about the serious condition of the victim. At
\n\tthe same time, he has also stated that the victim was conscious
\n\tthough he has clarified that there was no deficiency in the system
\n\tand there was no paralytic symptoms. Thus, medical evidence clearly
\n\tstates that the injuries were serious and at the same time, the
\n\tvictim was conscious. Therefore, due to such injuries, he was
\n\ttreated as indoor patient in emergency ward and merely because he
\n\thad not suffered with heart attack or paralysis would not suggest
\n\tthat the injuries were not serious as sought to be canvased by the
\n\tlearned counsel, Mr.Bharda that as he was conscious, injuries could
\n\tnot be serious is misconceived.\n<\/p>\n
\tAnother
\n\tMedical Officer of the V.S. Hospital, P.W.No.7 in his testimony at
\n\tExh.29 has stated that he was serving in the V.S. Hospital and the
\n\tvictim was referred from Shardaben General Hospital after primary
\n\ttreatment and he had examined and again he has referred to injury,
\n\ton the basis of which, he had issued injury certificate at Exh.30.
\n\tHe has denied the suggestion that such injury could not be caused
\n\twith knife and he has also stated that the injuries were such that
\n\tif the treatment was not given immediately, it could have caused
\n\tdeath and the injuries were sufficient in ordinary course of nature
\n\tto cause death. The injury certificate issued by him at Exh.30 also
\n\trecords the history of assault by knife. Therefore, submission that
\n\tthe injuries were not serious and it would not attract the
\n\tprovisions of Section 307 of the Indian Penal Code cannot be
\n\tbelieved. Section 307 of the Indian Penal Code refers to attempt to
\n\tmurder and the nature of injuries caused by which type of weapon
\n\t(knife), the force with which the injury is inflicted and the part
\n\tof the body on which the injury is caused couple with the fact that
\n\tthe successive blows are given itself would be sufficient to draw
\n\tinference that such injuries were inflicted with knife with an
\n\tintention and knowledge that it was likely to cause death. It is not
\n\tnecessary that such injuries, which have been inflicted and which
\n\tare capable of causing death cannot be said to be serious merely
\n\tbecause the victim has survived. What is required to be considered
\n\tis the intention or knowledge with which the act was done
\n\tirrespective of the result and also the manner in which such act is
\n\tdone. In other words, act of inflicting successive blows on the
\n\tvital part of the body with a weapon like knife would certainly
\n\tattract the provisions of Section 307 of the Indian Penal Code and
\n\tmerely because the victim has survived, the seriousness would not be
\n\treduced.\n<\/p>\n
\tAnother
\n\tfacet of arguments made by the learned counsel, Mr.Bharda referring
\n\tto the testimony of the witnesses that there are discrepancies in
\n\tthe testimony of the prosecution witnesses much emphasizing on the
\n\taspect that the P.W.No.1, complainant, son of the victim has stated
\n\tthat he was throughout with the victim whereas the panchnama
\n\tregarding the scene of offence drawn at his instance. Therefore, the
\n\tsubmission that he could not have pointed out the scene of offence
\n\tor his testimony is not reliable is required to be considered.
\n\tThough P.W.No.1, son has stated that he was throughout with the
\n\tvictim during the treatment does not necessarily suggest that he
\n\tcould not have gone out for a work for some time. Therefore, it is
\n\tnot necessary to draw inference that he was with the victim, which
\n\twould imply that he could not have shown the place of offence and he
\n\tcould not have gone out for work as both may be possible that he
\n\tcould have throughout with the victim-father and for some time, he
\n\tcould have at the place of offence for the purpose of preparing of
\n\tpanchnama of scene of offence. It is required to be mentioned that
\n\the was informed by Mr.Bhargav Joshi and, thereafter, he reached the
\n\tscene of offence where he saw victim-father lying in a pool of
\n\tblood. Therefore, it is natural that he could have shown the scene
\n\tof offence where the father was lying. In any view of the matter the
\n\tvictim has survived and in his testimony at Exh.14, he has stated
\n\tabout the same and the panchnama refers to the same place,
\n\ttherefore, there is no discrepancy or material contradiction.\n<\/p>\n
\tFurther,
\n\tthe submission made with much emphasize referring to the time of the
\n\tvardhi at Exh.22 refers to the time for 04:15. It is also stated by
\n\tthe P.W.No.5 that he had sent vardhi at 04:15 and the copy of vardhi
\n\tis produced at Exh.22. However, submission that if the vardhi is
\n\tsent at 04:15, the panch witness, who is present for preparing the
\n\tpanchnama of scene of offence, could not have remained present
\n\tbefore that. It is required to be mentioned that the panch witness
\n\thas stated so, which would prima-facie suggest about some
\n\tdiscrepancy as regards to the time but that would not be much
\n\trelevant as the witness may not have the exact memory with regard to
\n\tthe time. A useful referecne can be made to the observation made by
\n\tthe Hon’ble Apex Court in a judgment reported in 1991 Cr.L.J. 1269
\n\thas observed that  It is settled law that while appreciating the
\n\tevidence of a witness the Court should not attach much importance to
\n\tminor discrepancies which do not shake the basic version of the
\n\tprosecution and should ignore the errors due to lapse of memory or
\n\tignore those statements made by a witness under fear or confusion
\n\tfrom imagination on the spur of moment.\n<\/p>\n
\tTherefore,
\n\tsuch cannot be said to be material contradiction.\n<\/p>\n
\tAnother
\n\tsubmission made by the learned advocate, Mr.Bharda that if the
\n\tinjuries were serious, the doctor or Investigating Officer thought
\n\tit fit to record the dying declaration, however, he has not sent any
\n\tvardhi to record dying declaration or wrote any yadi for calling the
\n\tExecutive Magistrate. Further, he also referred to the testimony of
\n\tP.W.No.3, Exh.15 (panch witness of discovery panchnama) and
\n\tsubmitted that he has stated that the weapon was discovered at the
\n\tinstance of accused from urinal and he has stated that the panchnama
\n\twas drawn at Noor Mahel Hotel and the urinal is at a distance of 1
\n\tft. from the hotel. Whereas in the testimony of P.W.No.11, Exh.42,
\n\tI.O., he has stated that the distance between Hotel and urinal is
\n\tmore than 300 ft. Though this has been emphasized, it is required to
\n\tbe read in the evidence as a whole. The testimony of P.W.No.3,
\n\tExh.14 if read as a whole clearly states that this witness
\n\taccompanied by other Constables had gone in a jeep via Noor Mahel
\n\thotel via Hussain Chawk to the urinal. He stated that the jeep was
\n\tstopped there and the accused had taken out knife from urinal. This
\n\titself would suggest that if the distance is of 1 ft., it would not
\n\trequire traveling by jeep. Therefore one sentence that he has stated
\n\tthat it is away at 1 ft., there appears to be some apparent mistake.
\n\tHe has stated that the panchnama was prepared at Noor Mahel Hotel
\n\tand I.O., P.W.No.11 has also stated that the panchnama was prepared
\n\tby sitting on the bench outside Noor Mahel Hotel. Therefore, there
\n\tis no contradiction or discrepancy in the testimony of prosecution
\n\twitnesses as sought to be canvassed.\n<\/p>\n
\tAnother
\n\tfacet of argument that though the victim was found lying near temple
\n\tin a pool of blood, no sample of blood from the place of incident is
\n\ttaken. Similarly, control sample is not also taken. This aspect
\n\twould not have much relevance in light of the testimony of the
\n\twitness. Victim himself corroborates the version of P.W.No.1, who
\n\treached the scene of offence. The testimony of Bhargav Joshi,
\n\tP.W.No.6, Exh.25 also cannot be said to have not supported the
\n\tprosecution case at all. He has also stated in his testimony that
\n\twhen he was going to the house from his cabin, he saw one person
\n\tlying there badly injured and he had instructed him to inform his
\n\tson. Therefore, though he has been declared hostile, his entire
\n\ttestimony cannot be discarded. He has corroborated the prosecution
\n\tcase to the extent that the P.W.No.1 was informed by him and on the
\n\tbasis of this information, the P.W.No.1 reached the scene of
\n\toffence, where the victim was lying and he had taken him to the
\n\thospital. Therefore, there is no substance in the submission
\n\tcanvased by the learned counsel, Mr.Bharda.\n<\/p>\n
\tLast
\n\targument which has been made by the learned counsel, Mr.Bharda that
\n\tinstead of recording conviction under Section 307 of the Indian
\n\tPenal Code, the conviction could have been
\n\trecorded for the offence under Section 308 of the Indian
\n\tPenal Code is required to be considered. Though
\n\tsuch submission has been made, Section 308 of the Indian
\n\tPenal Code is required to be considered with
\n\tSection 307 of the Indian Penal Code.\n<\/p>\n
\tThe act referred to in Section 308 of the Indian
\n\tPenal Code is different from Section 307 of the Indian Penal
\n\tCode. It is evident from Section 307 of the Indian Penal Code that
\n\tit is an act of attempt to murder, which reflects the intention and
\n\tknowledge and knowing that death could be caused by the act, the act
\n\tis committed though the victim may survive. Whereas Section 308 of
\n\tthe Indian Penal Code refers to the act committed with an intention
\n\tand knowledge that such act could result into death but it does not
\n\trefer to murder. In the circumstances, considering the material and
\n\tevidence on record, the court is not inclined to accept this
\n\tsubmission.\n<\/p>\n
\tThe
\n\talternate argument made by the learned counsel, Mr.Bharda that the
\n\tbenefit under the provisions of Probation of Offenders Act may be
\n\tgiven, for which, he relied upon the judgments reported in (2006)5
\n\tSCC 396 and (1981)1 SCC 447, cannot be accepted in light of the
\n\tdiscussion made hereinabove with regard to manner in which the
\n\toffence is committed and the injuries were caused. It is required to
\n\tbe mentioned that admittedly there were serious injuries caused on
\n\tthe vital part of the body with successive blows, the medical
\n\tevidence also supports the prosecution case and it is also evident
\n\tfrom the testimony of P.W.No.8 that if the treatment was not given
\n\tin time, it could have been fatal. Therefore, merely because the
\n\tvictim has survived, the accused cannot be given any benefit.
\n\tFurther, though at that time, he had survived but after such
\n\tinjures, as it is stated by the victim in his testimony at Exh.14
\n\tthat he suffered with heart attack and paralysis. Therefore, merely
\n\tbecause the victim survive, seriousness of the offence would not be
\n\treduced and it cannot be considered lightly.\n<\/p>\n
\tThe
\n\tprovisions of Section 360 of the Code of Criminal Procedure provides
\n\tfor order to release on probation of good conduct or after
\n\tadmonition and also specific provisions in the Probation of
\n\tOffenders Act is required to be considered in the facts and
\n\tcircumstances of a given case in light of the punishment and offence
\n\talleged. This aspect has been considered by the trial court also
\n\twhile considering the punishment and has rightly discussed for an
\n\toffence under Section 307 of the Indian Penal Code. Such benefit
\n\tcannot be granted as it would send wrong message in the society. It
\n\tis required to be mentioned at this stage that time and again, the
\n\tApex Court has also made observation with regard to the
\n\tproportionality of the punishment and avoiding leniency, which may
\n\thave the counter effect in the society as wrong message go in the
\n\tsociety. The Hon’ble Apex Court in a judgment reported in AIR 2008
\n\tSC 2314 has observed that  Therefore, undue sympathy to impose
\n\tinadequate sentence would do more harm to the justice system to
\n\tundermine the public confidence in the efficacy of law and society
\n\tcould not long endure under such serious threats. It is, therefore,
\n\tthe duty of every court to award proper sentence having regard to
\n\tthe nature of the offence and the manner in which it was executed or
\n\tcommitted etc. <\/p>\n
In
\n\tthe result, the present appeal stands dismissed. The
\n\tjudgment and order dated 29.12.1989 in Sessions Case No.218 of 1987
\n\tby the learned Additional Sessions Judge, Court No.2, Ahmedabad
\n\trecording conviction of the accused for the offence under Section
\n\t307 of the Indian Penal Code and imposing rigorous imprisonment for
\n\tfive years is hereby confirmed.\n<\/p>\n
\t\t\t\t\t\t\tSd\/-\n<\/p>\n
(RAJESH
\nH.SHUKLA, J.)<\/p>\n
\/patil<\/p>\n
\t\t   \u00a0\u00a0\u00a0<\/p>\n
\t\t   Top<\/p>\n","protected":false},"excerpt":{"rendered":"
Gujarat High Court Mohmad vs Unknown on 13 May, 2010 Author: Rajesh H.Shukla,&Nbsp; Gujarat High Court Case Information System Print CR.A\/75\/1990 1\/ 26 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 75 of 1990 For Approval and Signature: HONOURABLE MR.JUSTICE RAJESH H.SHUKLA : Sd\/- ======================================================= 1 Whether Reporters of Local Papers […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[16,8],"tags":[],"class_list":["post-149264","post","type-post","status-publish","format-standard","hentry","category-gujarat-high-court","category-high-court"],"yoast_head":"\nMohmad vs Unknown on 13 May, 2010 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/mohmad-vs-unknown-on-13-may-2010\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Mohmad vs Unknown on 13 May, 2010 - 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