1. The appellant – original accused has filed this Appeal against the Judgment and order of conviction and sentence dated 05.01.2001 passed by the learned Special Judge, Court No.17, Ahmedabad City in Attrocity Criminal Case No.27 of 2000, whereby the learned Special Judge has acquitted other co-accused. Learned Special Judge has acquitted the appellant-accused from the charges under Sections 143, 147, 148, 149, 336 and 307 of the Indian Penal Code and Sections 3(1)(10) and 3(2)(5) of the Schedule Cast and Schedule Tribe (Prevention of attrocities) Act, but, learned Special Judge has held the appellant – accused guilty for the offence under Section 324 of the Indian Penal Code and for the offence under Section 135(1) of the Bombay Police Act and sentenced him to undergo Rigorous Imprisonment for 1 years with fine of Rs.500/- i/d to further undergo simple imprisonment for 15 days.
2. The brief facts of the case of prosecution are that on 04.11.1998 in the Shahpur area children were firing the firecrackers. At that time, at about 8.30 p.m. all the accused went together with deadly weapons like pipe, sticks and sword and assaulted the complainant and witnesses. The accused pelted Stone and also injured the complainant by sword with intention to cause death of the complainant. The accused were knowing the fact that the injured and other witnesses were of Schedule Caste and Schedule Tribe category, even though, they abused them against their caste. In this regard the complainant has filed the complaint before Madupura Police Station vide CR No.288/98.
3. Necessary investigation was carried out by the Police and after completion of investigation the charge-sheet against the accused came to be submitted before the Court of learned Magistrate. As the offence were exclusively triable by the Court of Sessions, the learned Magistrate committed the said case to the Court of Sessions at Ahmedabad. The learned Special Judge framed the charge against the accused. The accused pleaded not guilty to the charge and claimed to be tried.
4. To prove the case against the accused, the prosecution has examined 6 witnesses and also relied upon documentary evidence and at the end of trial, after recording the statement of the accused under Section 313 Cr. P.C., and after hearing the arguments on behalf of the prosecution and the defence, the learned Special Judge held only present appellant – original accused No.2 guilty of the offences and awarded sentence as narrated herein above.
5. Being aggrieved by and dissatisfied with the aforesaid Judgment and order of conviction and sentence the appellant – accused has preferred this Appeal.
6. Heard learned advocate Mr.Vikram Thakore, appearing on behalf of the appellant and learned APP Mr. H.L. Jani on behalf of the respondent – State. I have gone through the Judgment and order passed by the trial Court. I have also considered the documents produced on the record of the case.
7. Learned Advocate, appearing on behalf of the appellant – accused has contended that the discovery Panchanama under Section 27 of the Evidence Act is not proved. Learned advocate Mr.Thakor has vehemently argued that the medical certificate vide Exh.20 was produced before learned Judge, but, medical expert was not examined before learned Judge. He has further contended that in the FSL report no sign of blood on the weapon was found. He has further argued that Panchas of the discovery Panchanama have been declared hostile, therefore the discovery Panchama is not proved.
8. Learned APP Mr.H.L.Jani has contended that from the oral version of the witnesses, like the complainant- Chandrakantbhai Dhanjibhai Vaghela (Exh.27) and witness-Vinodbhai Dhanjibhai Vaghela (Exh.28), the prosecution has proved its case beyond reasonable doubt. He has also contended that the discovery Panchanama under Section 27 of the evidence Act is exhibited and by that discovery Panchanama dangerous weapon was found from the possession of the appellant- accused. He has further contended that the order passed by learned Judge is proper and conviction order cannot be set asided.
9. Heard learned advocate for the parties and perused the judgment and also taken in to consideration the further statement of the accused, recorded under Section 313 of the Cr.P.C. It is true that from the endorsement made on the list of documents (Exh.15) by learned counsel for the accused before learned Judge, all the documents from Exh.16 to 24 were exhibited by the consent of learned defence counsel. It appears from the contents of the discovery Panchanama that the sword was found from the terrace of the house of accused, which is prepared under Section 27 of the Evidence Act. Learned Special Judge has observed in his judgment at Page-18 that there is no reason to disbelieve the evidence of Police Officers, regarding discovery Panchanama, which was prepared as a part of their duty. In my view, learned Special Judge has rightly considered the fact that there is no reason to disbelieve the evidence of the Police Officer, when Police Officer has also identified the Muddamal before the Court and when learned counsel for the accused has endorsed “No Objection” in exhibiting the Panchanama and other documents. The injured persons were totally innocent and the complainant suffered injury by a dangerous weapon. Learned Judge has acquitted present appellant from the charges under Section 143, 147, 148, 149, 336 and 307 of the Indian Penal Code and from the charges under Section 3(1)(10) and 3(2)(5) of the Schedule Cast and Schedule Tribe (Prevention of attrocities) Act, but, convicted present appellant for the offence under Section 324 of the Indian Penal Code and for the offence under Section 135(1) of the Bombay Police Act for the period of 1 year. I have perused the provision of Section 324 of the Indian Penal Code. From the final order of the learned Judge, it also established that the lenient view is taken by the learned Judge. I am in complete agreement with the findings given by learned Special Judge and therefore, sentence passed by learned Special Judge is hereby confirmed.
10. Accordingly, present appeal is dismissed. The judgment and order of conviction and sentence dated 05th January, 2001 passed by the learned Special Judge, Court No.17, Ahmedabad in Atrocity Criminal Case No.27 of 2000 is hereby confirmed. The appellant is on bail. His bail bond shall stand cancelled. The appellant is, therefore, directed to surrender himself before the Jail Authority to undergo remaining sentence, if any, within a period of four weeks form the date of receipt of this order, failing which the trail Court concerned is directed to issue non- bailable warrant against the appellant to effect his arrest. Record and Proceedings, if any, be sent back to the trial Court concerned, forthwith.
..mitesh..
[Z.K.SAIYED, J.]