(Per : HONOURABLE MR.JUSTICE RAVI R.TRIPATHI)
1. The present appeal is filed by the State of Gujarat under Section 378 of the Code of Criminal Procedure being aggrieved by judgment and order dated 26.06.1990 passed by the learned Additional City Sessions Judge, Court No.9, Ahmedabad in Sessions Case No.55 of 1989. Learned Additional City Sessions Judge was pleased to acquit accused Nos.1, 4, 5 and 6 for the offence under Sections 143, 147, 148, 149 read with Sections 307, 323, 324, 325, 326, 395 and 397 of the Indian Penal Code, whereas learned Additional City Sessions Judge was pleased to convict accused Nos.2, 3, 7 and 8 for an offence under Section 323 of the Indian Penal Code. Learned Additional City Sessions Judge was pleased to award them three months' R.I., fine of Rs.200/- and in default, R.I. for 7 days. As on the date of pronouncement of the judgment (26.06.1990), accused Nos.2, 7 and 8 had already gone sentence during trial, they were ordered to be set free forthwith, whereas accused No.3 was directed to surrender to bail and he was ordered to be taken in the custody.
2. The facts of the case are set out by the learned Additional City Sessions Judge in para-1 of the judgment, which reads as under:-
"1. Vide charge -
exhibit-5, in all, 8 accused have been put to trial for commission of offences punishable under Sections 143, 147, 148, 149, read with Sections 307, 323, 324, 325, 326, 395 & 397 of The Indian Penal Code, on the following facts:-
That complainant-Dr.Somnath Ramchandra Varma, residing at 27/388, Bhadreshwar Co.Operative Housing Society Limited, Sardarnagar, Ahmedabad, is practicing in Acupuncture Branch of medical therapy, having his dispensary at Naroda in the city of Ahmedabad. That on 24th October-1988, in order to visit and enjoy a fair held tat Hansol village, the complainant closed his dispensary at about 9-15 p.m. and went to his resident on hos own scooter. According to the complainant, after parking his vehicle just near his residence, he informed children from a distance to get ready for visiting the fair. Waiting out side his residence for his elder son Anil to return from the fair, at that moment, one Popatbhai Thakor, resident of Kotarpur village, i.e., accused No.2 approached him and ironically taunted him as to why he understands himself to be an emperor, but the complainant did not respond. It is also alleged that prior thereto, i.e., on 22nd June 1988, the very person-accused No.2 in collusion with accused No.5-Hardevsing Nemsing, had some quarrels which too, were reported in Sardarnagar Police Station. It is alleged that since then, he was disposed of enmical terms with the accused and was in a mood to take revenge. With that intention, the accused with several other persons, was always assembling near 'Galls' (a stall or shop cabin), since last three weeks prior to the date of commission of the alleged offence and they were waiting for an appropriate opportunity. As the complainant did not respond to the ironical taunts, accused No.2-Popatbhai Savaji, went inside the shop of accused No.5-Hardevsing Nemsing and came out with a scythe (Dharia) i.e. a tool with slightly curved blade on a long wooden pole. Accused No.2 was also accompanied by one-Premjibhai Bhil, an employee of accused No.5 who came with razor-(Astra), i.e. a sharp edged instrument and accused No.7, Benesing came out with a pipe and they started beating the complainant. As a result of raising cries and shouts by the complainant-Somnath Varma, one Mohan Hardevsing Khalsa-accused No.6 also came there with a razor-(Astra). As alleged, accused No.8, Thakor Amraji Dahyaji, armed with a stick, injured the wife of complainant. According to the complainant, after assembling all the accused, accused No.2-Popatbhai Thakor tried to inflict a blow with the scythe-(Dharia) on the neck of complainant, but the complainant tried to resist the blow with his hands. Consequently, the blow fell on the forehead of the complainant, causing him injury. Simultaneously, accused No.4-Premjibhai Bhil attacked with a razor (Astra) and also caused injury on the forehead of the complainant. Accused No.7 Benesing Vaghela gave blows with a pipe on the left elbow and waist of the complainant. Similarly, accused No.6 who is alleged to be armed with razor (Astra), attacked the complainant and caused him injuries on the forehead. According to the prosecution case, the attack was in furtherance with a common intention to kill the complainant. As alleged, accused No.5 Hardevsing was also threatening the complainant since last three days prior to the date of the incident, by saying that he would not allow the complainant to survive in this world. As alleged, accused Nos.1 & 5 were also standing just bear the shop and on seeing the criminal assault, they also made their entry in the incident. Accused No.1-Sitaben, is alleged to have beaten Santoshben, wife of the complainant with fist blow. Similar is the allegation against accused No.5, Hardevsing, who caught hold of the complainant and gave him fist blows on the lips to cause injuries. Accused No.3-Mohanji Thakor, who is alleged to be an employee of accused No.5, also came there with stick and beat the complainant. As a result of cries & screaming, the residents of society as well as the adjoining area,, including one - Rupabhai Sindhi and one - H.P. Brahmbhatt, advocate; assembled there. The said Rupabhai and advocate Mr.Brahmbhatt intervened in the incident and tried to make them free and separate. As alleged, despite their attempt, the accused continued to assault. Thereafter, the accused ran away from the place of offence. According to the complainant, information in respect of the incident was conveyed to the police control room and Santoshben, wife of the complainant also went to the Police Station. With this information, the Police Officer came to the site of offence and removed the injured complainant to the hospital. It is also alleged that during assault, accused No.2, Popatbhai Thakor robbed the complainant of Rs.1000/- lying in his pocket and accused No.4, Premjibhai also robbed him of one 'H.M.T.' watch of blue dial and back belt which was tied on his wrist during assault. The complainant was admitted as an indoor patient in Ward No.E/4 of Civil Hospital-Ahmedabad, whereas his wife was given treatment as an outdoor patient. The Police Officer recorded complaint in Hospital at about 3.00 A.M. On 25.10.1988. On the strength of the complaint, the offence was registered against all the accused vide Crime Register No.222/88 and the complaint was forwarded to the Investigating Officer for further investigation with report under Section 157 of the Criminal Procedure Code......"
3. To prove the case, prosecution relied upon following documentary /oral evidence/s.
Sr.
No.
Particulars Exh.
No.
1. Charges framed 5
2. Statement of accused No.1 6
3. Statement of accused No.2 7
4. Statement of accused No.3 8
5. Statement of accused No.4 9
6. Statement of accused No.5 10
7. Statement of accused No.6 11
8. Statement of accused No.7 12
9. Statement of accused No.8 13
10. List submitted by learned APP containing 15 papers 15
11. Deposition of P.W.No.1-Dr.Virambhai Gebarbhai Chaudhari 16
12. List of muddamal 17
13. Treatment certificate of complainant - Somnath Varma 18
14. Treatment certificate of witness - Santoshkumar 19
15. Deposition of P.W. No.2 - Dr.Somnath Varma 20
16. Deposition of P.W. No.3 - Shri Hasmukhkumar P.Brahmbhatt 22
17. Deposition of P.W. No.4 - Dr.Sindhi 23
18. Deposition of P.W. No.5 - Devendrabhai B.Bharvad 24
19. Panchnama of cloths of the complainant 25
20. Yadi pertaining to muddamal sent to F.S.L.
21. Report pertaining to muddamal sent to F.S.L.
22. Yadi of F.S.L.
23. Report of F.S.L.
24. Notification of Police Commissioner pertaining to Weapon Prohibition 30
25. Map of the place of incident 31
26. Deposition of P.W. No.6 - Keshavlal V.Chavda 32
27. Deposition of P.W. No.7 - Sundarlal V.Sindhi 33
28. Deposition of P.W. No.8 - Prakashbhai G.Sindhi 34
29. Deposition of P.W. No.9 - Pankajbhai R.Nair 37
30. Deposition of P.W. No.10 - Santoshben S.Varma 38
31. Deposition of P.W. No.11 - Police Inspector Shri Ranjitsinh D.Vaja 40
32. Deposition of P.W. No.12 - Police Sub Inspector Shri Kishansinh K.Raghav 41
33. Panchnama of place of incident 42
34. Deposition of P.W. No.13 - Ravindrakumar K.Bhatt 43
35. Deposition of P.W. No.14 - Rupchand D.Gurbani 44
36. Pursis filed by learned PP for closure of evidence 45
37. Pursis filed by learned PP annexing therewith one paper 46
38. Complaint 51
39. Report to register complaint 52
4. Learned APP Mr.L.R.Pujari for the appellant-State submitted that looking to the injuries sustained by the complainant, the learned Additional City Sessions Judge ought to have convicted the accused for an offence under Section 307 of the Indian Penal Code.
5. On careful consideration of the evidence of Dr.Virambhai Gebarbhai Chaudhari - P.W. No.1 - Exh.16, it is seen that he has deposed that the complainant had received as many as seven injuries, of which injury Nos.1 and 3, which were on the left front parietal region and one in the centre of the forehead, were possible with blunt substance like stick or pipe. The Doctor has also opined that these injuries are possible with the back portion of 'dhariya'. So far as injury Nos.5, 6 and 7 are concerned, they are possible by fist and kick blows or by any other blunt substance. So far as injury No.4 is concerned, the same is only in the nature of bruise (contusion wound). So far as injury No.2 is concerned, it was also in the nature of bruise (contusion wound). The Doctor has specifically opined that all the injuries were simple and all of trivial nature, meaning thereby they were superficial.
6. Learned Advocate Mr.N.R.Kodekar for the opponents-accused submitted that it is a settled law that when a person attributes a blow by a particular weapon having sharp cutting edge, it is the presumption that the blow is given with the front portion of such a weapon. He rightly submitted that it is the case of the complainant and also wife of the complainant that the complainant was given blow by 'dhariya' on his forehead and two persons gave blow with 'astra'. No injury in the nature of incise wound is found by the Doctor. That is suggestive of the fact that the complainant and the wife of the complainant have tried to falsely implicate the accused in a serious offence of 307.
7. On careful consideration of the evidence on record, more particularly of the Doctor who examined the complainant and P.W. No.3-Advocate Shri Haskukhkumar P.Brahmbhatt-Exh.22, who is an independent witness and who has stated to have intervened and separated the accused and the complainant and, evidence of P.W. No.4-Rupabhai D.Sindhi-Exh. 23, who is having a Pan shop in the vicinity, it is clear that the incident was of trivial nature between the complainant on one hand and the accused on the other and the complainant-Doctor has tried to give disproportionate gravity to the entire incident. In attempt to give disproportionate gravity, he implicated as many as 8 persons. It is unfortunate that out of 8 accused, accused Nos.1, 2, 3 and 5 have already expired and appeal stood abated qua them.
8. The Court, on perusal of the judgment and order of the learned Additional City Sessions Judge, is of the opinion that the appreciation of the evidence by the learned Additional City Sessions Judge and the findings recorded after appreciation of the evidence are no way require any interference at the hands of this Court. In the result, the appeal fails and the same is dismissed.
(Ravi R.Tripathi, J.) (G.B.Shah, J.) *Shitole Top