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2003 Supreme(Guj) 311
Gujarat High Court
Judgename :A.M.KAPADIA, J.N.Bhatt
CHIMANBHAI LALJIBHAI - Appellant
Versus
STATE - Respondent
CRIMINAL APPEAL 1128 of 1994
Decided On : 06/11/2003
Headnote:
Criminal Procedure Code, 1973 - Section 374 – Indian Panel Code - Section 325 read with Section 114 - Appellants, original accused have challenged conviction and sentence recorded by Additional Sessions Judge, Navsari in Sessions case by which the appellants, original accused came to be convicted for offence punishable of Indian Penal Code and sentenced to undergo imprisonment for life and fine and in default to undergo one month’s simple imprisonment for committing murder of one father of complainant in an incident which occurred - Appellants in incident is concerned same is not seriously disputed - In other words except provisions of law which conviction and quantum of sentence could be justified culpability for having remained present and participated in the unfortunate incident which occurred has not been controverter and pressed - Still however for satisfaction of judicial conscience have threadbare examined documentary as vivo voce evidence impugned judgment and submissions raised on behalf of both sides and the relevant and material legal settings in general and provisions of IPC in particular - Account of injuries sustained in incident which occurred at about is rightly not disputed - Otherwise also it is materially and substantially borne out from record in general and evidence of Medical Officer - Held, In view of aforesaid important aspects which have been highlighted and heralded by us from the record of present case and after considering all rival submissions and entire factual profile and relevant legal settings are of opinion that presence of appellants and their involvement in offence and the role played by them cannot be questioned - However their conviction of IPC is not supportable and not legal - It is therefore liable to be quashed and set aside - All the four appellants who are original accused and out accused persons at best can be held liable for their culpability individually for causing injuries to injured witnesses - Clearly provides that if hurt or harm is caused and that too with deadly weapons persons can be convicted for offence said section maximum for a period of seven years whereas appellants are convicted and sentenced IPC for a period of five years by Additional Sessions Judge - In our opinion complicity and culpability of each appellant original accused out of original accused persons is established beyond reasonable doubt for the offence punishable of IPC for causing voluntary injuries and that too with help of stick or stone and therefore they are liable to be punished of IPC individually - Now question is as to what should be the quantum of sentence under section 325 of IPC to each appellant individually - Additional Sessions Judge has rightly imposed rigorous imprisonment for five years and fine of Rs. 200 and in default one month’s simple imprisonment - Conviction and sentence of IPC against appellants original accused is quashed and set aside - Appellants, original accused are individually held guilty and convicted for offence punishable of IPC and shall undergo sentence of rigorous imprisonment for five years and pay fine each and in default undergo one month’s simple imprisonment - Appeal allowed (Paras 16 and 17)
( 1 ) BY way of this appeal under section 374 of the Code of Criminal Procedure, 1973 (Cr. P. C. for short), the appellants, original accused Nos. 1, 3, 7 and 11 have challenged the conviction and sentence recorded by the learned Additional Sessions Judge, Navsari in Sessions Case No. 23/91, by which the appellants, original accused Nos. 1, 3, 7 and 11 came to be convicted for the offence punishable under section 302 read with 114 of the Indian Penal Code (IPC for short) and sentenced to undergo imprisonment for life and fine of Rs. 200/- and in default to undergo one months simple imprisonment, for committing murder of one Gondiabhai Devjibhai, father of the complainant, in an incident which occurred on 12. 10. 1990 at 6. 30 a. m. at village Jogvel, Tal: Dharampur, Dist: Valsad and they also came to be convicted under section 325 read with section 114 of the IPC and sentenced to undergo rigourous imprisonment for five years and pay amount of Rs. 200/- by way of fine and in default, one months simple imprisonment. Both sentences were directed to run concurrently. The sole question which emerges and placed in focus in this appeal is as to whether the conviction and sentence of the appellants, original accused Nos. 1, 3, 7 and 11 under section 302 read with section 114 and 325 read with 114 of IPC would stand the judicial scrutiny in exercise of power under section 374 of the Cr. P. C. , to which we hasten to discuss and adjudicate upon, hereinafter, after considering the factual matrix, giving rise to the appeal, at the instance of the appellants, original accused Nos. 1, 3, 7 and 11 out of the 14 accused persons arraigned in Sessions Case before the Trial Court.
( 2 ) IT would be appropriate to mention, at this stage, that in so far as involvement of appellants in the incident of 12. 10. 90 is concerned, the same is not seriously disputed. In other words, except the provisions of law under which the conviction and quantum of sentence could be justified, the culpability for having remained present and participated in the unfortunate incident which occurred on 12. 10. 90 at 6. 30 a. m. has not ben controverted and pressed. Still, however, for the satisfaction of the judicial conscience, we have threadbare examined the documentary as well as vivo voce evidence, the impugned judgment and the submissions raised on behalf of both the sides and the relevant and material legal settings, in general, and the provisions of section 302, 325 and 114 of the IPC in particular.
( 3 ) HOMICIDAL death of Gondiabhai Devjibhai on account of injuries sustained in the incident which occurred at about 6. 30 a. m. on 12. 10. 1990 is, rightly, not disputed. Otherwise also, it is materially and substantially borne out from the record in general and the evidence of the Medical Officer of Dr. Dhananjay N. Patel (PW-1), Ex. 19, Dr. M. N. Desai (PW-9), Ex. 48, Dr. Bipinchandra L. Sakiwala (PW-15), Ex. 60, Post Mortem Report (Ex. 63), Inquest report and other supporting circumstances that the homicidal death of deceased Gondiabhai Devjibhai has been established by an unimpeachable evidence on record.
( 4 ) THE only question which would arise now and requires our adjudication is as to whether the conviction of the appellants under section 302 read with section 114 and under section 325 read with section 114 which is under challenge could be said to be justified or not. To substantiate the charge framed by the Sessions Court, following 15 witnesses were examined by the prosecution: PW No.
Names
Ex. Nos.
1.
Dr. Dhananjay Naranbhai Patel
19
2.
Chhagan Ramji
27
3.
Indubhai Godiyabhai (complainant)
29
4.
Nirruddin Sirajuddin
30
5.
Nazir Mohmad Fakir Mohmad
31
6.
Shantaben Indubhai
45
7.
Dhavlubhai Godiyabhai
46
8.
Daji Mangal
47
9.
Dr. Mitesh N. Desai
48
10.
Chandu Godiya 52
11.
Poslu Mangal
53
12.
Janubhai Koldhubhai
54
13.
Takhatsinh Ramsinh
55
14.
Mohmad Khali A. Chauhan (PI)
56
15.
Dr. Bipinchandra L. Sakiwala
60
. The prosecution has, also, re
