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2003 Supreme(Guj) 485
Gujarat High Court
Judgename :H.H.MEHTA, SHARAD D.DAVE
SHAKRABHAI VALABHAI PATEL - Appellant
Versus
STATE - Respondent
CRIMINAL APPEAL 378 of 1998
Decided On : 08/28/2003
Headnote:
Criminal Procedure Code,1973 –Sections 374,235 -Indian Penal Code –Section 34,325, 504 -Appellants who were original accused Nos. 1,2, and 3 in Sessions Case No. 255 of 1996, have, by preferring this Criminal Appeal "), challenged the correctness, legality and validity of Judgment Ex. 63 rendered by the learned Additional Sessions Judge, (who will be referred to hereafter as "the learned Judge of the trial Court") in Sessions Case No. 255 of 1996 by which all the appellants were convicted for the offences punishableand each of them is sentenced to undergo life imprisonment and to pay a fine of Rs. 5,000/- and in default, to undergo further Rigorous Imprisonment for six months for offences punishable read and to undergo Rigorous Imprisonment for three years and to pay a fine of Rs. 2,000/- and in default, to undergo further Rigorous Imprisonment for three months for offences read with and also to further undergo Rigorous Imprisonment for two months and to pay a fine of Rs. 500/- and in default, to undergo further Rigorous Imprisonment for 15 days for offences punishable. learned Judge of the trial Judge also directed to undergo aforesaid sentences by each of the accused, concurrently. The learned Judge of the trial Court has, by rendering said judgment, acquitted all the accused. evidence led by the prosecution and the case unfolded by the witnesses, the case of the prosecution can be summarized in nutshell as follows:- 2. 1 p. W. 6 is the complainant in the case. As per his complaint Ex. 31, he is resident of village. He is doing agricultural work. He has three married sons. Eldest son is P. W. 10 who has married. Second son was who sustained injuries in the incident occurred and died on the next day P. W. 7 is the wife of said. Youngest third son is whose wife had shown the place of incident to the Police. All sons and their father were residing jointly. They were doing agricultural work, (deceased) and his wife P. W. 7 had gone to purchase seeds of paddy to the shop of one –Held she found following injuries which she noted down in medical certificate at Ex. 16:- (1) CLW over right thigh anteriorally -10 cm x 2 cm. x vertical Skin Deep. Fracture of femur. (2) DTS right hand (dorsal aspect) fracture of 5th MT Bone. (3) Tenderness over right shoulder. For these injuries, X-ray plates were taken but not a single fracture was detected. As per certificate at Ex. 16, the injuries were simple in nature and were likely to be caused by hard and blunt substance. She has opined that age of injuries was within 24 hours. As per certificate Ex. 16, was admitted as Indoor Patient in the hospital and was discharged. Thus, she remained in the hospital as Indoor Patient for about 25 days. in her cross-examination at length has specifically opined that injury No. 1 sustained by cannot be possible by fall. In the same manner, she has opined that injury No. 1 sustained by could not be possible by fall. She has denied the suggestion that injury No. 1 sustained by was of such a nature that it could be possible by fall. has produced X-ray plates for injuries sustained by Saburbhai and those X-ray plates are on record at Ex. 12 to Ex. 15 –Ordered Accordingly.
( 1 ) THE appellants who were original accused Nos. 1,2, and 3 in Sessions Case No. 255 of 1996, have, by preferring this Criminal Appeal under Sec. 374 (2) of the Criminal Procedure Code, 1973 ( for short "cr. P. C. "), challenged the correctness, legality and validity of Judgment Ex. 63 dated 27th February, 1998 rendered by the learned Additional Sessions Judge, Panch Mahals at Godhra (who will be referred to hereafter as "the learned Judge of the trial Court") in Sessions Case No. 255 of 1996 by which all the appellants were convicted under Sec. 235 (2) of Cr. P. C. for the offences punishable under Sec. 302 read with Sec. 34 of the Indian Penal Code (for short "i. P. C. "), Sec. 325 read with Sec. 34 I. P. C. and Sec. 323 read with Sec. 34 I. P. C. and each of them is sentenced to undergo life imprisonment and to pay a fine of Rs. 5,000/- and in default, to undergo further Rigorous Imprisonment for six months for offences punishable under Sec. 302 read with Sec. 34 I. P. C and to undergo Rigorous Imprisonment for three years and to pay a fine of Rs. 2,000/- and in default, to undergo further Rigorous Imprisonment for three months for offences punishable under Sec. 325 read with sec. 34 I. P. C. and also to further undergo Rigorous Imprisonment for two months and to pay a fine of Rs. 500/- and in default, to undergo further Rigorous Imprisonment for 15 days for offences punishable under Sec. 323 read with Sec. 34 I. P. C. The learned Judge of the trial Judge also directed to undergo aforesaid sentences by each of the accused, concurrently. The learned Judge of the trial Court has, by rendering said judgment, acquitted all the accused under Sec. 235 (1) of Cr. P. C. for offence punishable under Sec. 504 of I. P. C.
( 2 ) FROM the evidence led by the prosecution and the case unfolded by the witnesses, the case of the prosecution can be summarized in nutshell as follows:- 2. 1 p. W. 6 Gulabsing Bhavanbhai Patel is the complainant in the case. As per his complaint Ex. 31, he is resident of village Sanklianta (Tal. Godhra ). He is doing agricultural work. He has three married sons. Eldest son is P. W. 10 Zaversing who has married with Lalitaben. Second son was Kamalsing who sustained injuries in the incident occurred at 4-00 p. m. on 21st June, 1996 and died on the next day on 22nd June, 1996. P. W. 7 Rukhaben is the wife of said Kamalsing. Youngest third son is Natwarsing whose wife Savita had shown the place of incident to the Police. All sons and their father were residing jointly. They were doing agricultural work. 2. 2 on or about 21st June, 1996, Kamalsing (deceased) and his wife P. W. 7 Rukhaben had gone to purchase seeds of paddy to the shop of one Somabhai Ramabhai. Kamalsing was also entrusted with another work with regard to the tractor. As per the case of the prosecution, P. W. 7 Rukhaben came with the seeds of paddy and Kamalsing engaged himself for talk with regard to hiring of the tractor. As per the case of the prosecution, the incident took place at 4-00 p. m. on 21st June, 1996. At that time, the complainant Gulabsing in company of his son P. W. 10 Zaversing was doing agricultural work with the help of plough in his field. At that time, when Rukhaben was on the way for her return to the house of the complainant, her husband was following her keeping distance of about 25 to 30. Suddenly Rukhaben heard shouts of her husband for his rescue, and therefore, immediately she saw at her back. At that time, she saw that three persons (appellant Nos. 1,2 and 3) were inflicting blows of sticks on the person of Kamalsing. Therefore, P. W. 7 Rukhaben raised shouts for help to her father-in-law. Rukhaben suddenly took a turn and proceeded towards her husband Kamalsing. Mean while, complainant Gulabsing and P. W. 10 Zaversing came running near Kamalsing. It is the case of the prosecution that these two witnesses i. e. complainant Gulabsing and P. W. 10 Zaversing both have seen three persons inflicting blows wit
