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2017 Supreme(Guj) 82
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
Z.K. Saiyed, J.
Sabirali Saiyed Jafar Kadri and Ors. - Appellants
Vs.
State of Gujarat - Respondent
Criminal Appeal No. 138 of 2012
Decided On : 18-01-2017
For the Appellant :M.A. Bukhari, Advocate.
For the Respondent: N.J. Shah, APP.
Headnote:
Criminal Law – Criminal Trial – Code of Criminal Procedure, 1973 – Sections 313 and 374(2) – Indian Penal Code, 1860 – Section 307, 326, 323, 452, 504, 506(2), 114 – Bombay Police Act – Section 135 – Offence of Assault – Injury with axe – Convicted – Appeal against conviction – Alleged that accused entered in house of complainant and at houses of accused, Supply Department raided as accused were having cell gas Company agency – Accused had doubt that complainant had given said information to Department – Accused after entering into house of complaint, abused complainant and then, accused No. 1 made assault by ax upon head of the complainant and accused No. 3 made assault on left wrist of the complainant accused No. 2 made assault by iron pipe upon complainant and the accused No. 4 beaten complainant and administered threat to kill him – Accused persons have denied the case of prosecution and submitted that they are innocent persons – Held, It appears that there was compound fractures skull frontal bone with incised wound over left elbow – He further submitted that as per injury found from the body of complainant and looking to weapons used in the commission of offence, it prima facie appears that there was some force in the blow given by the accused –Perused evidence of P.W. 1 Dr. Firoz Khan, who examined injured and he has admitted in his cross-examination that medical certificate at Exhibit 23 issued by him and in said certificate, the injuries caused to the injured were stated in brief. This witness also supported the injuries caused to complainant – As per submission of learned advocate -recovery of weapons, in which size of as is stated 2" and bled of ax is curved and therefore, injuries as stated, are not possible by the said weapon – He also submitted that looking to position of accused and complainant, while incident took place, injuries found on skull of complainant, is not possible – In this regard, there is no opinion of expert for possibility of injuries on skull of injured person and said defence was not taken before trial Court – Contentions of size of bled is also acceptable – Even the X-ray was not collected by Investigating Agency during course of investigation – It also appears that accused made assault with an intention to kill injured and therefore, ingredients of Section 307 of Indian Penal Code can be said to be proved by prosecution – Looking to the overall evidence and circumstances, offence under Section 324 of Indian Penal Code can be said to be proved – Sessions Judge has rightly convicted and sentenced appellants and therefore, no interference is required to be called for by this Court – Conviction confirmed – Appeal is dismissed.(Paras 10 to 12)
Z.K. Saiyed, J.
1. This appeal is at the instance of appellants - original accused, in an Appeal under Section 374(2) of the Code of Criminal Procedure and is directed against an judgment and order dated 7.2.2012 passed by the learned Seventh (Ad-hoc) Additional Sessions Judge, Surat, in Sessions Case No. 151 of 2007, by which learned Sessions Judge has convicted the appellants - accused and has ordered the appellant No. 1 to undergo sentence of 5 years simple imprisonment and to pay a fine of Rs. 5,000/-, in default, to further undergo simple imprisonment for three months, for the offence punishable under Section 307 read with Section 114 of the Indian Penal Code and Section 135 of the Bombay Police Act. Learned Sessions Judge has further ordered the appellant No. 2 to undergo the sentence of 1 year simple imprisonment and to pay a fine of Rs. 2,500/-, in default, to further undergo simple imprisonment for one month, for the offence punishable under Section 307 read with Section 114 of the Indian Penal Code and Section 135 of the Bombay Police Act. All the sentences shall run concurrently.
2. Brief case of the prosecution is that on 29.6.2004 about 21:45 Hrs., the accused entered in the house of the complainant situated at House No. 11/2260-A, Variyavi Bazar, Kolivad, Surat and at the houses of the accused, Supply Department raided as the accused were having cell gas Company agency. Therefore, the accused had doubt that the complainant had given said information to the Department. Therefore, the accused after entering into the house of the complaint, abused the complainant and then, accused No. 1 made assault by ax upon the head of the complainant and accused No. 3 made assault on left wrist of the complainant. The accused No. 2 made assault by iron pipe upon the complainant and the accused No. 4 beaten the complainant and administered threat to kill him. Therefore, the complainant was registered before Chowk Bazar Police Station vide C.R. No. I 107 of 2004 for the offence under Section 307, 326, 323, 452, 504, 506(2), 114 of the Indian Penal Code and Section 135 of the Bombay Police Act. Thereafter, charge-sheet was filed by the learned trial Court and then the case was committed to the Court of Sessions, where same is registered as Sessions Case No. 151 of 2007. The accused pleaded not guilty to the charge and claimed to be tried.
3. The prosecution has also examined following witnesses, which are as under:
Sr. No.
Name of the Document
Exh.
1.
P.W.1 Dr. Firoz Asfak Khan
22
2.
P.W.2 Ashokbhai Jamnadas Karjiya
27
3.
P.W.3 Saiyad Nizamuddin Hasanbhai Saiyed
29
4.
P.W.4 Mohammad Hanif Mohmmad Salim Shaikh
31
5.
P.W.5 Iqbal Abdul Majid Munsi
32
6.
P.W.6 Bismillahbegum Saiyed Nizamuddin Saiyed
7.
P.W.7 Saiyed Naruddin Hasan Kadri
37
8.
P.W.8 Shankarbhai Motibhai Senva
38
9.
P.W.9 Aiyub Pirmohmmad Ranrej
42
10.
P.W.10 Rafiqmiya Gorumiya Shaikh
44
11.
P.W.11 Kaiyumbhai Umarbhai Pathan
46
12.
P.W.12 Laxmansinh Ratansinh Parmar
47
4. The prosecution produced following documentary evidence:
Sr. No.
Name of the Document
Exh.
1.
Medical Certificate issued Lokhat Hospital
23
2.
Medical treatment certificate issued by Dr. Firozkhan
24
3.
Panchnama – recovery of weapons
28
4.
Complaint
30
5.
Yadi
39
6.
Panchnama of cloths of the complaint
43
7.
Yadi issued to FSL
49
8.
Muddamal Ravangi Nondh
50
9.
Receipt issued by FSL for Muddamal
52
10.
FSL report
52
11.
Serological Report
53
5. Thereafter, after filing closing purshis by the prosecution, further statements of accused persons under Section 313 of the Code of Criminal Procedure, 1973 were recorded. The accused persons have denied the case of the prosecution and submitted that they are innocent persons.
6. At the conclusion
