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2019 Supreme(Guj) 494
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
A.G. URAIZEE, J.
Ratanji Manaji Thakor - Appellant
Versus
State Of Gujarat - Respondent
R/Criminal Appeal No. 521 of 2002
Decided on : 01-07-2019
Advocate Appeared:
For the Appellant : MR. V M DAMORE(3787), MS DILBAR CONTRACTOR FOR MS KAVITA B GAJJAR(5621), Adv.
For the Respondent: MR KL PANDYA, Adv.
Headnote:
Indian Penal Code -Sections 313,307,326,323,147,148,149,504 -Bombay Police Act -Section 135 -Complainant lodged complaint before Police Station alleging that near his house, the accused persons including present appellant came with knife, dhariya, barchhi and stick by forming unlawful assembly. It is further alleged that the accused stated that why you have done quarrel before 12 months and why you have done compromise and thereby they started to speak abuses. The complainant has stated that he had made request not to abuse, yet the accused have continued to abuse to him. The accused got existed and the appellant had given blow chhari (knife) to him on the right side of abdomen. At the time of incident, all the accused were having deadly weapons. The accused No.2 had given blow of barchhi on his left hand and therefore, the complainant shouted and his brother came on the spot of incident and at that time, the accused No.4 had given stick blow on the back of said Therefore, the complainant sustained serious injuries and he was shifted to the hospital, where he had given complaint Therefore, the complaint was filed by the complainant being CR No.122 of 1996 for the. Thereafter, necessary formalities were completed and the appellant was arrested and upon conclusion of investigation, the charge-sheet was filed against him and as the offences were exclusively triable by the Court of Sessions, the learned Magistrate committed the case under Section 209 of the Code to the Court of Sessions, where the case came to be registered as Sessions Case No. 127 of 1997.Upon conclusion of the trial, the statement under Section 313 of the Code of the accused-appellant came to be recorded. The trial Court, after considering the evidence on record and arguments of learned APP and learned advocate for the accused, convicted the appellant accused of the charges by the impugned judgment and order. Heard Contractor, learned advocate, learned advocate for the appellant and learned APP appearing for the respondent - State. I have perused the record of Sessions Case No.127 of 1997. learned advocate for the appellant submitted that the appellant was attacked and assaulted by the complainant and others and therefore, in exercise of right of self defence, he had wilded knife, which accidentally caused injury in the abdomen of P.W.2. She further submitted that a cross-complaint in respect of the same incident was also filed. It is her submission that the injury suffered by P.W.2 was not enough to cause death in ordinary course of nature. According to her submission, at the most the appellant can be said to have committed an offence punishable –Held occurrence took place. Appellant was on bail during the trial and thereafter, he is released on bail pending the present appeal. There is nothing on record to indicate that after occurrence of the incident, which is subject matter of the present appeal, the appellant has not acted in any manner prejudicial to law and order. I am, therefore, of the view that the sentence which the appellant has undergone would be sufficient for the offence.For the foregoing reasons, the present appeal succeeds in part. The impugned judgment and order of conviction and sentence passed by the learned Additional Sessions Judge, Mahesana, in Sessions Case No.127 of 1997 is modified to already undergone by the appellant by converting sentence for the offence punishable under Section 307 of Indian Penal Code into offence punishable appellant is on bail and hence, his bail bonds stand cancelled and surety, if any, stands discharged. R & P be transmitted to the concerned trial Court forthwith –Appeal is Dismissed.
A.G.URAIZEE, J.
1. In this appeal under Section 374 of Criminal Procedure Code (hereinafter referred to as “Code”), the appellant has assailed the judgment and order passed by the learned Additional Sessions Judge, Mahesana, in Sessions Case No.127 of 1997 dated 07.06.2002, whereby and whereunder, he came to be convicted for the offences punishable under Sections 307 and 323 of Indian Penal Code (for short “IP Code”) and sentenced as under:
Nature of offence
Sentence
307
4 years rigorous imprisonment and fine of Rs.1000/-, in default, to further undergo 1 month simple Imprisonment.
323
to pay fine of Rs.500/-, in default, to undergo 15 simple imprisonment.
2. Case of the prosecution against the appellant as could be culled out from the memo of appeal is that:
2.1 The complainant lodged complaint on 20.09.1996 before Santhal Police Station alleging that on 19.09.1996 about 8:30 p.m., near his house, the accused persons including present appellant came with knife, dhariya, barchhi and stick by forming unlawful assembly. It is further alleged that the accused stated that why you have done quarrel before 12 months and why you have done compromise and thereby they started to speak abuses. The complainant has stated that he had made request not to abuse, yet the accused have continued to abuse to him. The accused got existed and the appellant had given blow chhari (knife) to him on the right side of abdomen. At the time of incident, all the accused were having deadly weapons. The accused No.2 had given blow of barchhi on his left hand and therefore, the complainant shouted and his brother Nagraji Badarji and Bharaji Badrji came on the spot of incident and at that time, the accused No.4 had given stick blow on the back of said Nagraji. Therefore, the complainant sustained serious injuries and he was shifted to the hospital, where he had given complaint Therefore, the complaint was filed by the complainant being CR No.122 of 1996 for the offence under Sections 147, 148, 149, 307, 504 of Indian Penal Code and Section 135 of the Bombay Police Act.
2.2 Thereafter, necessary formalities were completed and the appellant was arrested and upon conclusion of investigation, the charge-sheet was filed against him and as the offences were exclusively triable by the Court of Sessions, the learned Magistrate committed the case under Section 209 of the Code to the Court of Sessions, where the case came to be registered as Sessions Case No. 127 of 1997.
2.3 The Sessions Court framed charges against the accused vide Exhibit-4. The same was read over and explained to the accused - appellant, who pleaded not guilty and claimed to be tried. The prosecution, therefore, adduced following documentary and ocular evidence to prove the guilt of the accused.
Oral Evidence:
Sr.No.
Name of the Witnesses
Exhibit
1.
P.W.1
Dr. Kantilal Ishwardas Patel
13
2.
P.W. 2
Vinuji Badarji
21
3.
P.W. 3
Nagraji Badarji Thakor
23
4.
P.W. 4
Bharatji Badarji
24
5.
P.W. 5
Badaji Chanduji
25
6.
P.W.6
Baldevji Okhaji
30
7.
P.W.7
Premraj Naranji
31
Documentary Evidence:
Sr.No.
Documents
Exhibit
1.
Complaint
22
2.
Panchnama - Scene of offence
28
3.
Injury Certificate of Vinuji Badarji
16
4.
Injury Certificate of Nagarji Badrji
19
5.
Depute order
32
6.
X-rays reports
14 & 15
7.
Radiologist Report
17 & 18
8.
Panchnama - Seizure of weapon
26 &
27
2.4 Upon conclusion of the trial, the statement under Section 313 of the Code of the accused-appellant came to be recorded. The trial Court, after considering the evidence on record and arguments of learned APP and learned advocate for the acc
