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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
V.P. Patel, J.
Ishwarbhai Sardabhai Kalasva – Appellant
Versus
State of Gujarat – Respondent
R/Criminal Appeal No. 902 of 2001
Decided On : 23-01-2020
Code of Criminal Procedure, 1973 – Section 374(2) – Complainant has one brother they are doing agricultural work in their land. The land of the accused is also situated adjacent to the land of the complainant. The accused and his brothers were cutting the trees to clear the agricultural land. Brother of the accused came to the house of the complainant and asked to come to the farm to show the boundary where the tress are required to be cut. The complainant went to the farm with the brother of the accused. It is also stated that at that time his daughter was also with him. After reaching the farm he told to the accused that please do not cut the trees from the lower side and cut the trees from upper side. At that time appellant has instigated and abused him and told that he will cut the tress as per direction of his father and at the same time he has inflicted a blow of axe on the left side of head of the complainant. Therefore, there was chop in head and blood came from it. The accused has also inflicted second blow, then the complainant has raised his right arm so it was inflicted on the index finger of his hand and blood came out. The accused has also inflicted a blow on the right back side of complainant’s body, therefore, he was injured. It is further stated that his daughter intervene at that time the accused has inflicted blow by the back side of axe on the left shoulder of his daughter and given another blow on the back of the daughter. At that time the brother of the accused has fetched the axe from the hands of the appellant-accused. The accused was run away and complainant was fall down due to head injury. That the daughter of complainant has shouted at that time the mother of the complainant, her brother and his brother’s wife came there. Thereafter he has filed the complaint before the police station. Held – It is of the view that prosecution has established by substantive piece of evidence that, appellant accused has acted with a knowledge under the circumstances he has given blow to the complainant such blow is sufficient to cause death. If death is caused he would be guilty thus ingredients for the offence punishable under Section 307 of the code is established – Appeal dismissed. (Para 27)
Facts of the Case:
Appellant has instigated and abused him and told that he will cut the tress as per direction of his father and at the same time he has inflicted a blow of axe on the left side of head of the complainant. Therefore, there was chop in head and blood came from it. The accused has also inflicted second blow, then the complainant has raised his right arm so it was inflicted on the index finger of his hand and blood came out.
Finding of the Court:
If death is caused he would be guilty thus ingredients for the offence punishable under Section 307 of the code is established.
Result: Appeal dismissed.
JUDGMENT :
1. The original accused-appellant has filed this appeal under Section 374(2) of the Code of Criminal Procedure, 1973 (hereinafter referred as “the Code”), being aggrieved and dissatisfied with the judgment and order dated 01.09.2001 passed by the learned Additional Sessions Judge, Sabarkantha (hereinafter referred as “the learned Trial Court”) in Sessions Case No. 45 of 1998.
2. Heard learned learned senior Advocate Mr. BB Naik for the appellant- accused and APP Ms. Jirga Jhaveri for the respondent State.
Order under Challenge:
3. Learned trial court has passed an order dated 01.09.2001, convicting the present appellant – Original accused under Section 235(2) of the Code for the offences punishable under Sections 307 of the Indian Penal Code (hereinafter referred to as IPC), sentencing 5 years of simple imprisonment and fine of Rs.2500/-, in default the accused has to undergo 6 months on simple imprisonment. The learned trial Court has further acquitted the appellant accused under Section 235(1) of the code for the offences punishable under Section 323,504 of the IPC. The trial court has ordered that the appellant is entitled to set of the period of detention which he has already undergone during the investigation and trial.
Arguments for the accused
4. Learned advocate for the appellant has submitted that the impugned judgment and order is illegal, invalid and the findings are not based on the materials placed on record of the case. Therefore, the learned trial Court has committed grave error by passing the judgment and order. That the trial Court has not appreciated the evidence of the eye-witnesses in proper perspective. That the doctor has found CLW on the head of the injured complainant which could not be caused by the sharp edged instrument like axe. That the complainant has not stated in the complaint about the presence of his son Ashwin. That there are contradiction in the deposition of the complainant as well as the eye-witness. It is further argued that though the presence of independent witness in the vicinity of the scene of offence are available but no such witnesses were examined.
4.1 It is also argued that the complainant has not given any name in the history before the doctor and the complainant was not gone to the hospital with the police yadi. That the doctor of the Megraj village is not examined. The weapon and clothes are not sent to FSL. That the weapon axe does not contain blood stain. Thus there is no corroborative evidence in this case. Further there is no explanation as regards to the delay in filing the FIR.
4.2 Learned advocate for the appellant has also argued that the prosecution has not established its case beyond any reasonable doubt, and he has relied upon the following judgments of the Apex Court, which will be discussed hereinafter.
(A) 2019 (2) SCC 303 in the case of State of UP Vs. Wasif Haider and ors
(B) 2019 (4) SCC 522 in the case of Digamber Vaishnav Vs. The State Of Chhattisgarh
(C) 2019 (8) SCC 50 in the case of Anand Ramachandra Chougule vs Sidarai Laxman Chougala
4.3 The scene of offence is not identified by the eye-witness that the prosecution has no established the ingredients of the offence beyond any reasonable doubt. Further has requested to quash and set aside the impugned judgment and order and acquitted the appellant.
Arguments of the prosecution.
5. Learned APP has argued that the order of acquittal passed by the learned trial Court is legal and valid and correct in the eyes of law. That the prosecution has examined the injured witness, eye-witness, medical officers as well as the panch witnesses and police officers. That the injured witness and eyewitnesses have supported the case of the prosecution. The delay in FIR is not fatal to the prosecution. Sureshbhai Shah has examined the injury to the complainant and that there is no need to examine other witnesses when the injured witness seem to be trustworthy and reliable. It is further stated that an FIR should not be an encycl
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