Criminal Appeal No. 268 of 2012. Case: Amarsing Jethiyabhai Vashava Vs State of Gujarat. High Court of Gujarat (India)
| Case Number | Criminal Appeal No. 268 of 2012 |
| Counsel | For Appellant: Pratik B. Barot, Advocate and For Respondents: L.B. Dabhi, A.P.P. |
| Judges | K. M. Thaker, J. |
| Issue | Bombay Police Act, 1951 - Section 135; Code of Criminal Procedure, 1973 (CrPC) - Section 313; Indian Penal Code 1860, (IPC) - Sections 135, 307, 326 |
| Judgement Date | February 09, 2016 |
| Court | High Court of Gujarat (India) |
Judgment:
K. M. Thaker, J.
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The appellant in this Criminal Appeal has preferred present appeal against the judgment and order dated 11.11.2011 passed by the learned District & Sessions Judge, District: Narmada at Narmada in Sessions Case No. 32 of 2011 whereby the learned Court has convicted the appellant for offence punishable under Section 307 of the Indian Penal Code and Section 135 of the Bombay Police Act and the learned Court has sentenced the appellant to undergo 10 years RI and to pay fine of Rs. 5,000/- for the offence punishable under Section 307 of IPC and 1 year RI in case of default in payment of fine and for the offence punishable under Section 135 of IPC, the learned Court has sentenced the appellant to undergo 1 year RI and to pay fine of Rs. 1,000/- and in default in payment of fine to undergo further 1 month R.I.
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At the outset, it is relevant and necessary to mention that the learned counsel for the appellant, during his submissions, submitted, declared and stipulated that the appellant does not seek clean acquittal and the appellant restricts the scope of appeal to urge that having regard to special and peculiar facts of the case either the conviction may be converted under Section 326 or the sentence may be reduced to the extent undergone. In view of the said stipulation, the conclusion recorded by the learned trial Court that the allegations and charge against the accused are proved, is not placed under challenge.
2.1 However, in view of the request which is made for consideration by the Court, it would be appropriate to take into consideration the nature and gravity of the offence, nature of injury and the evidence on strength of which the findings are based.
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Briefly stated the case of the prosecution was that at about 7.30 on 14.6.2011, the appellant - accused, with intention to cause death of the victim, attacked and assaulted the injured victim with scythe (dharia) and that with the knowledge that the assault and the weapon used for assault and the injuries inflicted with the weapon will cause death the accused - appellant inflicted multiple injuries on the body of the injured victim which could have caused, and resulted into, death of the injured victim if immediate and emergent medical treatment had not been made available.
3.1 The complaint against the appellant - original accused alleged that the injured victim and the appellant are real brothers and the complainant is the son of the victim. The complainant alleged that a dispute with regard to ancestral land was going on between two brothers since past sometime and on 14.6.2011 when the victim was returning to his residence, the appellant attacked and assaulted his brother (i.e. the victim) with a scythe and inflicted multiple injuries at vital parts of body viz. neck, head and upper part of the face near the ears. The victim was immediately rushed to hospital. As it was cognizable offence intimation to police was given and thereafter complaint - FIR was lodged on 15.6.2011. According to the case of prosecution the appellant - accused had run away from the place of incident after causing the assault and he was arrested after two days, i.e. on 17.6.2011. The victim had to be admitted as an indoor patient and was given treatment from 14.6.2011 to 2.7.2011 (as indoor patient). After the complaint was lodged on 15.6.2011, the IO conducted investigation and on completion of investigation, sufficient material - evidence became available and therefore, charge-sheet came to be filed before the learned Magistrate on 25.7.2011 against the accused -present appellant for offence punishable under Section 307 of IPC and Section 135 of Bombay Police Act. The case being exclusively triable by the Court of sessions, it was committed to the Court of sessions and was registered as Sessions Case No. 32 of 2011. Thereafter, the learned Court framed charge at Exh. 6. The statement of the accused - appellant was recorded, who pleaded not guilty and claimed to be tried. So as to bring home the guilt and to prove the charge against the accused - present appellant, the prosecution examined 10 witnesses and placed on record 17 documents.
3.2 After examining the witnesses, further statement of the appellant - accused was recorded under Section 313 of the Criminal Procedure Code, wherein the appellant - accused denied the charge and the case of the prosecution. Upon being asked whether he wanted to examine any defence witness, the appellant - accused had declined and upon being asked whether he wanted to say anything in his defence he merely maintained that false case was registered against him. With reference to FSL report and serology report also, the appellant - accused maintained that the documents were false.
3.3 Thereafter, the learned Court considered the submissions by learned advocates and considered the oral and documentary evidence placed on record. After evaluating and appreciating the evidence, the learned Court reached to the conclusion that the allegations and charge against the appellant - accused are proved and that, therefore, vide judgment and order dated 11.11.2011, which is impugned in present appeal, the learned Court recorded conviction against him for above-mentioned offence and ordered him to undergo sentence mentioned above. Feeling aggrieved by the conclusion holding guilty of offence and by the sentence, the accused has taken out present appeal.
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Mr. Barot, learned counsel has appeared for the appellant and Mr. Dabhi, learned APP has appeared for the State. I have heard at length the submissions by Mr. Barot, learned advocate and Mr. Dabhi, learned APP.
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Mr. Barot, learned counsel for the accused initially submitted that the prosecution alleged that the appellant - accused had inflicted 20 blows and the injuries were grave and serious and it could have resulted into and could have cause death and the learned Court has also accepted the said submission for holding that the offence under Section 307 is proved, however, it is ignored by the learned Court that the victim was conscious when he was taken to the hospital and he took about 20 minutes to reach his residence and during that period he was in stable condition which would mean that the injuries were not grave or serious. The learned counsel also submitted that at about 7.30 p.m. it was dark at the place of incident which allegedly occurred in the 'Sim' of the Village...
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