NEUTRAL CITATION
R/CR.RA/381/2010 ORDER DATED: 11/08/2023
undefined
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL REVISION APPLICATION NO. 381 of 2010
==========================================================
BALVANTBHAI ALIAS BAMABHAI S/O MAFABHAI VAGHELA
Versus
STATE OF GUJARAT
==========================================================
Appearance:
MR YV BRAHMBHATT(206) for the Applicant(s) No. 1
MR LB DABHI, APP for the Respondent(s) No. 1
==========================================================
CORAM:HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR
Date : 11/08/2023
ORAL ORDER
1. By this application, under Section 397 read with Section 401 of the code of Criminal Procedure, 1973 the applicant has challenged the order dated 30.06.2010 passed by the Sessions Judge, Gandhinagar in Criminal Appeal No.43 of 2009 confirming the judgment and order dated 05.09.2009 passed by the JMFC, Gandhinagar in Criminal Case No.16117 of 2007.
2. Heard learned advocates for the respective parties.
3. It is the case of the complainant that a complaint was filed being I-CR No.240 of 2007 registered before the Dabhoda Police Station for the Offence Punishable under Section 323, 324, 504, 427 and 114 of the Indian Penal Page 1 of 6 Downloaded on : Sun Sep 17 01:05:58 IST 2023 NEUTRAL CITATION R/CR.RA/381/2010 ORDER DATED: 11/08/2023 undefined Code and Section 135 of the Gujarat Police Act at the instance of one Jitendrakumar Hiralal Pandya PW-11 wherein it is alleged that on 08.11.2017 at about 11:00 a.m., accused No. 1 has demanded cigarette from the complainant and as the complainant refused, accused No. 1 got agitated and started abusing him and called other co- accused and attacked the complainant on the left leg with a spade and other co-accused have also assaulted the complainant with kicks and fist blows and as a result, the complainant has suffered fracture injury and therefore, the complainant has filed the complaint.
4. After investigation, the Investigating Agency filed a charge-sheet and after examining the as many as seven prosecution witness, and five documentary evidence, the learned Chief Judicial Magistrate First Class found Accused Nos. 1 to 4 guilty of offenses punishable under Sections 323, 324, 504, 527, and 114 of the IPC. However, in the subsequent appeal by the accused persons, the learned Sessions Judge deemed it appropriate to grant the appeal with regard to Accused Nos. 2 to 4, while simultaneously Page 2 of 6 Downloaded on : Sun Sep 17 01:05:58 IST 2023 NEUTRAL CITATION R/CR.RA/381/2010 ORDER DATED: 11/08/2023 undefined affirming the conviction and sentence pronounced by the learned Magistrate First Class in relation to Accused No. 1, who is the petitioner in the present revision application.
5. The evidence on record prima facie, establishes the offense under Section 324 of IPC against the present accused. The Injury Certificate, produced at Exhibit 29, confirms the injury that falls under Section 324 of the IPC. Dr. Hitesh Hariprasad Gandhi PW-7 examined at Exhibit 27, has made it clear that on 08.11.2007, the complainant brought for the treatment at Civil Hospital, Gandhinagar with a Police Yadi (report), having sustained an injury that appears to have been caused by a hard and blunt object, such as a spade. One Jignesh Chimanbhai PW-2, who is an eye-witness, has supported the case of the prosecution and has specifically stated that the present accused has given a blow on the great toe of the left leg of the complainant with a spade. Thus, injury has been proved by the prosecution and considering the said, the conviction has been recorded.
6. It is pertinent to note that in the present revision Page 3 of 6 Downloaded on : Sun Sep 17 01:05:58 IST 2023 NEUTRAL CITATION R/CR.RA/381/2010 ORDER DATED: 11/08/2023 undefined application, order of conviction is assailed by the petitioner. As per law laid down by the Apex Court in the case of Malkeet Singh Gill vs The State Of Chhattisgarh, reported in 2022(8) SCC 204 wherein, the Hon'ble Apex Court has been pleased to hold that interference with the conviction in revisional jurisdiction is not permissible, it is permissible only when the findings of fact recorded by the Court below appears to be totally perverse, hearing the concurrent findings of conviction arrived at by two Courts after detailed appreciation of the material and evidence brought on record. Hence, interference in the present petition does not call for by this Court.
7. However, it is worth to mention that the learned advocate for the petitioner has submitted that the petitioner is a senior citizen and earlier the report from the Probation Officer was called for and hence, he requested to extend the benefit of probation. Considering the said request, the report of Probation Officer was called for and the report Probation Officer is received and this Court has considered the report received from the Probation Officer as the Page 4 of 6 Downloaded on : Sun Sep 17 01:05:58 IST 2023 NEUTRAL CITATION R/CR.RA/381/2010 ORDER DATED: 11/08/2023 undefined petitioner is senior citizen and he has not been involved in any other criminal offence and no other criminal antecedents and alleged injury suffered by the complainant is also super flop in the nature.
8. Considering the facts of the case and report of the Probation Officer, as this Court has confirmed the order of conviction, then order of probation is required to be extended. Keeping in mind the law laid down by the Apex Curt in the case of Commissioner of Police vs Sandip Kumar, reported in (2011) 4 SCC (Cri.) 644, wherein the Court is inclined to adopt reformative approach.
9. In view of above, the order and judgment of conviction recorded by the learned Chief Judicial Magistrate First Class, Gandhinagar in Criminal Case No.16117 of 2007 is upheld.
10. However, the benefit of probation is extended to the present petitioner for one year and during this period of probation, the accused shall have to maintain peace and Page 5 of 6 Downloaded on : Sun Sep 17 01:05:58 IST 2023 NEUTRAL CITATION R/CR.RA/381/2010 ORDER DATED: 11/08/2023 undefined harmony and be of good behaviour and shall not be indulged in any criminal activity either directly or indirectly and the accused shall have to execute a bond of Rs.15,000/- (Fifteen Thousand Rupees Only) with one surety of like amount for a period of one year before the learned Trial Court, failing which, the learned Trial Court is directed to issue non-bailable warrant against the accused- petitioner and direct him to serve the sentence.
11. The order of substantive sentence of imprisonment imposed on the present petitioner by the learned Magistrate shall remain in abeyance till the expiry of the bail bond, and the bail bond shall be executed as soon as possible but not later than two weeks from the date of receipt of this order before the learned Magistrate, Gandhinagar. Let copy of this order be sent to Probation Officer, Gandhinagar.
12. With the above directions, the application stands disposed of.
(HASMUKH D. SUTHAR,J) ALI Page 6 of 6 Downloaded on : Sun Sep 17 01:05:58 IST 2023