Gujarat High Court
Faridmahammad Malekmahammad Chauhan vs State Of Gujarat on 25 April, 2025
NEUTRAL CITATION
R/CR.RA/849/2016 JUDGMENT DATED: 25/04/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL REVISION APPLICATION (AGAINST CONVICTION)
NO. 849 of 2016
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE PRANAV TRIVEDI Sd/
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Approved for Reporting Yes No
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FARIDMAHAMMAD MALEKMAHAMMAD CHAUHAN & ANR.
Versus
STATE OF GUJARAT
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Appearance:
MR P P MAJMUDAR(5284) for the Applicant(s) No. 1,2
MR. HARDIK SONI, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE PRANAV TRIVEDI
Date : 25/04/2025
ORAL JUDGMENT
[1] The present revision application is filed under Section 397 read with Section 401 of the Criminal Procedure Code, 1973 (hereinafter referred to as "the Code") challenging the correctness and validity of the judgment and order dated 07.10.2016 passed by the learned Sessions Judge, Patan (hereinafter referred to as "the Appellate Court") in Criminal Page 1 of 16 Uploaded by DHARMENDRA KUMAR(HC01071) on Mon May 05 2025 Downloaded on : Sat May 17 03:17:11 IST 2025 NEUTRAL CITATION R/CR.RA/849/2016 JUDGMENT DATED: 25/04/2025 undefined Appeal No.29 of 2012, wherein the Appellate Court was pleased to dismiss the appeal and confirm the judgment and order dated 19.07.2012 passed by the learned Judicial Magistrate First Class, Radhanpur (hereinafter referred to as "the Trial Court") in Criminal Case No.733 of 2006, whereby applicant No.1 - original accused No.1 (hereinafter referred to as "the applicant No.1") was convicted for offences punishable under Sections 326 and 114 of the Indian Penal Code (hereinafter referred to as "the IPC") and sentenced for rigorous imprisonment of 30 months, whereas applicant No.2 - original accused No.4 (hereinafter referred to as "the applicant No.2") was convicted for offence punishable under Section 323 read with Section 114 of the IPC and sentenced to simple imprisonment of 3 months. [2] The brief facts leading to filing of the present revision application are that a complaint was lodged at about 4:00 p.m. on 24.04.2006, wherein the complainant, Famidaben, along with her younger sister, Faridaben, and sister-in-law was present at her house. Allegedly, on the said date and time, the applicant No.2 came and had a quarrel with the complainant and her Page 2 of 16 Uploaded by DHARMENDRA KUMAR(HC01071) on Mon May 05 2025 Downloaded on : Sat May 17 03:17:11 IST 2025 NEUTRAL CITATION R/CR.RA/849/2016 JUDGMENT DATED: 25/04/2025 undefined relatives who were present in the house. During the course of altercation, applicant No.1 also intervened and took part in the quarrel. It is alleged that initially, applicant No.2 had beaten the original complainant and thereafter applicant No.1 intervened and assaulted the complainant with a knife. Looking to the nature of assault, another victim, Shabbirbhai also intervened and due to such intervention, applicant No.2 also gave a knife blow on the chest of second victim, i.e., Shabbirbhai. The knife blow was on the chest as well as the left hand and shoulder. In wake of such allegations, a First Information Report was lodged and registered before the Radhanpur Police Station, being C.R.No.I-63 of 2006 for the offence punishable under Sections 326, 324, 323, 504, 506(2) and 114 of the IPC and Section 135 of the Bombay Police Act. Subsequent to the registration of First Information report, the charge-sheet came to be filed. The Trial Court registered the case as Criminal Case No.733 of 2006 and charges were framed for the offence punishable under Sections 326, 324, 323, 504, 506(2) and 114 of the IPC and Section 135 of the Bombay Police Act. After recording of further statement of the accused under Page 3 of 16 Uploaded by DHARMENDRA KUMAR(HC01071) on Mon May 05 2025 Downloaded on : Sat May 17 03:17:11 IST 2025 NEUTRAL CITATION R/CR.RA/849/2016 JUDGMENT DATED: 25/04/2025 undefined Section 313 of the Code and upon completion of the trial, the Trial Court convicted applicant Nos. 1 & 2 for offence under Section 326 and 114 of the IPC. Original Accused No.2 and 3 were acquitted.
[2.1] Being aggrieved by the order passed by the Trial Court in Criminal Case No.733 of 2006, both the applicants preferred an appeal before the Appellate Court, which came to be registered as Criminal Appeal No.29 of 2012. The Appellate Court by way of impugned order dated 07.10.2016 upheld the order of conviction and rejected the Criminal Appeal, which has culminated into filing of the present revision application. [3] Heard Mr. P. P. Majmudar for the applicants and Mr. Hardik Soni, learned Additional Public Prosecutor appearing for the respondent - State.
[4] It was sought to be submitted by Mr. P. P. Majmudar, learned advocate appearing for the applicants that the impugned orders are contrary to law and evidence on record. Page 4 of 16 Uploaded by DHARMENDRA KUMAR(HC01071) on Mon May 05 2025 Downloaded on : Sat May 17 03:17:11 IST 2025
NEUTRAL CITATION R/CR.RA/849/2016 JUDGMENT DATED: 25/04/2025 undefined There is gross miscarriage of justice. The impugned judgments and orders are passed without appreciating the evidence on record in its proper perspective. The testimonies of the witnesses were misread while passing the impugned judgments. The prosecution has not been able to prove his case beyond reasonable doubt. It was further pointed out by Mr. Majmudar, learned advocate that the deposition of the witnesses ought to have been properly discussed in the findings of the Trial Court. There are material contradiction in the testimonies of the prosecution witnesses. Relying on the testimonies of Medical Officer, namely Dr. Paresh Kanaiyalal Kadiya below Exhibit '40' and testimonies of Dr. Javedbhai Ahemadbhi Mansuri below Exhibit '48', it was sought to be submitted by Mr. Majmudar, learned advocate that the medical history before the doctor substantiate the fact that the injured has not given the name of the applicants - accused. Relying on the testimony of Femidaben Umarbhai below Exhibit '11', testimonies of witness Faridaben Umarbhai below Exhibit '17' and of witness Sabirbhai Jamansha below Exhibits '24' & '51', it was sought to be submitted by Mr. Majmudar, learned advocate that there are Page 5 of 16 Uploaded by DHARMENDRA KUMAR(HC01071) on Mon May 05 2025 Downloaded on : Sat May 17 03:17:11 IST 2025 NEUTRAL CITATION R/CR.RA/849/2016 JUDGMENT DATED: 25/04/2025 undefined material contradictions in the testimonies, which could have led to the acquittal. It was also pointed out that there was a material fallacy with regard to the observation on factual aspect such as mode of transportation as well as consciousness of the injured. The testimonies of the injured reveal that they were unconscious, whereas the doctor clearly reveals that the injured were conscious. Therefore, according to Mr. Majmudar, there is a material contradiction in the prosecution case. The Trial Court or the Appellate Court have not discussed the evidence at all, and therefore, there is inherent fallacy with regard to the observation made in the impugned orders. Relying on the judgment of this Court in the case of Kabhaibhai @ Kaliyo Punambhai Parmar versus State of Gujarat passed on 04.02.2014 in Criminal Appeal No.1647 of 2008, particular paragraphs 20 to 24, it was submitted by Mr. Majmudar, learned advocate that identity of the assailants ought to have been revealed to the doctor if the injured persons were conscious. Further relying on the judgment in the case of Amit Kapoor versus Ramesh Chander & Another reported in (2012) 7 S.C.R. 988, it was sought to be submitted by Mr. Page 6 of 16 Uploaded by DHARMENDRA KUMAR(HC01071) on Mon May 05 2025 Downloaded on : Sat May 17 03:17:11 IST 2025 NEUTRAL CITATION R/CR.RA/849/2016 JUDGMENT DATED: 25/04/2025 undefined Majmudar, learned advocate that jurisdiction of Court under Section 397 of the Code could be exercised where there is palpable error, non-compliance with the provisions of law and the decision is completely erroneous. Therefore, it was submitted by Mr. Majmudar, learned advocate that in the present case, there has been a clear misreading of evidence and therefore, the jurisdiction under Section 397 of the Code is required to be invoked by this Court.
[5] Per contra, Mr. Hardik Soni, learned Additional Public Prosecutor appearing for the respondent - State relying on the testimonies of the injured witnesses has categorically submitted that there is ample evidence against both the accused. He submitted that there is sufficient evidence against the lady accused. There was no grave and sudden provocation. It was further submitted that the accused had entered the house of injured, complainant as well as other relatives. It was further sought to be submitted by Mr. Soni, learned Additional Public Prosecutor that the presence of both the accused has never been doubted. Accordingly to Mr. Soni, learned Additional Page 7 of 16 Uploaded by DHARMENDRA KUMAR(HC01071) on Mon May 05 2025 Downloaded on : Sat May 17 03:17:11 IST 2025 NEUTRAL CITATION R/CR.RA/849/2016 JUDGMENT DATED: 25/04/2025 undefined Public Prosecutor, the only minor contradiction is with regard to the Medical Legal Certificate, which has been tried to be highlighted by the advocate of the accused. Mr. Soni, learned Additional Public Prosecutor also submitted that when the ocular testimonies and other medical evidence go hand to hand then this Court should not interfere its revisional jurisdiction under Section 397 of the Code. It was further submitted by Mr. Soni, learned Additional Public Prosecutor that out of four accused, two accused have acquitted and two accused are convicted. Therefore, the Trial Court as well as the Appellate Court have given due application of mind and therefore, he urged that the impugned judgments and orders do not warrant any interference by this Court.
[6] Having gone through the material on record and having heard learned advocates appearing for the respective parties, the issue for consideration pertains to the offence under Section 326 of the IPC. The prosecution has led the following documentary as well as the oral evidences:- Page 8 of 16 Uploaded by DHARMENDRA KUMAR(HC01071) on Mon May 05 2025 Downloaded on : Sat May 17 03:17:11 IST 2025
NEUTRAL CITATION R/CR.RA/849/2016 JUDGMENT DATED: 25/04/2025 undefined Oral Evidence:-
Sr.N Details of oral evidence Exh.
o.
1. Testimony of Femidaben Umarbhai 11
2. Testimony of witness Faridaben Umarbhai 17
3. Testimony of witness Sabirbhai Jamansha 24
4. Testimony of witness Sabirbhai Jamansha 51
5. Testimony of witness Akbarsha Imamsha Fakir 30
6. Testimony of witness Akbarsha Imamsha Fakir 52
7. Testimony of Panch witness Rasulbhai 31
Rahemanbhai Ghanchi
8. Testimony of muddamal recovery panch witness 32 Parvejkhan Abdul Samadkhan Pathan 9. 40 Testimony of Medical officer Dr. Paresh Kanaiyalal Kadiya
10. Testimony of Dr. Javedbhai Ahemadbhai Mansuri 48
11. Testimony of Investigating Officer Jayantilal 59 Mafatlal Makwana Documentary Evidence:-
Sr. Details of Documentary Eivdence Exh.
No.
1. Complaint. 15
2. Statement of Sabirbhai Jammubhai Fakir. 25
3. Statement of Sabirbhai Jammubhai Fakir. 26
4. Panchnama place of offence. 32
5. Panchnama of Muddamal recovery. 39
6. Medical certificates. 41, 42 &
49
7. Depute order. 60
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NEUTRAL CITATION
R/CR.RA/849/2016 JUDGMENT DATED: 25/04/2025
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[7] The main crux of the arguments canvased by learned
advocates for the parties is with regard to minor contradictions in the depositions of P.W.-2 and P.W.-3. After going through the testimonies of injured, Sabirbhai Jamansha, i.e., P.W.-3 below Exhibit '24', it can be categorically observed that there is a definite statement that Faridbhai had inflicted the wound with the weapon, i.e., knife and wounded the complainant. The injury was on the vital part, i.e., chest as well as right shoulder and finger of the left hand. Subsequent to such, injuries, he was hospitalized. However, the Trial Court has recorded that injured witness had gone to his sister-in-law's house and at the time of the incident, Faridbhai was present and inflicted blows to complainant on her forehead and Faridbhai inflicted wound to him at right part of the chest by knife and also at right shoulder and finger of left hand. He has also identified the accused before the court. However, the doctor who examined injured at Referral Hospital, Radhanpur deposed before the Court that when the injured was brought before him, he had asked about the history of the offence and at that time, the injured replied that the injury was caused to him by unknown person, which is Page 10 of 16 Uploaded by DHARMENDRA KUMAR(HC01071) on Mon May 05 2025 Downloaded on : Sat May 17 03:17:11 IST 2025 NEUTRAL CITATION R/CR.RA/849/2016 JUDGMENT DATED: 25/04/2025 undefined also reflected in the certificate marked Exhibit '41'. But, the victim was not a resident of the locality where the incident took place but he came to his sister-in-law's house and so if at the time of the treatment at the Referral Hospital, Radhanpur if he had not mentioned the name of the person who inflicted wound to him cannot be fatal to the prosecution case.
[8] Moreover, the ASI, Patan City Police Station has recorded the statement of Mr. Jabirbhai Jamansha Fakir on the day of the incident i.e. 24.04.2006. The testimony of this witness at Exhibit '25', it is reflected that quarrel had taken place between Faridmahammad Malekmahammad Sipai (Chuhan) and Akbarsha Imamsha Fakir and the injured victim intervened during the quarrel to persuade them and at that time Fakir Mahammad who was having knife in his hand inflicted wound on the chest and also palm of left hand and right shoulder. Not only that the witness also narrated the same story in his statement recorded by ASI, Radhanpur which is also exhibited. So it cannot be accepted that the injury was not caused by Faridmahammad Malekmahammad Sipai.
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NEUTRAL CITATION R/CR.RA/849/2016 JUDGMENT DATED: 25/04/2025 undefined [9] Further, there is a categorically finding that the witness, Akbarsha Imamsha Fakir admitted that he has given the name of the accused to his brother-in-law when his statement was recorded by the police. But merely the fact that name was given by the witness Akbarsha Imamsha Fakir to the injured cannot be the ground to disbelieve the deposition of the injured who identified the accused before the court. Not only that the deposition of the injured was also corroborated by other injured witness as to the involvement of the accused in the offence. If we peruse the whole evidence, there is nothing on the record which creates doubt that the name of the accused were given subsequently with a motive to indulge them in the false criminal case. In such circumstances, considering the evidence on the record, it is very difficult to accept that the witness Akbarsha Imamsha Fakir had given the name of the accused, so the name of the accused were given by the injured. Moreover, non- performance of the identification parade is not the fatal in the present matter, considering the relation of the accused with the other witnesses. The accused known to the other witnesses and Page 12 of 16 Uploaded by DHARMENDRA KUMAR(HC01071) on Mon May 05 2025 Downloaded on : Sat May 17 03:17:11 IST 2025 NEUTRAL CITATION R/CR.RA/849/2016 JUDGMENT DATED: 25/04/2025 undefined they have also given the evidence with regard to the presence of the accused at the place of offence.
[10] Apart from the above mentioned facts as well as the deposition of complainants, Sabirbhai as well as Dr.Paresh Kanaiyalal Kadiya below Exhibit '40', it can be categorically observed that the incident has been categorical described by all the witnesses and their accounts are duly supported by medical and other documentary evidences. The aspect that medical certificate has shown the name of the assailant as unknown and certain minor discrepancy and / or minor contradiction in the witnesses will not take away the genuineness of the credibility of ocular and documentary evidences.
[11] The revisional jurisdiction under Section 397 of the Code is a limited jurisdiction exercisable if the court below has committed a manifest illegality or the findings are perverse and based on misreading of evidence resulting into miscarriage of justice. The principles for exercise of revisional jurisdiction under Section 397 of the Code were highlighted in D. Stnbens Page 13 of 16 Uploaded by DHARMENDRA KUMAR(HC01071) on Mon May 05 2025 Downloaded on : Sat May 17 03:17:11 IST 2025 NEUTRAL CITATION R/CR.RA/849/2016 JUDGMENT DATED: 25/04/2025 undefined Vs Nosibolla [1951 SCR 284] as also in K.C. Reddy Vs State of Andhra Pradesh [1963 SCR 412]. In State of Maharashtra Vs Jag Mohan Sing Kuldip Sing Anand and others [(2004) 7 SCC 659], the Apex Court reiterated that the revisional power of the High Court under Sections 397 and 401 of the Code cannot be exercised as a second appellate power and that the High Court cannot, while exercising the revisonal power, undertake in-depth and minute re-examination of entire evidence and upset concurrent findings of the trial court and first appellate court.
[12] Keeping in view the parameters for exercise of revisional jurisdiction, it cannot be said that the orders passed by the courts below and the concurrent findings arrived at, are not proper.
[13] Therefore, on the basis of the discussion given hereinabove, the conviction rendered in the impugned judgments and orders cannot be overruled. The conviction qua both the applicants is hereby confirmed. As far as revisionist - Page 14 of 16 Uploaded by DHARMENDRA KUMAR(HC01071) on Mon May 05 2025 Downloaded on : Sat May 17 03:17:11 IST 2025
NEUTRAL CITATION R/CR.RA/849/2016 JUDGMENT DATED: 25/04/2025 undefined applicant No.1 is concerned, he has been given sentenced of 30 months. However, looking to the facts of the case that the incident is of the year 2006 and the nature of injury, the sentence is reduced for the period of 6 months. The revision application qua applicant No.1 is modified only to the above mentioned issue of sentence from 30 months to 6 months. As per the jail remark provided by Mr. Hardik Soni, learned Additional Public Prosecutor, the revisionist - applicant No.1 has undergone 22 days of incarceration. The revisionist applicant No.1 has given 4 weeks' time to surrender before the concerned authority.
[14] As far as revisionist - applicant No.2 is concerned, she has been convicted under Sections 323 read with Section 114 of the IPC for a period of 3 months. Even though her conviction has been upheld, looking to the fact that she is a female accused and her role is not as grievous as other revisionist - applicant No.1 and further aspect of the fact that her sentence is for only 3 months, her sentence is reduced only to the period of incarceration. Revisionist - applicant No.2 being a female Page 15 of 16 Uploaded by DHARMENDRA KUMAR(HC01071) on Mon May 05 2025 Downloaded on : Sat May 17 03:17:11 IST 2025 NEUTRAL CITATION R/CR.RA/849/2016 JUDGMENT DATED: 25/04/2025 undefined accused, she will not be required to undergo any further sentence. The revision application qua applicant No.2 is modified only to the aforesaid extent of sentence. [15] In view of the reasons given hereinabove, the conviction of the revisionist - applicant is confirmed and the revision application qua challenge to the order of conviction is rejected. However, the sentence qua both the applicants is modified to the extent mentioned hereinabove. The revision application is dismissed subject to the observation made hereinabove.
Sd/ (PRANAV TRIVEDI, J.) DHARMENDRA KUMAR Page 16 of 16 Uploaded by DHARMENDRA KUMAR(HC01071) on Mon May 05 2025 Downloaded on : Sat May 17 03:17:11 IST 2025