Balvantbhai Alias Bamabhai S/O ... vs State Of Gujarat
2023 Latest Caselaw 5898 Guj

                                                                              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

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

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

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

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

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