Gujarat High Court
Somaji Bawaji Thakore vs The State Of Gujarat on 7 February, 2024
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R/CR.A/1556/2006 JUDGMENT DATED: 07/02/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 1556 of 2006
FOR APPROVAL AND SIGNATURE:
HONOURABLE MRS. JUSTICE M. K. THAKKER
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1 Whether Reporters of Local Papers may be allowed NO
to see the judgment ?
2 To be referred to the Reporter or not ? NO
3 Whether their Lordships wish to see the fair copy NO
of the judgment ?
4 Whether this case involves a substantial question NO
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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SOMAJI BAWAJI THAKORE
Versus
THE STATE OF GUJARAT
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Appearance:
MR VIRAT G POPAT(3710) for the Appellant(s) No. 1
MS MONALI BHATT, ADDL.PUBLIC PROSECUTOR for the
Opponent(s)/Respondent(s) No. 1
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CORAM:HONOURABLE MRS. JUSTICE M. K. THAKKER
Date : 07/02/2024
ORAL JUDGMENT
1. The present appeal is filed under Section-374 of the
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Cr.P.C. challenging the judgment and order dated 28.07.2006
passed by the learned Additional Sessions Judge, Deesa at
Banaskantha in Sessions Case No.54 of 2003, whereby, the
appellant - original accused no.1 has been convicted for an
offence under section-324 of IPC and ordered to undergo
sentence of rigorous imprisonment of 04 months with fine of
Rs.500/- and in default of, further period of one month of
simple imprisonment was ordered.
2. The case of the prosecution is in nutshell as under:-
2.1 That one complaint came to be registered on 19.08.2002
by the complainant viz. Taljabhai Bhurabhai Thakor residing at
village - Tervala before the P.S.I., Tharad Police Station alleging
that at 4:00 o'clock in evening hours, the complainant and his
cousin brothers viz.(1) Govabhai Laghabhai and (2)
Rameshbhai Palabhai were returning from the Bhabhar after
purchasing the household articles and when they reached to
the field of the complainant, the accused no.1 viz. Somabhai
Bavaji, who met them on the road and hot altercation started
with regard to the incident occurred prior to 10 days where the
aunty of the accused was molested by Govabhai Lagabhai and
the accused no.1 had reprimanded to the complainant,
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accused No.1 started abusing to Govaji and when Govaji was
instructed not to use the said abusive language, an assault
was made with Dhariya on Govaji and Govaji was fallen down.
The second blow was also inflicted with dhariya and thereafter,
other accused i.e. Harji Bavaji, Valaji Banaji and Bhavaji Manaji
were reached to the place of incident having stick and wooden
log on their hand. The complainant i.e.Taljabhai and Rameshji
ran away from the place and Govaji was beaten by the accused
persons. On shouting, the mother of Govaji viz.Pujiben and
aunty viz.Vediben intervened and thereafter, the accused
persons ran away from the place of incident. With the
aforesaid allegations, an FIR came to be registered being C.R.
No.I-96 of 2002 before the Tharad Police Station for the offence
punishable under Sections-307, 323, 504, 34 of the IPC and
Section-135 of the Bombay Police Act.
2.2 That cross FIR was also registered being C.R.No.II-75 of
2002 before the Thara Police Station for the offence punishable
under Sections-323, 504, 506(2), 114 of Indian Penal Code and
Section-135 of B.P. Act. Both the offences were investigated
and after collecting the material, the charge-sheets were
submitted before the competent court, wherein, present
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offence as Criminal Case No.628 of 2002 is triable by the
learned Court of Sessions under Section 209 of the Cr.P.C., the
same is committed to the learned court of Sessions. Other case
was also tried by the same Court and the same was
renumbered as Criminal Case No.54 of 2003. That learned
Court on being satisfying about receiving chargesheet papers
by the respondent - accused, charge was framed below Exh.2
against the accused persons for the offence punishable under
Sections-504, 307, 323 r/w.34 of IPC and Section-135 of B.P.
Act. The charge was read and explained over to applicant-
accused and plea was recorded below Exh.3, wherein, the
accused pleaded not guilty and claimed to be tried.
2.3 That to bring home the guilt of the accused, the
prosecution had examined 12 witnesses and also produced
documentary evidence on record. On filing the closing pursis,
the statement under Section-313 of the Cr.P.C. was recorded,
whereby, all incriminating material was placed before the
accused, and the accused had pleaded false implication and to
be innocent in the case, however, accused did not produce any
documentary evidence neither examined any witness in
defence. After considering all the material place before the
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learned trial Court and argument advanced by the respective
parties, the learned trial Court acquitted all other accused
except accused no.1 for Section324 of IPC and the accused
no.1 was convicted for the offence punishable under Section-
324 of IPC and was ordered to undergo sentence of four
months rigorous imprisonment with fine of Rs.500/- and in
default, further simple imprisonment of 01 month was ordered
to undergo, which is impugned before this court.
3. Heard Ms. Sweta Lodha for Mr. Virat Popat, learned
advocate for the appellant - original accused no.1 and Ms.
Monali H. Bhatt, learned APP for the respondent - State.
4. Ms. Sweta Lodha for the appellant - original accused
no.1 submits that the present FIR and the prosecution is the
counter-blast of the FIR filed by the appellant side. As reveals
from the evidence, the complaint, which is registered by the
present appellant was lodged at 7:30 p.m. on 19.07.2002,
whereas, the complaint of the present case was registered at
9:30 p.m. on 19.07.2002. This fact prove through the
deposition of P.W. 12 - Investigating Officer as well as from the
P.W.5. That the incident, which is alleged to have been
occurred at 4:00 p.m., however, the first visit to the doctor,
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where the doctor examined to Govaji at 7:20 p.m. Learned
advocate on relying on the deposition of P.Ws.5, 6, 7 and 8
submitted that they have decided to file FIR after coming into
the knowledge with regard to the cross-FIR, which has been
filed by the appellant. Learned advocate further submits that
as per the version of P.W. 7, the present appellant was armed
with Dhariya, which was not stated before the I.O. as per the
testimony recorded at P.W.12. Learned advocate relies on the
evidence of the P.W.5 viz.Taljabhai Bhurabhai Thakor and
submitted that as per his version, the appellant met them on
the way and verbally abused and thereafter, incident was
occurred in a spur or moment. From the evidence of P.W.6, who
is injured witness has admitted in his cross-examination that
the appellant was working in his farm, when the incident took
place and therefore, the version, which is mentioned in chief-
examination that the appellant was waiting for the
complainant, was contradicted by their own version.
5. Learned advocate further submits that as per the version
of eye-witness, genesis of complaint is the dispute which was
taken place prior to 10 days of incident. However, in the cross-
examination, the said witness denied with regard to the
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incident, who is aunty of the present appellant. Learned
advocate further submits that as per the version of P.W.7 viz.
Rameshji Valaji Thakor, the incident was taken place because
of the cutting of neem tree, however, from the evidence of
P.W.12 of the Investigating Officer, the said version was
falsified and submitted that during the investigation, the same
was not found to be true. Learned advocate further submits
that P.W.1 i.e. Alkaben Umeshbhai Jhaveri, who is the Medical
Officer stated in her version that there are 02 head injuries
caused to the injured with sharp cutting weapon and third
injury was caused through blunt weapon. The Medical Officer
has also accepted that the injuries were established by the
dariya would be curved in nature, whereas, the injury from the
knife would be on straight in nature. It is admitted by the
doctor that both injuries are corresponding injuries. As per the
version of doctor, the injuries were simple in nature. Learned
advocate further submits that from the panchnama of place of
incident, indicates that there is no any blood found from the
place, where the incident had taken place. There was no any
bloodstain found from the dhariya, which is alleged to have
been used in the incident. Though there is blood found from
the clothes of present appellant, however, no FSL report was
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sought for by the Investigating Officer to suggest that the
blood group is of the injured witness, in fact, when the cross-
FIR was also registered, and the appellant has also received
injuries and therefore, there are all chance to have the blood
on his own in the clothes. Learned advocate also relies on the
P.W.12 i.e. Hamirsinh Takhaji Zala and submitted that there is
no evidence of any independent witness though they were
available at the place of incident. From the evidence of this
witness, it also comes on record that field of Ratanben and
Govaji were adjoining to each other. Therefore, cause of
quarrel as projected by the applicant appearing to be false.
6. At last, learned advocate submits that the appellant has
undergone imprisonment of 28 days as a under-trial prisoner
and though 18 years have passed, there was no any untoward
incident reported except this, therefore, if the Court comes to
the conclusion that the judgment and order passed by the
learned trial Court is just and proper, the benefit of probation
of offenders act be given to the present appellant or the
remaining sentence be converted into fine. By summoning up
the argument, learned advocate prays to quash the impugned
judgment and order of conviction and allow the present appeal.
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7. As against the same, learned APP for the State has
submitted that from the evidence of Medical Officer, it
transpired that the appellant was having the deadly weapon in
his hand and had inflicted two blows on the vital part of the
body by the dhariya i.e. muddamal weapon. It is established
that the same is sharp cutting weapon and therefore, recovery
of the muddamal was corroborated with the evidence of the
Medical Officer. Learned APP submits that cross complaint was
registered by the appellant side, which itself suggests the
presence and occurrence of the incident. Learned APP submits
that from the explanation offered for delay in FIR by the
complainant in his evidence at Exh.21, that due to non-
availability of the vehicle, the time was taken to bring the
injured to the hospital and therefore, some delay occurred in
lodging the FIR. However, as the priority is always to be given
to provide medical treatment, therefore delay would not fatal
the case of prosecution. Learned APP relied on the panchnama
of place of offence and submits that the place of offence is
near to the field of the accused, which suggests that the
version narrated by the complainant and the injured is true and
correct. Learned APP further submits that in absence of the FSL
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report, conclusion cannot be drawn of false prosecution and
after considering all evidence in detail, the learned trial Court
is justifying the appellant convicting him for the offence
punishable under Section-324 of IPC and ordered to undergo
sentence of 04 months rigorous imprisonment and therefore,
no interference is required and prays to dismiss the appeal.
8. Considering the argument advanced by the learned
advocates for the respective parties and the records, the
following evidences are required to be dealt with in detail.
(A) Medical Evidence:
(i) The prosecution has examined the Medical Officer at P.W.1
Dr. Alkaben Umeshbhai Jhaveri, who deposed in her evidence
that on 19.08.2002, when she was serving as Medical Officer
at CHC. Thereafter, at around 7:30 in evening hours, Govaji
Laghaji Thakor came for taking treatment. She has examined
him and recorded history as per his version. He disclosed that
the dhariya blow was inflicted by Somaji Bhalaji. On examining
the said witness, three injuries are found i.e.(i) sharp cutting
wound over the mid parital region around 3 cm long X 0.5 cm
broad and bone deep; (ii) sharp cutting wound over the
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occipital region i.e. 4 c.m. long X 0.5 c.m. broad and bone
deep and (iii) swelling an tenderness over the middle place of
left forearm. After the primary treatment, the injured was
referred to the Civil Hospital, Patan. The injuries nos.1 and 2
can cause by sharp cutting weapon and injury no.3 can cause
with blunt weapon. In the cross-examination, she deposed that
injuries caused from sickle dhariya would curved in nature. She
clarified that it depends that which part of dhariya was inflicted
to the injured. She admits that as there is no muscles on the
head and therefore, if the person sustained simple injury, then
also, there is possibility to have deep injury on the head.
(ii) The another Medical Officer, who was examined by the
prosecution is Dr. Tarachand Maheshwari, P.W.7, who was
serving as Medical Officer at General Hospital, Patan. From his
evidence, it transpired that on 20.08.2002 at 1:30 o'clock in
afternoon, Govaji Laghaji came who referred from the Medical
Officer, Tharad. On examining, it was found that there were
stiches on the head, bruises on left arm. On x-ray being taken,
everything was found to be in normal. The injury, which is
opined by the witness was of simple in nature. He produced
the certificate at Exh.29. No any incriminating material was
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found in cross-examination in support of defence.
(B) Evidence of Hostile Witness:
The prosecution further examined the Somaji Harjiji Thakor,
P.W.2, hostile witness, who is panch-witness of place of offence,
he did not support the case of prosecution. The panch-witness
with regard to recovery of weapon i.e. Parkhanji Thakore was
examined as P.W.3, who also declared hostile. The independent
witness about scene of incident, P.W.4 viz Vejiben Thakor, who
also declared hostile. In the cross-examination, she deposed
that there were many cases pending against the Govaji. The
witness namely Velaji Dharsiji, P.W.9, a panch-witness of place
of offence as well as Valaji Dhudaji, P.W.10, panch-witness of
recovery of weapon were declared hostile.
(C) Evidence of Eye Witnesses and Injured Witnesses
(i) The prosecution has examined the eye-witness and injured
witness/ relative witness of complainant i.e. Taljaji Bhuraji
Thakor, P.W. 6; Govaji Ladhaji, P.W.6; and Rameshji Valaji
Thakor, P.W.7. From the evidence of all these witnesses, it
comes on record that when they were returning from Bhabhar
after purchasing the household articles, Soma Bavaji met them
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near the field of the complainant. He was using abusive
language and therefore, P.W.5 asked not to use abusive
language, Soma Bavaji inflicted blow of dhariya on the head of
Govaji and thereafter, the accused persons viz. Harji Bavaji and
Manaji came there and they had given stick blow to Govaji.
Due to injury sustained by Dhariya, Govaji was fallen down. On
shouting, Puniben and Vediben came there for rescue.
Thereafter, the accused persons ran away from the place of
incident and Govaji was taken to the hospital by Bhuraji
Mohanji in the jeep and P.W.5 went to the police station for
lodging the FIR. It is deposed that the reason for the quarrel
was with regard to the incident, which was occurred prior to 10
days. It is also admitted that the place of offence is near the
field of the accused.
(ii) In the cross-examination, it is admitted that during the
evening hour, all are working in their field. The name of aunt of
Somaji is the Ratanben. The field of Ratanben is adjoining the
field of Somaji. P.W. 5 and P.W.7 did not intervene as they were
scared. On being informed that the appellant lodged the FIR,
the complainant and the family members were gathered and
lodged the FIR. The field is very far therefore the vehicle is to
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be called and therefore, delay occurred in taking the injured to
the hospital. P.W.6 was going to the house by passing through
the field of Soma Bava. On day of incident, Somaji was working
in his field. P.W.6 knows the Somaji and his aunty i.e. Ratanben
and field of Ratanben and field of P.W.6 are adjoining. P.W.6 did
not disclose in the police statement that accused were hiding
and waiting for the complainant. Soma Bavaji had lodged the
FIR, they have decided to lodge the FIR and therefore, the
complainant and family members were gathered.
(iii) The last witness P.W.8 - Bhurabhai Mohanji Thakore, the
uncle of the complainant was examined. He was not an eye-
witness, only he had accompanied to the injured in the
hospital. The witness i.e. Ladjiji Amraji, P.W.11, who was the
panch-witness about recovery of cloth of the injured. This
witness supported the case of the prosecution by deposing
that the bloodstain were found.
(C) Police Witness:
The last witness Hamirsinh Takhaji Zala was examined below
P.W. 12 and as discussed earlier, he deposed that during his
investigation, the cause of quarrel is with regard to the
incident, which was occurred prior to 10 days about the
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molesting of Ratanben by Govaji. He deposed that the
complaint of Somaji Bhavaji was lodged at 19:30 hours on
19.07.2002. He had admitted that he had not seen the injured.
The FIR was exhibited through this witness below Exh.38.
(9) Appreciation and conclusion:
The documentary evidence, which was placed on record, which
may be in the nature of place of panchnama, Exh.17, which
was proved through the evidence of P.W.12, which suggests
that the household articles were lying at the place of offence.
The evidence of the injured witness and other eye-witness
regarding return from the Tharad after purchasing the
household articles was corroborated with place of panchnama
Exhibit 17. From the cross-FIR, which was registered by the
appellant-side, suggests that the presence of the present
appellant at the place of offence, the reason for quarreling was
different from the evidence of the prosecution witness, but
causing injury with the deadly weapon on the vital part of the
body of the present appellant to the Govaji would certainly
attract the provision of Section-324 of the IPC. The defence
had tried to falsified the case on the basis of delay in lodging
the FIR, however, as it is explained by the prosecution witness
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that there was some time occurred in calling the vehicle and
after the P.W.6 was taken to the hospital and P.W.5 went to
lodge the FIR. As delay in every matter would not fatal in the
prosecution, therefore, the delay of 04 hours would not fatal
the case of the complainant.
9. One more aspect i.e. the history was given before the
doctor also reflects the name of the present applicant, who
caused injury by the Dhariya, also inspired the confidence on
the case of the prosecution. Though accused had tried to take
the defence that knife was the weapon, whereby, the injury
was caused, but that was denied by the Medical Officer in his
evidence. The learned advocate for the appellant had argued
that after coming into knowledge with regard to the cross-FIR,
the complainant and the family members has decided to lodge
the FIR against the appellant. Even if that is so, then also, the
same would not falsify the case as from the evidence of the
complainant and other witness, it transpired that on receiving
the injury by the P.W.6, first he was taken to the hospital and
thereafter, P.W.5 approached the police station. Therefore,
even if the FIR was lodged after coming into the knowledge
with regard to the cross-FIR, same would not also help to the
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accused persons and thereby the accused can not be said to
be falsely implicated.
10. After considering the overall evidence, ts this Court is of
the view that the accused had given the Dhariya blow on the
head of the P.W.6, the muddamaal Dhariya was recovered from
the accused. The endorsement by the doctor in the history that
injury was caused by the accused as well as other witnesses
testified that on a particular date and time on the P.W.6 attack
was made by Dhariya, which is sharp cutting weapon as well
as by the Lathi, which hard blut substance, inspire evidence.
further it was corroborated with the evidence of injured witness
as well as the medical report. Testimony of the doctors about
the weapon used by the appellant was found trustworthy.
Delay in lodging the FIR was also not fatal in view of the
explanation that they had first taken the injured to the
hospital. Considering the same, the conviction of the appellant
is held proper and there is no illegality, impropriety and
perversity in the impugned judgment and order passed by the
learned trial Court.
11. As the accused was convicted under Section 324 of the
Indian Penal Code and remained in custody for the period of
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28 days and 18 years have been passed of the incident and
there was no any untoward incident reported as well as
considering the nature of injury, which is simple, this Court
deems it fit to convert the conviction into the undergone
period.
12. In view of the above, the present appeal is partly allowed.
The judgment and order of conviction passed by the learned
trial Court in the Sessions Case No.54 of 2003 is hereby
confirmed, however, the sentence, which is imposed by the
learned trial Court, is altered into the undergone period.
13. In view of the above, the appeal is disposed of
accordingly. The Record and Proceedings be sent back to the
concerned Court forthwith.
(M. K. THAKKER,J)
M.M.MIRZA/ ARUNA
