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
undefined
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/
==================================================
Approved for Reporting Yes No
✔
==================================================
FARIDMAHAMMAD MALEKMAHAMMAD CHAUHAN & ANR.
Versus
STATE OF GUJARAT
==================================================
Appearance:
MR P P MAJMUDAR(5284) for the Applicant(s) No. 1,2
MR. HARDIK SONI, APP for the Respondent(s) No. 1
==================================================
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
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
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
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.
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
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.
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
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:-
NEUTRAL CITATION
R/CR.RA/849/2016 JUDGMENT DATED: 25/04/2025
undefined
Oral Evidence:-
Sr.N Details of oral evidence Exh.
o.
5. Testimony of witness Akbarsha Imamsha Fakir 30
6. Testimony of witness Akbarsha Imamsha Fakir 52
Rahemanbhai Ghanchi
8. Testimony of muddamal recovery panch witness 32
Parvejkhan Abdul Samadkhan Pathan
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.
6. Medical certificates. 41, 42 &
NEUTRAL CITATION
R/CR.RA/849/2016 JUDGMENT DATED: 25/04/2025
undefined
[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
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.
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
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
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 -
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
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
