3 Whether Their Lordships Wish To ... vs State Of Gujarat

1 Whether Reporters of Local Papers may be allowed to NO see the judgment?

law as to the interpretation of the constitution of India, 1950 or any order made thereunder?

==================================== VINUBHAI BHIKHABHAI HELAIYA....Applicant(s) Versus STATE OF GUJARAT....Respondent(s) ==================================== Appearance:

MR P P MAJMUDAR, ADVOCATE for the Applicant(s) No. 1 MR KL PANDYA, APP for the Respondent(s) No. 1 ==================================== CORAM: HONOURABLE MR.JUSTICE G.B.SHAH Date : 03/05/2016 ORAL JUDGMENT

1. On 19/04/2016, this Court issued Notice, making returnable on Page 1 of 9 HC-NIC Page 1 of 9 Created On Thu May 05 02:21:30 IST 2016 R/CR.RA/242/2016 JUDGMENT 25/04/2016 and kept the matter for final hearing. Accordingly, the matter is heard finally.

2. Rule. Mr. K. L. Pandya, learned Additional Public Prosecutor, waives service of process of Rule on behalf of respondent - State.

3. Present revision application assails the judgment and order dated 15/09/2014, passed by the learned Additional Judicial Magistrate First Class, Amreli, in Criminal Case No. 1468 of 2010, whereby, while acquitting original accused Nos. 2 to 6 from the charge of offences punishable under Sections 143, 147, 148, 323 and 504 of the Indian Penal Code, 1860 (for brevity, 'the IPC'), the learned trial Judge convicted the present applicant

- original accused No. 1 for the offence punishable under Section 325 of the IPC and sentenced to undergo simple imprisonment for one year and a fine of Rs.1,000/­ and in default of payment of fine, to undergo, further simple imprisonment for two months, and the judgment and order dated 08/03/2016, passed by the learned Sessions Judge, Amreli, in Criminal Appeal No. 22 of 2014, whereby, the learned Sessions Judge confirmed the aforesaid judgment and order of the trial Court.

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4. Filtering the unnecessary details the facts of the prosecution case are that on 25/07/2010 at about 9:00 p.m., when the original complainant was returning to his home on his motorcycle, the applicant herein - original accused No. 1, allegedly keeping grudge against the complainant, attacked the complainant with an iron pipe. The other accused also allegedly assaulted and abused the complainant. In the incident, the complainant sustained injuries. Thus, the accused committed the offence alleged against them, for which a complaint came to be lodged.

5. Heard, Mr. Krutarth Pandya, learned advocate for Mr. P. P.

Majmudar, learned advocate for the applicant - original accused No. 1 and Mr. K. L. Pandya, learned Additional Public Prosecutor for the respondent - State.

5.1 Mr. Krutarth Pandya, the learned advocate for the applicant -

original accused No. 1, submitted that both the Courts below have committed a grave error in convicting the applicant ­ accused. It was contended by him that the judgments and orders of the learned Courts below are against the provisions of law; the learned Courts below have not properly considered the evidence on record and looking to the provisions of law itself, it is Page 3 of 9 HC-NIC Page 3 of 9 Created On Thu May 05 02:21:30 IST 2016 R/CR.RA/242/2016 JUDGMENT established that the prosecution has failed to prove the whole ingredients of the offence against the applicant - accused. The learned advocate for the applicant - accused submitted that there are material contradictions and omissions in the evidence of the prosecution witnesses. Moreover, he submitted that the exact date and time and/or the fact of illegal act by the applicant do not forthcoming on record by evidence of any of the prosecution witnesses, which creates doubt in the case of the prosecution and the said aspects, the learned trial Judge as well as the first Appellate Court have failed to appreciate in true perspective. He submitted that the allegations against the applicant are baseless and highly improbable. He submitted that the Medical Officer, who has been examined at exh. 44 had not treated the complainant but he had only taken the x­ray of the complainant in which, no sign of fracture was detected. Moreover, there is nothing on record to show that the complainant had sustained fracture. Further, the said Medical Officer had given the primary treatment to the complainant. In that view of the matter, the learned advocate for the applicant submitted that the learned Courts below have materially erred in not properly appreciating and evaluating the evidence on record and thereby, holding guilty to the present applicant and imposing such a sentence, Page 4 of 9 HC-NIC Page 4 of 9 Created On Thu May 05 02:21:30 IST 2016 R/CR.RA/242/2016 JUDGMENT which requires interference of this Court and eventually, he requested to allow the present revision application by setting aside the impugned judgments and orders.

6. Whereas, Mr. K. L. Pandya, learned Additional Public Prosecutor, for the State supported the impugned judgments and orders and submitted that the same having been passed in accordance with law, does not call for any interference. He submitted that the prosecution has proved the case against the applicant beyond reasonable doubt and accordingly, the trial Court has come to such a conclusion, which got ratification of the learned first Appellate Court, and accordingly, in his submission, when there are two concurrent findings of two learned Courts below, this Court may not interfere in the revision application filed by the applicant - accused and requested to dismiss the same.

7. I have heard the learned advocates for the respective parties and gone through the record and proceedings of the case on hand. I have also gone through the impugned judgments and orders of both the learned Courts below. On going through the the evidence on record, more particularly, the deposition of the injured witness ­ complainant - Ramjibhai Karsanbhai Makwana, Page 5 of 9 HC-NIC Page 5 of 9 Created On Thu May 05 02:21:30 IST 2016 R/CR.RA/242/2016 JUDGMENT exh. 22, he has supported the case of the prosecution in clear terms. Even from his cross­examination nothing contradictory to the case on prosecution has come on record and he has fully supported his case. Further, I have also gone through the evidence of other prosecution witnesses, more particularly, Jethabhai Rambhai, exh. 42, who has also supported the case of the prosecution and stated in his deposition that the accused No. 1 and other persons had assaulted the injured complainant. This witness also, identified the present applicant - accused in the Court below and thereby, has supported the case of the prosecution. Moreover, on going through the deposition of Karsanbhai Devabhai Sondarva, exh. 43, who is the eye­witness to the incident, he has also supported the case of the prosecution clearly and stated in his deposition that the accused had attacked the injured complainant with pipe and also gave the kick and fist blows and thereby, caused injuries to him. Further, the prosecution has also examined Shamjibhai Rajabhai Makwana at exh. 39, Vashrambhai Somabhai Madhad at exh. 40. Medical Officer - Dr. Dharmesh Pravinchandra Gandhi, who had treated the injured complainant after the incident in question, is examined at exh. 44. In his deposition, he has narrated in all four injuries, sustained by the injured complainant. He has also Page 6 of 9 HC-NIC Page 6 of 9 Created On Thu May 05 02:21:30 IST 2016 R/CR.RA/242/2016 JUDGMENT produced the Medical Certificate of the complainant at exh. 46 describing the injuries to the complainant. He has stated in his deposition that considering the x­ray, fracture was found on the hand of the injured complainant and the complainant had sustained grievous injuries and was discharged on 30/07/2010 by the orthopedic doctor. However, he has admitted in his deposition that he has not narrated all the injuries in the certificate and according to him, the same have to be narrated in the case papers of a patient. Thus, considering the oral as well as the documentary evidence on record and re­appreciation and reevaluation of the same, I am of the considered opinion that the learned Courts below have committed no error, which requires interference. An attempt was made by the learned advocate for the applicant - accused that almost all the prosecution witnesses are relatives and acquaintances of the complainant and hence, solely on their evidence, conviction cannot be upheld. This assertion may be true in absence of any corroborative piece of evidence. In the case on hand, almost all the prosecution witnesses support the case of the prosecution. There appears no material contradictions and/or improvement in their versions, before the Investigating Officer and before the trial Court. Moreover, the complainant and the medical evidence also get Page 7 of 9 HC-NIC Page 7 of 9 Created On Thu May 05 02:21:30 IST 2016 R/CR.RA/242/2016 JUDGMENT corroboration with the facts of the prosecution case. Under the circumstances, the said assertion cannot be said to be of any help to the learned advocate for the applicant - accused. 7.1 Moreover, it appears that both the Courts below, while considering the case on hand, have very elaborately discussed the evidence on record and they have been extensively dealt with by the learned Courts below. Further, the learned advocate for the applicant - accused is not in a position to show any evidence to take a contrary view in the matter or that the approach of the Courts below is vitiated by some manifest illegality or that the decisions are perverse or that the Courts below have ignored the material evidence on record. In above view of the matter, I am of the considered opinion that the learned Courts below are completely justified in passing impugned judgments and orders. 7.2 I am, therefore, of the considered opinion that the findings recorded by the trial Court and confirmed by the learned first Appellate Court in convicting the applicant - original accused No. 1, are absolutely just and proper and in recording the said findings, no illegality or infirmity has been committed and the Court is in complete agreement with the reasonings given and Page 8 of 9 HC-NIC Page 8 of 9 Created On Thu May 05 02:21:30 IST 2016 R/CR.RA/242/2016 JUDGMENT the findings arrived at by the learned Courts below. No interference is warranted in the impugned judgments and orders of the learned Courts below.

8. In the above backdrop, present revision application is dismissed.

The impugned judgments and orders of the trial Court as well as the first Appellate Court, are hereby, confirmed. Rule is discharged. Registry to return the R&P to the concerned Court below, forthwith.

[ G. B. Shah, J. ] hiren Page 9 of 9 HC-NIC Page 9 of 9 Created On Thu May 05 02:21:30 IST 2016