| SooperKanoon Citation | sooperkanoon.com/917355 |
| Subject | Criminal |
| Court | Gujarat High Court |
| Decided On | May-07-2011 |
| Case Number | Case No. 104/2004 |
| Judge | A Kureshi |
| Acts | Indian Penal Code (IPC) 1860 - Sections 307, 325, 504, 114; Bombay Police Act - Section 135; |
| Appellant | Sandipbhai Bhanubhai Meckwan |
| Respondent | State of Gujarat and anr |
| Cases Referred | Deepak Kumar v. Ravi Virmani and Anr. |
2. As per charge exh.4, it was alleged against the appellants that they along with other accused i.e. accused Nos. 3 and 4 had assaulted complainant Jayantibhai-PW9 and his brother Mahendrabhai-PW10 on 4.9.2001 near their house. Accused No. 1 Sandeep had given several knife blows to Mahendrabhai on his chest, on his stomach and on his back etc. Budha had given stick blow to complainant Jayantibhai causing fracture on two fingers of his right hand. The other accused had pushed the complainant and abused him. All the accused were therefore, charged with offences punishable under Sections 307, 325, 504 read with Section 114 of the Indian Penal Code and Section 135 of the Bombay Police Act. Accused Nos. 3 and 4 were acquitted. Accused Nos. 1 and 2 are therefore, before this Court in the present appeal.
3. Complainant Jayantibhai Peterbhai Makwan-PW9(exh.32) stated in his deposition that he along with his brother Mahendrabhai were residing in Khristi Mohalla. On 4.9.2001, in the afternoon, he was sleeping at his house. At that time two people had come inquiring about him. His sister-in-law Pushpaben therefore, had come out of the house and woken him since the unknown people were looking for him. When he came out, the visitors asked for liquor. He told them that he does not do this business and inquired from them as to who gave his name. The visitors gave the name of Budha accused No. 2 to whom the witness identified before the Court. The visitors and witness thereupon went to the Pan shop of Budha. The witness and Budha therefore, had verbal altercation. The issues were however, settled. Thereafter, at about 8:15 at night when he, his brother Mahendrabhai and his wife Pushpaben were preparing to have dinner, accused No. 1 Sandeep had come to their house using foul language along with Budha accused No. 2. His brother Mahendrabhai had therefore, come out of the house and tried to pacify Sandeep. He had also come out of his house at which time, Sandeep got excited, took out a knife from his pocket and gave blows to Mahendrabhai. When he tried to intervene, Budha gave a stick blow which he received on his hand breaking his finger. The other accused were also instigating Sandeep and Budha. Mahendrabhai had fallen down bleeding profusely. He saw that he had got two knife blows on the left side of chest, one on the abdomen and one on the side of the shoulder. The accused had thereafter, run away. He and Pushpa with help of others had carried Mahendrabhai in a Rickshaw to Karamsad Shri Krishna Hospital. To the Doctor he has given history of Mahendrabhai being stabbed by Sandeep with knife. Mahendrabhai was rushed to the operation theater. Doctor had told him that Mahendrabhai's kidney had got damaged with stab wound and it shall have to be removed. Mahendrabhai's kidney was removed. He had filed complaint with the police. He identified the Muddamal articles knife and stick which according to him were used in the commission of offence. He also identified all the accused before the Court.
3.1 In the cross examination, he stated that the houses of the accused are situated at a short distance from the house of Mahendrabhai. He agreed that Mahendrabhai and accused No. 1 Sandeep had quarrel about a dog. He denied that appellant was arrested in connection with the incident on 4.9.2001. He however, agreed that Sandeep and Budha were also under treatment at Shri Krishna Hospital the same night. He however, did not know whether Budha had received fracture on his elbow.
4. Mahendrabhai Peterbhai Makwan-PW10 was examined at exh.34. In his deposition, he stated that in the afternoon of 4.9.2001 when he was at his home and his brother Jayantibhai was also sleeping, two unknown persons came there looking for Jayantibhai. His wife Pushpaben therefore, came out and thereafter, had called Jayantibhai. Upon his inquiry, he was told that people had come to buy liquor. They had therefore, gone to the Pan Shop of Budha. There they had a verbal quarrel but the issues were settled there. At about 8:15 at night when he, his wife and brother Jayantibhai were sitting down to have dinner, accused No. 1 Sandeep had come there using foul language. Budha was also with him. After some conversation, Sandeep suddenly took out a knife from his pocket and gave knife blows to him. Two blows were given on the left side of the chest, one in the abdomen and one on the back of the shoulder. Budha was winding the stick. Witness had fallen down due to blows and lost consciousness. One of his kidney was ruptured and had to be removed. He identified the accused before the Court as also the weapon namely knife and stick used in the commission of the crime.
4.1 In the cross examination, he agreed that on 4.9.2001 on account of power cut, there were no light between 8:00 to 8:30 in the street. He did not know whether Budha had also received fracture or that Sandeep was hit on the head with a stick.
5. Dr. Vijaykumar Singh-PW14 was examined at exh.47. He was surgeon at Karamsad Medical Hospital at the relevant time. He stated that Dr.Krunal Kothari had issued injury certificate of Jayantibhai which was produced at exh.48. Dr. Vijaysing had treated Mahendrabhai. He had found that patient had stab wound on the left side of the chest and another near the underarm. One more stab wound was on the right side of the back and one on the left side of the waist near kidney. The patient was required to be taken urgently for operation. His blood pressure was low. During operation, it was found that blood has got accumulated in the cavity of the stomach. Upon cleaning the blood it was revealed that vein coming out of the kidney was severed. There was a wound on the kidney also. He had no option but to remove the kidney. Accordingly he had removed the left kidney. Patient required 10 to 12 bottles of blood. He was kept in ICU. Though he produced injury certificate of this patient at exh.50, it was issued by Dr. Krunal Kothari. He was of the opinion that injuries could have been caused by sharp cutting weapon such as knife. Injury on the chest and near kidney, according to him,both were serious.
5.1 In the cross examination, he agreed that accused Budha as well as accused Sandeep were also treated in the same hospital for minor injuries. They were however,not admitted as indoor patient.
6. Dr. Mehul Babubhai Patel-PW15(exh.53) was surgeon at Karamsad Hospital at the relevant time. He stated that Mahendrabhai was admitted in the hospital on 4.9.2001 and discharged on 25.9.2001.
7. Bharatkumar Chimanlal Barot-PW16(exh.58) was the Investigating Officer. He described the manner in which the investigation was carried out. He also stated about the drawing of various panchnama including panchnama leading to recovery of weapons of offence at the instance of the accused. He had collected different articles such as clothes worn by injured and sent them for chemical analysis. He had also sent the knife allegedly used in the offence for analysis. All articles such as Shirt, Pant, Handkerchief, footwear, etc. detected presence of blood of group "O". Though knife also had human blood stains,the group thereof could not be ascertained.
8. It is on the basis of above evidence that prosecution sought to sustain the charges.
9. As noted, Sandeep accused No. 1 was convicted for offences punishable under Section 307 of the Indian Penal Code and Section 135 of the Bombay Police Act and sentenced to rigorous imprisonment of seven years and simple imprisonment of two years respectively. Budha accused No. 2 was convicted for offences punishable Section 325 of the Indian Penal Code and Section 135 of the Bombay Police Act and sentenced to simple imprisonment of five years and two years respectively.
10. Learned advocate Shri Pradeep Patel for the appellant vehemently submitted that learned trial Judge committed error in holding the accused guilty of the offences. He submitted that the evidence on record was neither sufficient nor relevant. No independent witnesses were examined. Though the incident took place in full public view, only the complainant and his brother were cited as eyewitnesses. It was contended that even their testimony does not inspire confidence. There are material contradictions and improvements. It was contended that there was admittedly previous enmity between the parties and the possibility of accused being falsely implicated therefore, cannot be ruled out. He submitted that the prosecution had not explained injuries on the body of the accused.
10.1 Reliance on the decision of Sheikh Hafeez v. The State of Bihar , was placed wherein the Apex Court observing that the prosecution has not given true version of the origin of the fight,the accused were given benefit of doubt.
10.2 Reliance was also placed on the decision of Kansa Behera v. State of Orissa , wherein though the blood stained clothes were recovered from the accused, blood group thereof was not indicated. The Apex Court therefore, found that no reliance on such a circumstance therefore, could be placed. It was argued that in the present case also the group of blood detected from the knife has not been ascertained.
10.3 Reliance was also placed on the decision of Surinder Singh v. State of Punjab reported in 1989 Supp(2) Supreme Court Cases 21, wherein also when the prosecution failed to establish the group of blood found from the knife, the Apex Court took the said factor into account along with other grounds to acquit the accused.
10.4 Reliance was also placed on the decision of Bholaprasad v. State of Maharashtra , wherein on account of material discrepancy in the dying declaration and eye witness account regarding identification of the assailant, the Apex Court was pleased to acquit the accused.
10.5 Reliance was also placed on the decision of Sunder v. State (N.C.T. of Delhi) , where the panch witness to the recovery of weapon from the accused turned hostile. The Apex Court observing that the prosecution did not think it appropriate to examine the head constable and ASI who were also witnesses to the Panchnama held that seizure of knife from the appellants had not been proved.
10.6 Reliance was also placed on the decision of Deepak Kumar v. Ravi Virmani and Anr. , wherein the Apex court on several grounds besides the ground of non examination of independent witnesses despite availability, acquitted the accused.
11. In the present case, however, I find that two of the eye witnesses have given fairly consistent account of the incident. Both the complainant Jayantibhai and his injured brother Mahendrabhai had stated before the Court that in the afternoon of 4.9.2001, two unknown persons had entered the house inquiring for Jayantibhai to buy liquor. Jayantibhai asked them as to who gave such an information. The visitors and witness thereupon went to the Pan Shop of Budhabhai. The witness and Budhabhai therefore, had verbal altercation. The issues were however, settled. At Night accused No. 1 Sandeep and accused No. 2 Budha came to their house and after a brief verbal quarrel, Sandeep repeatedly stabbed Mahendrabhai on his chest, on his abdomen and on his back and on his shoulder. Jayantibhai received a stick blow on his hand given by Budha. On these important aspects of the matter, witnesses have given a clear and consistent deposition. It is true that there are certain minor contradictions on other aspects of the matter, such as whether there was previous quarrel between Mahendrabhai and accused No. 1 Sandeep regarding a dog or not also there is slight contradictions inasmuch as Jayantibhai denied that there were no light when the incident took place whereas Mahendrabhai-PW9 agree that due to power cut between 8:00 to 8:30, there were no street light. These contradictions however, cannot be termed as so crucial as to demolish the entire prosecution case. The fact that complainant and his brother knew the accused since long before the incident is not seriously in doubt. In fact, both sides reside in the same locality and in the close neighbourhood. Their identification therefore, can pose no difficulty. Even if the street lights were not on, there were several houses in the locality and on account of previous familiarity between the complainant and the accused, the complainant and witness Mahendrabhai identifying the accused as those who had assaulted them, need not be doubted. In fact, the witnesses have stated that there was a brief conversation before accused No. 1 Sandeep started stabbing Mahendrabhai. Thus witnesses had ample opportunity to recognize the accused.
12. Oral evidence of these two injured witnesses namely Jayantibhai-PW9 and Mahendrabhai-PW10 is fully corroborated by medical evidence. Dr. Vijaykumar Singh-PW14 had treated Mahendrabhai. He had found his condition requiring immediate attention. While performing operation, he found that one kidney of the patient had been seriously damaged. He had no choice but to remove the kidney. As per deposition of Dr. Mehul Babubhai Patel-PW15, patient was kept as an indoor patient from 4.9.2001 and discharged on 25.9.2001. Dr. Krunal Kothari had also treated the complainant Jayantibhai. Though he was not available for giving evidence, certificate issued by him was produced before the Court. Weapons used for the commission of the offence were recovered at the instance of the accused. Though it is true that panchas had turned hostile and did not support prosecution, this was stated before the Court by the Investigating Officer. Thus even if the FSL could not establish the group of blood found from the knife, considering other unimpeachable and overwhelming evidence involving the accused in the commission of offence, it is not possible to acquit them only on this account. I find that learned Judge committed no error in convicting both the accused. It is true that accused themselves had received injuries and no explanation has been rendered by the prosecution on this count. However, injuries were extremely superficial and no fracture or any other injury required extensive treatment was suffered.
13. Coming to the question of sentence awarded by the learned Judge so far as Sandeep appellant No. 1 original accused No. 1 is concerned, he had given several knife blows on vital part of the body of Mahendrabhai. It was not the case of sudden or grave provocation or fight breaking out suddenly; the accused having given blows in the heat of the moment. From all accounts, it can be seen that accused were aggressors. They had come to the house of the complainant and his brother, took up quarrel, pursuant to which Sandeep had given as many as four knife blows on several parts of the body including vital parts such as on his chest and on the waist near kidney. In fact one of the kidneys of Mahendrabhai got seriously damaged. He had to be operated urgently. His kidney had to be removed. During treatment the patient had to be given 10 to 12 bottles of blood. He remained an an indoor patient close to three weeks. Considering all these aspects of the matter, I see no possibility of being given any leniency to this accused and granting of either probation or reduction in the sentence is ruled out.
14. With regard to accused No. 2 Budha, however, I find that situation is quite different. He was convicted for offence punishable under Section 325 of the Indian Penal Code and Section 135 of the Bombay Police Act and sentenced to simple imprisonment of five years and two years respectively. His only role proved on record is that of having given one stick blow to the complainant Jayantibhai which blow he received on his hand resulting into fracture on the fingers. No other overt act is established against this accused. Under the circumstances, awarding five years of sentence to my mind is extremely harsh. Jail record of the appellant No. 2 suggests that he has served out actual sentence of close to three yeas and two months. In addition thereto, he would also be entitled to remission. Role played by him and nature of injury that he caused being on non vital part of the body and fact that he gave only one stick blow to the complainant, I find that sentence already undergone would serve the purpose in so far as accused No. 2 is concerned.
15. In the result, appeal is disposed of in following terms:
Conviction and sentence of appellant No. 1 original accused No. 1 is confirmed.
Insofar as appellant No. 2 original accused No. 2 is concerned, his conviction under Section 325 of the Indian Penal Code and Section 135 of the Bombay Police Act is confirmed, but sentence is reduced to one already undergone. Directions for payment of fine remains unaltered. Appellant No. 2 shall be released forthwith if not required in any other criminal cases.
16. Appeal is disposed of in above terms.