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Judgment
K.S. Jhaveri, J.—Criminal Appeal No. 164 of 2005 has been preferred by the appellants - original accused Nos. 2 & 6 and Criminal Appeal No. 165 of 2005 has been preferred by the appellants - original accused Nos. 1, 3, 4, 5, 8, 9 & 12, u/s 374 of the Code of Criminal Procedure, challenging the Judgment and order dated 30.11.2004, passed by the learned Additional Sessions Judge, Fast Track Court No. 7, Bharuch, in Sessions Case No. 156 of 2002.
The facts of the prosecution case are that while the Police Sub Inspector (complainant) along with police personnel were on duty, on 4.3.2002 at about 13.15 hours, the appellants - original accused Nos. 2 & 6 along with other accused persons, obstructed the complainant and his police party i.e. Public servants from discharging their public duty and pelted stones on them and inflicted dharia blows and voluntarily caused grievous hurt to different police persons and prevented them from discharging their duties. Thereupon the complaint was filed by P.S.I. Mr. Basia at Amod Police Station vide CR No. I - 22/02 for the offences punishable under Sections 186, 333, 337, 427, 504, 397, 395 I.P. Code and Section 135 of the Bombay Police Act. After the investigation was over the charge-sheet was filed before the learned J.M.F.C., Amod. As the offence were absolutely triable by a Court of Sessions, the learned J.M.F.C., Amod has committed the said case to the Court of Sessions.
2.1 Thereafter, the charge was framed against the accused for the offence punishable u/s 186, 333, 337, 427, 504, 397, 395 I.P. Code and u/s 135 of the Bombay Police Act. The accused pleaded not guilty to the charge and claimed to be tried.
2.3 The prosecution has examined following witnesses to prove the case against the accused:
(1) Panch Mahendrasinh Amarsinh Solanki, Exh. 18;
(2) Panch Bhupendrabhai Motibhai, Exh. 20;
(3) Pankajkumar Jayantibhai Patel, Exh.23;
(4) Hemantsinh Becharsinh Yadav, Ex. 24;
(5) Mahendrasinh Dalpatsinh, Exh. 26;
(6) Babubhai Fakirbhai Machhi, Exh. 27;
(7) Yogeshbhai Nagjibhai Patel, Ex. 29;
(8) Rajendrasinh Dharmendrasinh Vansadiya, Ex.30
(9) Bhupatsinh Raysinh Gohil, Ex. 31
(10) Jitsinh Bhagwansinhy Sindha, Ex.33
(11) Ishwarbhai Babubhai, Ex. 34;
(12) Vikramsinh Khumansinh Raj, Ex. 35;
(13) Jagdishsinh Bharatsinh Parmar, Ex. 37;
(14) Babubhai Shankerbhai, Exh. 38;
(15) Rupsingbhai Gombiyabhai, Exh. 39;
(16) Dr. Paresh Rambabu Sharmar, Exh. 44;
(17) Dr. Madhviben Javlit Sheth, Exh. 51
(18) Dr. Parannath Bhagwandas Nagpal, Exh. 58;
(19) Somatbhai Gigabhai Basiya - P.S.I., Ex. 62
(20) Narsinh Ambalal Muniya, Ex. 64;
(21) Yunusbhai Ismailbhai Chokiwala, Exh. 65;
(22) Prabodhbhai Champakbhai Bhagat, Exh. 67;
(23) Sumantlal Rambhai Patel, Exh. 68 - I.O.
2.4 The defence has examined the following witnesses:
(1) Bhupendrasinh Naharsinh Raj, Exh. 72
(2) Kanaksinh Khodubhai Rana, Exh. 73;
(3) Surendrasinh Raysinh Raj, Exh. 74
2.5 The prosecution has also produced following documents:
(1) Panchnama of scene of offence, Ex. 19;
(2) Panchnama of seizure of clothes of Mr. Basiya, Exh.21;
(3) Panchnama of seizure of Muddamal Rifle Ex. 22;
(4) Panchnama of physical condition of accused and recovery of weapons (Exh. 25 & 28);
(5) Medical Certificate of Injured Mr. Basiya, Exh. 45;
(6) Medical Certificate of injured Fatehsinh Sandha, Ex.46;
(7) Medical Certificate of injured Jagdishbhai Exh. 47;
(8) Medical Certificate of S.G.Basia, Exh.53 to 55;
(9) Medical Certificate issued by Dr. Nagpal, Exh. 60 &61;
(10) Medical Certificate issued by Dr. PR Sharma, Exh.48-50;
After appreciating the documentary as well as oral evidence the learned Additional Sessions Judge, Fast Track Court No. 7, Bharuch, has vide Judgment and order dated 30.11.2004, held the accused Nos. 1 to 6, 8, 9 and 12 guilty for the offence punishable u/s 186 I.P. Code and awarded sentence to suffer Simple Imprisonment for three months and to pay fine of Rs. 500/- each i/d to suffer SI for 15 days; held them guilty for the offence punishable u/s 333 I.P. Code and awarded sentence to suffer 5 years simple imprisonment and to pay fine of Rs. 1000/- each i/d to undergo further SI for Six months; held them guilty for the offence punishable u/s 337 I.P. Code and awarded sentence to suffer simple imprisonment of six months and to pay fine of Rs. 500/- each i/d to undergo SI for one months; held them guilty for the offence punishable u/s 427 I.P. Code and awarded sentence to suffer simple imprisonment for two years and to pay fine of Rs. 1000/- each, i/d to undergo SI for three months; and further held them guilty for the offence punishable u/s 504 I.P. Code and awarded sentence of simple imprisonment for one year and to pay fine of Rs. 500/- each i/d to undergo SI for one month.
3.1 Accused Nos. 2 & 6 were also held guilty by the learned Additional Sessions Judge for the offence punishable u/s 397 I.P. Code and were awarded sentence to undergo rigorous imprisonment for Seven years and to pay fine of Rs. 1000/- each i/d to further undergo SI for one years; they are also held guilty for the offence punishable u/s 395 I.P. Code and sentenced them to undergo rigorous imprisonment for 10 years and to pay fine of Rs. 1000/- each i/d to undergo RI for one year.
3.2 The learned Judge has acquitted original accused Nos. 7, 10 and 11 from the charges levelled against them.
3.3 The learned Judge ordered all the sentences to run concurrently.
Against the said Judgment and order of conviction dated 30.11.2004 passed by the learned Additional Sessions Judge, Fast Track Court No. 7, Bharuch, in Sessions Case No. 156 of 2002, the appellants - original accused No. 2 & 6 have preferred Criminal Appeal No. 164 of 2005 and appellants - original accused Nos. 1, 3, 4, 5, 8, 9 & 12 have preferred Criminal Appeal No. 165 of 2005.
We have heard learned Senior Advocate Mr. Yogesh Lakhani for the appellants - accused and learned APP Mrs. Manisha Shah, appearing for the respondent - State, at length (in both the Appeals). We have also also gone through the papers and the Judgment and order passed by the trial Court. Since both appeals arise out of the one Judgment and based on same evidence, both the Appeals are being heard and disposed of by this common Judgment.
Learned Counsel Mr. Lakhani has taken us through the charges as well as the evidence of the witnesses and also the medical evidence and submitted that on appreciation of medical evidence if one can look at the injury alleged to have been caused to the police personnel, they were of simple in nature and no grievous hurt was caused. Therefore, the offence will not be covered u/s 320 I.P. Code and if it is not covered under the grievous hurt then the conviction based under Sections 337, 395 and 397 is uncalled for in view of the fact that no recovery of articles which are alleged to have been robed were recovered from the accused.
6.1 Learned Counsel Mr. Lakhani has also pointed out that it was alleged that the police personnel was attacked with Dhariya, but said blow was given with butt of the rifle. However, the said rifle or butt was not produced or was not recovered under the recovery panchnama. Even the recovery panchnama of Dharia is not referring to the same. He has fairly conceded that it is simple injury and, therefore, at the most, it will be covered u/s 332 of I.P. Code and no case is made out under Sections 395 or 397 of I.P. Code.
6.2 Mr. Lakhani has also taken us through the charge and pointed out that the charge is defective. He has contended that the disability in so far as vision of left eye of the complainant is concerned it was due to the complainant''s suffering from diabetes and his being collided with his jeep and there is no direct evidence connecting the present appellants with the said injury received by the complainant.
6.3 Learned APP Mrs. Manisha Shah has after referring to the Certificate issued by Dr. Nagpal, P.W.18, Exh.58 contended that as per the Certificate issued by Dr. Nagpal there is permanent disability in the eye of the complainant. However, from the cross examination of this Doctor and the cross examination of complainant PSI Mr. Basia it is clear that no such permanent disability was there in the eye. Apart from that, the victim has also resumed his duty after producing the fitness Certificate and he is doing his job.
We have heard both the learned Counsel for the appellants as well as learned APP for the respondents.
7.1 We have minutely perused the medical certificate. There is no dispute that the injuries were of simple in nature and it cannot be said that no grivous hurt has been caused.
Keeping in view the ingredients of Section 320 I.P. Code we are of the opinion that the injuries caused are simple in nature and, therefore, conviction u/s 333 I.P. Code is uncalled for and instead, accused could have been convicted for the offence punishable u/s 332 I.P. Code.
8.1 After going through the evidence, oral as well as documentary, and the medical evidence, we are of the opinion that no case is made out, even prima facie for attracting the ingredients of offence punishable under Sections 395 and 397 I.P. Code so far as accused Nos. 2 & 6 are concerned. We are of the opinion that the appellants - accused in both the Appeals are held guilty for the offence punishable under Sections 186, 332, 337, 427, 504 and 353 I.P. Code.
Accordingly, both the Appeals are partly allowed and the Judgment and order dated 30.11.2004 passed by the learned Additional Sessions Judge, Fast Track Court No. 7, Bharuch, is modified to the following effect.
9.1 Accused Nos. 2 & 6 of Criminal Appeal No. 164 of 2005 are acquitted of the offence punishable under Sections 395 and 397 of I.P. Code and instead, the accused Nos. 2 & 6 are held guilty and convicted for the offence punishable under Sections 353 I.P. Code.
9.2 So far as accused Nos. 2 & 6 are concerned the order of conviction and sentence u/s 333 I.P. Code is converted into conviction u/s 332 of I.P. Code.
9.3 The order of conviction qua rest of the offences i.e. under Sections 186, 337, 427, 504 I.P. Code are concerned, the same is hereby confirmed, order of sentence of fine and in default of payment of fine is unaltered.
9.4 So far as accused of Criminal Appeal No. 165 of 2005 are concerned, the order of conviction and sentence u/s 333 I.P. Code is hereby converted into conviction u/s 332 I.P. Code and the accused are ordered to undergo sentence already undergone. They are also convicted for the offence u/s 353 I.P. Code.
9.5 Looking to the peculiar facts and circumstances of the case, and the time spent in custody and looking to the fact that injuries caused are of simple nature, it would meet the ends of justice if all the accused persons of both the Criminal Appeals are ordered to undergo sentence already undergone so far as conviction of accused persons for the offences punishable under Sections 186, 332, 337, 427, 504 and 353 of I.P. Code are concerned. The order of fine which is imposed upon the appellant - accused shall remain the same.
9.6 If the fine is paid, the appellants accused be set at liberty forthwith if not required to be detained in any other case. Bail Bonds shall stand cancelled.
Record & proceedings be sent back to the trial Court.