STATE OF GUJARAT Vs. KISHOREBHAI KANABHAI RATHOD
LAWS(GJH)-2016-1-214
HIGH COURT OF GUJARAT
Decided on January 27,2016

STATE OF GUJARAT Appellant
VERSUS
Kishorebhai Kanabhai Rathod Respondents

JUDGEMENT

M.R. Shah, J. - (1.) All these appeals arise out of the impugned judgment and order passed by the learned Additional Sessions Judge, Banaskantha (hereinafter referred to as "trial Court") in Sessions Case No. 215 of 2007, one by the original accused No. 1 challenging his conviction for the offences punishable under Ss. 307, 326, 324, 323 of the Indian Penal Code, 1860 (hereinafter referred to as "IPC") and Sec. 135 of the Bombay Police Act and another appeal preferred by the State challenging the impugned judgment and order passed by the learned trial Court acquitting the original accused Nos. 2 to 4 and one another appeal preferred by the State for enhancement of the sentence imposed by the learned trial Court, imposed while convicting the original accused No. 1 for the offences punishable under Ss. 307, 326, 324, 323 of the IPC, all these appeals are decided and disposed of by this common judgment and order.
(2.) At the outset it is required to be noted that all the original accused Nos. 1 to 4were as such charged for the offences punishable under Ss. 307, 326, 324, 323, 504 and 34 of the IPC and Sec. 135 of the Bombay Police Act and on appreciation of evidence, the learned trial Court has held the original accused No. 1 guilty for the offences punishable under Ss. 307, 326, 324, 323 of the IPC and Sec. 135 of the Bombay Police Act and has imposed the sentence of 5 years' RI and fine of Rs. 5000/ - and in default to undergo further 6 months' R1 for the offence punishable under Sec. 307 of the IPC and sentenced original accused No. 1 to undergo 5 years' RI with fine of Rs. 1000/ - and in default to undergo further 10 days' R1 for the offence punishable under Sec. 326 of the IPC. No separate sentence has been imposed by the learned trial Court while convicting the original accused No. 1 for the offences punishable under Ss. 324 and 323 of the IPC. By impugned judgement and order the learned trial Court has acquitted the original accused Nos. 2 to 4. 2.01. Feeling aggrieved and dissatisfied with the impugned judgment and order passed by the learned trial Court convicting the original accused No. 1 for the offences punishable under Ss. 307, 326, 324, 323 of the IPC, the original accused No. 1 has preferred the Criminal Appeal No. 1145 of 2011. 2.02. Feeling aggrieved and dissatisfied with the impugned judgment and order passed by the learned trial Court, the State has preferred Criminal Appeal No. 1214 of 2011 to enhance the sentence imposed by the learned trial Court, imposed while convicting the original accused No. 1 for the offences punishable under Ss. 307, 326, 324, 323 of the IPC. 2.03. Feeling aggrieved and dissatisfied with the impugned judgment and order passed by the learned trial Court insofar as acquitting the original accused Nos. 2 to 4, the State has also preferred the Criminal Appeal No. 1213/2011.
(3.) The case of the prosecution in nutshell is as under: "3.01. That the complainant Mukeshbhai Babubhai Rathod lodged a complaint against the present respondents and others before the Police Inspector, Bhavnagar B -Division Police Station alleging inter -alia that on 18/2/2007 at about 5.30 hours, while the complainant was present at his house, the accused persons were gambling near the house of the complainant, and accordingly complainant scolded not to gamble near his house. That the son of the complainant namely Hitesh was also gambling with the accused persons and therefore, he has told his son not to take part in gambling and therefore, the accused persons got excited and started to give filthy abuses. At the relevant point of time, the brother of complainant Kismat intervened and saved the complainant from further beating. Thereafter, after half an hour accused Kishore Kana, son of Himat Jiva and brother of Raju Tebhani as well as one person staying in the Para area, came near the house of the complainant and assaulted upon the complainant with deadly weapons like knife and dhoka. At the relevant point of time, accused Kishore Kana and accused who was staying in para area was armed with knife and son of accused Himat Jiva and brother of Raju Tebhani was armed with Dhoka, who called the complainant out of his house and assaulted upon him. The accused Kishore Kana inflicted one knife blow on back of complainant and other on thigh, the brother of Raju Tebhani and son of Himat Jiva had beaten the complainant with help of Dhoka. One person who was staying in Para area had inflicted knife blows on face, forehead and back of brother of complainant, Kismat and brother of Raju Tebhani and son of Himat Jiva had beaten the brother of complainant with Dholka. At the relevant point of time, Rekhaben who is Bhabhi of complainant and one Pravinbhai intervened and save the complainant and his brother from further beating and taken them in hospital. Therefore, complainant was given against respondents accused before the Bhavnagar B -Division Police Station for the alleged offences under Ss. 307, 326, 323, 324, 504, 34 of Indian Penal Code and Sec. 135 of Bombay Police Act and investigation was carried out. 3.01. That the aforesaid FIR was investigated by the investigating officers - Lakhubha Bhurubha Chudasama - PW No. 14 and thereafter by Bachubhai Jivabhai Ninama - PW No. 15. The investigating officer recorded statements of the concerned witnesses; he also prepared panchnama of the place of offence; he also recovered medical certificates with respect to the medical treatment of injured Mukeshbhai and Kishorbhai. The investigating officer also discovered knife used by the original accused No. 1 at the instance of the original accused No. 1 having blood stains. He also sent the knife to the FSL. 3.02. That on conclusion of the investigation, and having found prima facie case, the investigating officer filed chargesheet against the accused persons for the offences punishable under Ss. 307, 326, 324, 323, 504 and 34 of IPC and for the offence u/s. 135 of BP Act. 3.03. That as the case was exclusively triable by the Court of Sessions, the learned Chief Judicial Magistrate, First Class, Bhavnagar committed the case to the Sessions Court, Bhavnagar, which was transferred to the Court of learned Additional Sessions Judge, FTC No. 2, Bhavnagar which was numbered as Sessions Case No. 215 of 2007. 3.04. That the learned trial court framed Charge against the accused for the aforesaid offences, however, the accused pleaded not guilty and therefore, they came to be tried by the learned trial court. 3.05. To prove the case against the accused, the prosecution examined the following witnesses: 3.06. Through the aforesaid witnesses, the prosecution brought on record the following documentary evidences; 3.07. That after closing pursish submitted by the prosecution, Further Statement of all the accused came to be recorded under Sec. 313 of the Code of Criminal Procedure and all of them denied having committed any offence. However, they did not lead any evidence on support of their defence. 3.08. That at the conclusion of the trial, by the impugned judgement and award the learned trial court has held the original accused No. 1 guilty for the offence under Sec. 307, 326, 324, 323 of IPC and under Sec. 135 of BP Act and has sentenced the original accused No. 1 to undergo 5 years RI with fine of Rs. 5000 and in default, to undergo further 6 months RI for the offence u/s. 307 of IPC and sentenced the original accused No. 1 to undergo 5 years RI with fine of Rs. 1000 and in default, to undergo further 10 days RI for the offence u/s. 236 of IPC. That no separate sentence has been imposed while convicting the original accused No. 1 for the offence u/ss. 323 and 324 of IPC. 3.09. That by the impugned judgement and order, the learned trial court has acquitted the original accused Nos. 2 to 4 for the offences for which they were tried. 3.10. Feeling aggrieved and dissatisfied with the impugned judgement and order of conviction, the original accused No. 1 has preferred Criminal Appeal No. 1145 of 2011 and State has preferred criminal Appeal No. 1214 of 2011 for enhancement of the sentence imposed by the learned trial court imposed while convicting the original accused No. 1 for the offences u/ss. 307, 326, 324 and 323 of IPC. Feeling aggrieved and dissatisfied with the impugned judgement and order of acquittal acquitting the original accused Nos. 2 to 4, the State has preferred Criminal Appeal No. 1213 of 2011.";


Click here to view full judgement.
Copyright © Regent Computronics Pvt.Ltd.