Gujarat High Court
Kishorbhai Gandubhai Pethani vs State Of Gujarat & on 19 June, 2013
Author: Abhilasha Kumari
Bench: Abhilasha Kumari
KISHORBHAI GANDUBHAI PETHANI....Appellant(s)V/SSTATE OF GUJARAT R/CR.A/1117/2011 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL NO. 1117 of 2011 ================================================================ KISHORBHAI GANDUBHAI PETHANI....Appellant(s) Versus STATE OF GUJARAT & 1....Opponent(s)/Respondent(s) ================================================================ Appearance: MR. DP KINARIWALA, MR NIKUNJ D BALAR, ADVOCATE for the Appellant MR HK PATEL, ADDL. PUBLIC PROSECUTOR for Respondent No.1 MR YASH JOSHI FOR MR NC THAKKAR for Respondent(s) No. 2 ================================================================ CORAM: HONOURABLE SMT. JUSTICE ABHILASHA KUMARI Date : 19/06/2013 ORAL ORDER
The present appeal arises out of order dated 09.08.2011, passed by the learned Additional City Sessions Judge, Court No.5, Ahmedabad, in Sessions Case No.175 of 2007, below Ex.110.
In the prayer clause, the appellant does not pray for quashing and setting aside the entire order. However, the observations made by the Trial Court, as reproduced in Paragraph-13 of the order, are the cause of the grievance of the appellant. It is prayed that those observations be quashed and set aside. The observations made by the Trial Court in order dated 09.08.2011, are reproduced hereinbelow:
13. In the present case, it is not in dispute that so called tempering of medical evidence took place before the medical papers are filed before this court. Sec.340 of the Cri.P.C. relates regarding the inquiry to be held by the court, for the evidence, which is produced in the Court for complaint u/s.195 of the Cri.P.C. But, at the same time, as per the above mentioned citation, particularly para-25, Sec.195(1)(b)(ii) would be attracted only when the offences enumerated in the provisions have been committed with respect to a document after it has been produced in the court. But, this is not the situation in the present case and the circumstances shown in the application. The so called tempering took place before production of the medical papers before this Court, and therefore, there is no need to inquire in the issue by this Court u/s.340 of the Cri.P.C. which relates that the complaint to be filed by the Court, u/s.195 of the Cri.P.C. in which the evidence is produced. So, considering the facts and circumstances, that so called tempering is taken place before the production of the medical papers in the evidence before this Court, the present application by the original complainant for inquiry by this Court for tempering with the medical evidence, is required to be dismissed....
The brief facts of the case are that a complaint bearing I-C.R.No.271/2003 was lodged before Madhavpura Police Station, Ahmedabad City, by the present respondent No.2 against the appellant for offences punishable under Sections 323, 324, 294A, 506(2) and 114 of the Indian Penal Code, read with Section 135(1) of the Bombay Police Act. An application was made by the Police Sub Inspector, Madhavpura Police Station, for adding Section 307 of the Indian Penal Code. After investigation, the Chargesheet was filed and the case was committed to the Sessions Court and registered as Sessions Case No.175 of 2007. During the hearing of the case, the prosecution examined Dr.Ghanshyam Chunilal Patel as PW-3 at Ex.104. This witness stated that he is the Chief Medical Officer (CMO) who had given treatment to respondent No.2 in the Civil Hospital, Ahmedabad. A copy of the injury certificate was produced by the CMO at Ex.105. During cross-examination, this witness produced all the original papers at Ex.106. The said witness was also questioned by the Court regarding the custody of the case papers. Respondent No.2, original complainant, moved an application at Ex.110, requesting the Sessions Court to hold an inquiry regarding tampering of the medical record and to call for the police record. Thereafter, respondent No.2 filed a complaint before Shahibaug Police Station, Ahmedabad, being I-C.R. No.180 of 2010, on 05.07.2010, against the appellant and his wife (co-accused) for offences punishable under Sections 463, 465, 468, 471 and 114 of the Indian Penal Code. The appellant approached this Court under Section 482 of the Code of Criminal Procedure, by filing Criminal Miscellaneous Application No.3213 of 2011, praying that this complaint be quashed on the ground of the bar mentioned in Section 195(1)(b)(ii) of the Code of Criminal Procedure. This Court finally disposed of the above mentioned application vide common oral judgment dated 12.09.2011, in the following terms.
8. ...... In view of the fact that the documents produced by the witness were tampered while they were lying in the record of MLC, Sec.195 of Cr.P.C. will not be attracted......
A copy of the judgment and order dated 12.09.2011, passed in Criminal Miscellaneous Application No.3213 of 2011 with Criminal Miscellaneous Application No.6406 of 2011, has been submitted by Mr.Yash Joshi, learned advocate for Mr.Nirav C.Thakkar, learned advocate for respondent No.2, and is taken on the record of the case.
It is not disputed by learned counsel for the respective parties that the observations made by this Court in judgment dated 12.09.2011, passed in Criminal Miscellaneous Application No.3213 of 2011 with Criminal Miscellaneous Application No.6406 of 2011, would be applicable to the facts and circumstances of the present case.
In this view of the matter, and as the observations made in judgment dated 12.09.2011 would cover the legal question arising in the present appeal, the appeal is dismissed at the threshold.
(SMT. ABHILASHA KUMARI, J.) sunil Page 6 of 6