Gujarat High Court
State Of Gujarat vs Thakor Chanduji Manaji on 27 February, 2025
Author: Ilesh J. Vora
Bench: Ilesh J. Vora
NEUTRAL CITATION
R/CR.A/249/2012 JUDGMENT DATED: 27/02/2025
undefined
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 249 of 2012
With
R/CRIMINAL APPEAL NO. 247 of 2012
With
R/CRIMINAL APPEAL NO. 76 of 2012
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE ILESH J. VORA
and
HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK
=======================================
Approved for Reporting Yes No
- No
=======================================
STATE OF GUJARAT
Versus
THAKOR CHANDUJI MANAJI & ANR.
=======================================
Appearance:
ROHAN SHAH APP for the Appellant in Criminal Appeal Nos. 249
of 2012 and 247 of 2012
CHIRAG PATEL for the Appellant in Criminal Appeal No. 76 of
2012
ROHAN SHAH APP for the respondent in Criminal Appeal No. 76
of 2012
=======================================
CORAM:HONOURABLE MR. JUSTICE ILESH J. VORA
and
HONOURABLE MR. JUSTICE HEMANT M.
PRACHCHHAK
Date : 27/02/2025
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE HEMANT M. Page 1 of 27 Uploaded by V.R. PANCHAL(HC00171) on Thu Feb 27 2025 Downloaded on : Thu Feb 27 22:40:58 IST 2025 NEUTRAL CITATION R/CR.A/249/2012 JUDGMENT DATED: 27/02/2025 undefined PRACHCHHAK)
1. These three appeals have been filed against the judgment and order dated 06.01.2012 passed by the learned Special Judge, (Atrocity), Mehsana (hereinafter be referred to as "the Trial Court") in Special Atrocity Case No.10 of 2011 whereby the Trial Court has convicted the original accused No.1 - Thakor Lalji @ Lalo Chaturji and imposed sentence to undergo simple imprisonment of five years and to pay fine of Rs.10,000/- and in default of payment of fine, to undergo further simple imprisonment of six months for the offence under Section 307 of the Indian Penal Code (hereinafter be referred to as "the IPC") and also imposed sentence to undergo simple imprisonment of six months and to pay fine of Rs.5,000/- and in default of payment of fine, to undergo three months imprisonment for the offence under Section 3(1)(x) of the the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter be referred to as "the Atrocity Act") and acquitted original accused No.1 - Thakor Chanduji Manaji from the charges levelled against him for the offence under Section 326, 504, 114 of the IPC and under Section 3(2)(v) of the Atrocity Act and original accused No.2 - Thakor Chanduji Manaji and original accused No.3 - Thakor Balvantji @ Lalaji Chanduji from the charges levelled against them for the offence under Section 307, 326, 504 and 114 of the IPC and under Section 3(1)(x), 3(2)(v) of the Atrocity Act.
Page 2 of 27 Uploaded by V.R. PANCHAL(HC00171) on Thu Feb 27 2025 Downloaded on : Thu Feb 27 22:40:58 IST 2025NEUTRAL CITATION R/CR.A/249/2012 JUDGMENT DATED: 27/02/2025 undefined
2. Criminal Appeal No.249 of 2012 has been filed by the State of Gujarat under Section 378 (1)(3) of the Code of Criminal Procedure, 1973 against the judgment and order of acquittal passed by the Trial Court acquitting the accused No.2 and 3. Criminal Appeal No.247 of 2012 has been filed by the State of Gujarat for enhancement of the punishment imposed on original accused No.1. Criminal Appeal No.79 of 2012 has been filed by the convict - accused No.1 - Thakor Lalaji @ Lalo Chaturji assailing the judgment and order of conviction.
3. As all these criminal appeals having been arisen from the same judgment and order, all these appeals are heard together and are being disposed of by this common judgment.
4. Brief facts of the prosecution case is that on 28.06.2010 at about 20.00 hours, accused No.1 teased niece of one Sikandarkumar and while prosecution witnesses were passing through maholla of accused No.1 and as he was standing near the house, the prosecution witnesses have discussed with accused No.2 and 3 and scolded accused No.1. It is the case of the prosecution that accused No.1 got excited and taken dharia from his house and inflicted on forehead of Sikandarkumar. It is also the case of the prosecution that at the time of incident, accused No.2 has brought dhoka from his house and accused No.2 and 3 in abatement of each other gave filthy abuses to the complainant.
Page 3 of 27 Uploaded by V.R. PANCHAL(HC00171) on Thu Feb 27 2025 Downloaded on : Thu Feb 27 22:40:58 IST 2025NEUTRAL CITATION R/CR.A/249/2012 JUDGMENT DATED: 27/02/2025 undefined 4.1 On the basis of the complaint filed by the complainant, the First Information Report (FIR) being C.R.No.I- 102 of 2010 came to be registered with Unjha Police Station for the offence punishable under Sections 307, 326, 504, 114 of the IPC and under Section 3(1)(x) and 3(1)(v) of the Atrocity Act.
4.2 After completion of investigation, as the sufficient evidence was found, the police has arrested the accused and have filed the charge-sheet against the accused before the Chief Judicial Magistrate (First Class), Unjha wherein it was registered as Criminal Case No.10 of 2011. As the offence was triable by the Court of Sessions, the Judicial Magistrate (First Class) has committed the case under Section 209 of the Criminal Procedure Code to the Court of Sessions where it has been registered as Special Atrocity Case No.10 of 2011.
4.3 On the basis of the material available on record, the trial court has framed the charge vide Exhibit 4 against the accused for the offences punishable under aforesaid sections and the same were explained to them. The accused have denied having committed any offence. The accused pleaded not guilty to the charge and pleaded for trial and hence, the case was tried by the learned Special Judge, Mehsana.
4.4 Considering the evidence on record and after hearing the respective parties, ultimately, the learned Sessions Judge has Page 4 of 27 Uploaded by V.R. PANCHAL(HC00171) on Thu Feb 27 2025 Downloaded on : Thu Feb 27 22:40:58 IST 2025 NEUTRAL CITATION R/CR.A/249/2012 JUDGMENT DATED: 27/02/2025 undefined convicted the accused No.1 and acquitted accused No.2 and 3 for the aforesaid offencesa as stated above.
5. It appears from the records that to prove the case, the prosecution has examined the following witnesses:-
P.W.1 Dr. Navinchandra Joitaram Parikh Exhibit 09 P.W.2 Dr. Dilipkumar Keshavlal Thakkar Exhibit 11 P.W.3 Complainant Pravinbhai Mafatbhai Parmar Exhibit 16 P.W.4 Witness Sikandarbhai Laljibhai Parmar Exhibit 19 P.W.5 Witness Chavda Vijaykumar Dhanjibhai Exhibit 21 P.W.6 Panch Witness Rameshbhai Babubhai Parmar Exhibit 22 P.W.7 Panch Witness Jhakirhusain Satarbhai Meman Exhibit 27 P.W.8 Panch Witness Imran Yakubbhai Meman Exhibit 31 P.W.9 Witness Manishaben Babubhai Parmar Exhibit 32 P.W.10 Dr. Mahesh Babubhai Trivedi Exhibit 33 P.W.11 PSI Bachubhai Khadabhai Gamar Exhibit 36 P.W.12 PSO Kailasdan Modidan Gadhavi Exhibit 40 P.W.13 Witness Rekhaben Surendrabhai Bara Exhibit 44 P.W.14 I.O. Khimjibhai Salubhai Baranda Exhibit 48 P.W.15 I.O. Kalabhai Maldevbhai Varu Exhibit 58
6. In addition to this, the prosecution has also produced the following documentary evidence:-
1. Medical Certificate of Sikandarbhai given by Exhibit 10 Unjha Cottage Hospital
2. Refer chitthi of Sikandarbhai given by Unjha Exhibit 12 Cottage Hospital Page 5 of 27 Uploaded by V.R. PANCHAL(HC00171) on Thu Feb 27 2025 Downloaded on : Thu Feb 27 22:40:58 IST 2025 NEUTRAL CITATION R/CR.A/249/2012 JUDGMENT DATED: 27/02/2025 undefined
3. Medical Certificate of Sikandarbhai given by Exhibit 13 Mehsana Civil Hospital
4. Complaint Exhibit 17
5. Caste certificate of the complainant Exhibit 18
6. Caste certificate of Sikandarbhai Exhibit 20
7. Panchnama of the scene of offence Exhibit 23
8. Panch slips of muddamal article Nos. 1 and 2 Exhibit 24,25
9. Seizure panchnama of clothes of the injured Exhibit 26
10. Panch slips of muddamal article Nos. 3 and 4 Exhibit 28,29
11. Panchnama of body of the accused and Exhibit 30 recovered weapon
12. Transfer chithti given by Mehsana Civil Exhibit 34 Hospital
13. Copy of the station diary Exhibit 35
14. Depute Order Exhibit 37
15. Fax message Exhibit 39
16. True copy of the receipt given by the hospital Exhibit 42 for taking declaration of the injured
17. Yadi sent to Deputy Mamlatdar for taking D.D. Exhibit 45 of the injured
18. D.D. of Sikandarbhai Exhibit 46
19. Yadi for appointment of Deputy Mamlatdar Exhibit 47 made by Mamlatdar for taking D.D.
20. Order of investigating officer Exhibit 49
21. Fax Message Exhibit 50
22. A report made in the diary of arrest of the Exhibit 51 accused
23. Note of forwarding muddamal Exhibit 52
24. Forwarding letter to FSL Ahmedabad regarding Exhibit 53 receipt of the goods Page 6 of 27 Uploaded by V.R. PANCHAL(HC00171) on Thu Feb 27 2025 Downloaded on : Thu Feb 27 22:40:58 IST 2025 NEUTRAL CITATION R/CR.A/249/2012 JUDGMENT DATED: 27/02/2025 undefined
25. FSL Report Exhibit 54
26. Report of department of Serology Ahmedabad Exhibit 55
27. Yadi sent to Civil Hospital, Ahmedabad for Exhibit 56 issuance of medical certificate
28. Yadi sent to Medical officer Mahesh B. Trivedi Exhibit 57 for giving medical certificate
29. Report made to Magistrate Court for adding Exhibit 59 Section 307
30. Closing purshis on behalf of the complainant Exhibit 60
7. After closure of the evidence, the statements of the accused under Section 313 of the Criminal Procedure Code, 1973 have been recorded wherein they denied having committed any offence and have stated that they are innocent.
8. After hearing both sides and considering the evidence on records, the learned Sessions Judge by impugned judgment and order has convicted the accused as stated hereinabove.
9. Heard Mr.Rohan Shah, learned Additional Public Prosecutor for the State of Gujarat and Mr.Chirag Patel, learned counsel appearing for the accused at length.
10. Mr.Shah, learned Additional Public Prosecutor has submitted the same facts which are narrated in the memo of appeals filed by the State of Gujarat and has also submitted that the trial Court has committed an error of facts and law in acquitting accused No.2 and 3 for the alleged offences. He has Page 7 of 27 Uploaded by V.R. PANCHAL(HC00171) on Thu Feb 27 2025 Downloaded on : Thu Feb 27 22:40:58 IST 2025 NEUTRAL CITATION R/CR.A/249/2012 JUDGMENT DATED: 27/02/2025 undefined submitted that the impugned judgment and order of acquittal passed by the trial Court is based on inferences and presumptions which is not permissible under the law. He has submitted that there is direct and indirect evidence connecting accused No.2 and 3 with the alleged offence and in spite of the fact that the trial Court came to the conclusion that the prosecution has failed to prove its case beyond reasonable doubt. He has referred to the evidence of P.W.1 Dr. Navinchandra Joitaram Parikh at Exhibit 9 and has submitted that this witness has stated that Sikandarbhai Ramjibhai Parmar was brought before him for treatment and he gave the history that accused No.2 and 3 have beaten him by stick. While referring to the evidence of P.W.2 Dr. Dilipkumar Keshavlal Thakkar at Exhibit 11, Mr.Shah, learned Additional Public Prosecutor has submitted that injured Sikandarbhai was brought for treatment and the injured has given history before him that Chandubhai and his two sons have inflicted wooden log. He has submitted that looking to the evidence of P.W.1 and P.W.2, it appears that accused No.2 and 3 are involved in the commission of offence and, therefore, the trial Court has committed an error in acquitting accused No.2 and 3. He has submitted that the trial Court has not properly considered the evidence of P.W.3 Pravinbhai Mafatlal Parmar, P.W.5 Vijaykumar Dhanjibhai Chavda and P.W.8 Imran Yakubbhai Meman while passing the impugned judgment and order of acquittal of accused No.2 and 3.
10.1 Mr.Shah, learned Additional Public Prosecutor has Page 8 of 27 Uploaded by V.R. PANCHAL(HC00171) on Thu Feb 27 2025 Downloaded on : Thu Feb 27 22:40:58 IST 2025 NEUTRAL CITATION R/CR.A/249/2012 JUDGMENT DATED: 27/02/2025 undefined submitted that the impugned judgment and order of sentence passed by the trial Court for the offence under Section 307 of the IPC and under Section 3(1)(x) of the Atrocity Act is highly inadequate and disproportionate to the offence committed by accused No.1. He has submitted that accused No.1 was teasing niece of Sikandarbhai and accordingly he was scolded by the witnesses and even there was no reason to raise dispute with injured in spite of that accused No.1 has inflicted dharia blow on forehead of injured and thereby caused fetal injuries. He has submitted that the intention of the accused to kill the accused and, therefore, he inflicted dharia blow on vital part of body of the injured and according to the evidence of P.W.1 and P.W.2, accused No.1 had inflicted dharia blows on the forehead of the injured. He has submitted that the trial Court has not properly considered the provision of Section 307 of the IPC which clearly suggests that the intention of the accused to cause death is sufficient to hold guilty for the charge under Section 307 of the IPC and hence the prosecution has proved the case against accused beyond reasonable doubt. He has submitted that looking to the seriousness of the offence, the trial Court ought to have taken deterrent view while convicting the accused for the offence under Section 307 of the IPC. He has submitted that the young age of the accused is not a ground for imposing lesser sentence and, therefore also, the sentence awarded by the trial Court deserves to be enhanced.
10.2 Mr.Shah, learned Additional Public Prosecutor has Page 9 of 27 Uploaded by V.R. PANCHAL(HC00171) on Thu Feb 27 2025 Downloaded on : Thu Feb 27 22:40:58 IST 2025 NEUTRAL CITATION R/CR.A/249/2012 JUDGMENT DATED: 27/02/2025 undefined submitted that considering the facts and circumstances of the case, the appeals filed by the State of Gujarat deserve to be allowed.
11. Mr.Patel, learned counsel appearing for the accused has submitted that the impugned judgment and order of conviction passed by the trial Court is against the settled principles of law and good conscience and the trial Court has committed an error in not considering the provision of the Evidence Act which has resulted into miscarriage of justice. He has submitted that the impugned judgment and order of conviction is based on conjectures and presumption and without proper appreciation of the evidence on record. He has submitted that the trial Court has committed an error in not considering the fact that there are material contradictions in the version of the witnesses. He has submitted that the appellant - accused is handicapped and he would not be able to inflict the blow with dhariya on the head of the complainant. He has submitted that the evidence of Dr.Dilipkumar Keshavlal Thakkar and medical certificate clearly suggests that the complainant had got injury on the head due to the blow of wooden stick. He has submitted that the P.W.4 has admitted that the appellant had given him blow with dharia, whereas before the doctor the very witness has admitted that he has got blow on his head by wooden stick. He has submitted that the trial Court has committed an error in holding the accused guilty under Section 3(1)(x) of the Atrocity Act, on the contrary, at the time of using such words, except the complainant, his Page 10 of 27 Uploaded by V.R. PANCHAL(HC00171) on Thu Feb 27 2025 Downloaded on : Thu Feb 27 22:40:58 IST 2025 NEUTRAL CITATION R/CR.A/249/2012 JUDGMENT DATED: 27/02/2025 undefined relative and the accused, no anyone was present. He has submitted that the trial Court has not assigned any reasons for convicting the accused only for the offence punishable under Section 307 of the IPC and Section 3(1)(x) of the Atrocity Act.
11.1 Over-and-above the aforesaid arguments, Mr.Patel, learned counsel has submitted the written submissions, which reads thus:-
1. Incident took place on 28.06.2010 at Umiya Mata chowk where the road is heading upto the market and it is a public place where ingress and egress of the people at large is common and continuous. Complaint is registered on 29.06.2010.
2. Residential accused are area of the complainant and nearby and at the place of incident, there was electric pole at 5ft distance and incident has taken place at 9:00 pm.
3. Two days prior to the incident, accused no.1 has teased the PW-9-Manishaben Babubhai Parmar and winked his eyes and he was offering his love for which no complaint was registered and Pw-4-Sikandarbhai Laljibhai Parmar was informed at 8:00 pm on 26.06.2010 by his niece- Pw-9 Manishaben.
4.On 28.06.2010 at 9:00pm at the time of going for having snacks, PW-4 has found accused no.1 standing there who is also handicapped and inquired regarding incident of teasing of his niece i.e., PW-9-Manishaben.
5. Upon being grave and sudden provocation at the behest of PW-4, accused no.1- Appellant herein had gone to his home and brought "Dhariya" and had given blow on the head and Pw-4 had fallen down and at the time of incident-
Thakor Chanduji Manaji and his son Babaji Manaji had abused the PW-4 and at that time PW-3 was accompanying PW-4.
In the FIR, it is specific case of the complainant that Page 11 of 27 Uploaded by V.R. PANCHAL(HC00171) on Thu Feb 27 2025 Downloaded on : Thu Feb 27 22:40:58 IST 2025 NEUTRAL CITATION R/CR.A/249/2012 JUDGMENT DATED: 27/02/2025 undefined Appellant herein had only given blow with Dhariya on the head of PW-4 and appellant herein had not abused anyone and PW-3 has specifically informed in the complaint that at the time of Incident, Thakor Chanduji Manaji and his son Babaji Manaji (accused No.2 and 3) were abusing PW-4 and Thakor Chanduji Manaji was holding Dhoka in his hand but an PW-4 was bleeding therefore Complainant immediately took PW-4 to the hospital for primary treatment.
6. Deposition of PW-1 Dr. Navinchandra Joitaram Parikh Deposition of (Pg PW-2 no.63-64) and Dr. Dilipkumar Keshavlal Thakkar (Pg no. 65-67) Both the PW-1 and PW-2 are informed by the Pw-4 as he was attacked with Lakdu (Wooden stick) and he was attacked by Chanduji Manaji and his son Babaji Manaji. It is specifically informed by PW-4 to the PW-1 and PW-2 as he was attacked by the accussed nos.2 and 3 and at the time of informing, PW-4 Was conscious and no allegation is made against the appellant herein for attacking by appellant herein.
PW-1 has admitted that PW-4 was having incised wound and he was not having any lacerated wound. PW-4 was not having any bone injury in his head and he was having only injury which is 6 cm long and 0.5cm width injury and that is upto the bone.
Medical Certificate issued by PW-9 on Pg no. 65 and medical certificate issued by PW-2 is on Pg no.69.
Weapon used as lathi is not a deadly weapon held by the Hon'ble Supreme court in the reported case in 1995 SCC (Criminal) 165 Joseph V/s State Kerala in relevant para-3.
Deposition of PW-3 and PW-1 and PW-2 are Contradictory and not supporting to each other as PW-3 in complaint says attack was done by the appellant herein with Dhariya whereas PW-1 and PW-2 are specifically informed by PW-4 who was injured and conscious that he was attacked by accused nos.2 and 3.
Hence Role of the appellant herein is not supported by any direct evidence and even otherwise incident has taken place in the public place and no independent witness has been examined by the prosecution. Hence chain of evidences is not completed to convict the appellant.
Page 12 of 27 Uploaded by V.R. PANCHAL(HC00171) on Thu Feb 27 2025 Downloaded on : Thu Feb 27 22:40:58 IST 2025NEUTRAL CITATION R/CR.A/249/2012 JUDGMENT DATED: 27/02/2025 undefined Appellant relies upon (2005) 10 SCC 614 (Hem Raj and ORs. V/s State of Haryana) Relevant para- 8 and 9.
7. Deposition of PW-3- Complainant, Pg no. 72- 75 He has admitted that at the time of teasing of PW-9 by the appellant herein he was not present and he has not sustained any injury and he has also not disclosed the names of the accused in complaint but he has only mentioned "Chaturii Manaji-a Handicapped Boy" in his complaint and he has admitted that accused nos.243 has not beaten PW-4. He has also admitted that during the medical treatment of PW-4, It was mentioned that injury sustained by the wooden stick and surrounding place of incident there houses of other caste people.
PW-3 did not try to save PW-4 from the attack of the appellant herein and even though all accused are present at the place of incident, none of them attacked on PW-3.
8. Punchnama of Place of Offence on Pg.90-91 and Punchnama of recovery of weapon on pg no. 100-101 and report of forensic lab on pg no. 145-150.
Dhariya was recovered from the appellant but forensic lab report clearly suggest that it is with the colour of rusting and recovery punchnama on pg no.100 clearly suggest that no blood stain was found on the Dhariya. Hence the judgement rendered by the Ld. The session Judge is without considering and appreciating this aspect which is in contravention of the law settled by the Hon'ble Supreme Court in the case reported in (2019) 10 SCC 220 (Union of India & Ors. V/S. Sepoy Pravat Kumar Behuria), Relevant Para-16.
9. Regarding Atrocity Complaint Finding given on Pg perverse as nowhere no. 208 and 209 are PW-3 states in his complaint that appellant herein has abused and further assuming for sake of argument if it is believed that appellant herein has abused PW-4, there is no direct/indirect independent evidence against the appellant herein for abusing including the evidence of PW-3 in Public View and therefore no violation of atrocity act has been committed by the appellant herein in view of the ratio settled by the Hon'ble Supreme Court in the case reported Page 13 of 27 Uploaded by V.R. PANCHAL(HC00171) on Thu Feb 27 2025 Downloaded on : Thu Feb 27 22:40:58 IST 2025 NEUTRAL CITATION R/CR.A/249/2012 JUDGMENT DATED: 27/02/2025 undefined in (2020) 10 SCC 710 (Hitesh Verma V/S. State of Uttarakhand and Anr.) Relevant Para-14 to 17.
10. Finding given by the LD. Sessions Judge for not believing appellant herein as innocent are as here under.
• Injury on the head of PW-4, pg no. 182 • Serious injury of bleeding, Pg no. 203 • Injury with Dhariya, Pg no. 204-207 • Finding on atrocity, Pg no. 207-209 On pg no. 209, it is observed that complainant-PW-3 and injured Person- PW-4 were abused by the appellant and same is proved. In absence of any evidence, appellant is acquitted from the charges U/S 3(2) (5) of the Atrocity Act and also 326,504,114 of the IPC.
11. Appellant is relying upon the Judgement of Hon'ble Supreme Court in the case reported in 2023 SCC Online SC 1581 (Sivamani and Anr. V/s State Represented by Inspector of Police), Relevant Para 6 to 12 as there is no repeated or severe blows on PW-4 and even otherwise using wooden stick is not a deadly weapon and moreover, there are vast contradiction in the FIR, Deposition of PW-1, PW-2 and PN-4. Hence chain of evidences to convict appellant is not completed and even no blood stain was found on Dhariya and even otherwise PW-1 and PN-2 are specially informed as PN-4 was attacked by Lakdu (wooden Stick) by PN-4 himself in conscious condition. Therefore story of using Dhriya on attacking PN-4 is got up and fabricated and even otherwise there is no Lacerated wound on the head of the PN-4.
Further lastly, appellant herein has not abused PW-4 which can be read over by the original Complaint and appellant has also not abused to PW-4 in public view in any manner as incident took place on public street which was surrounded by many houses and on the face of the record no independent witness had been examined by the prosecution to prove the guilt of the appellant for violation of Atrocity Act and burden is upon the prosecution to prove the same offence which has not been discharged by perusing totality of all evidences available on record. Without any cogent and substantial evidence, the Page 14 of 27 Uploaded by V.R. PANCHAL(HC00171) on Thu Feb 27 2025 Downloaded on : Thu Feb 27 22:40:58 IST 2025 NEUTRAL CITATION R/CR.A/249/2012 JUDGMENT DATED: 27/02/2025 undefined convicted under the Atrocity Act. appellant is convicted under the Atrocity Act.
11.2 In support of his submissions, Mr.Patel, learned counsel has relied upon the following decisions:
(1) Joseph Vs. State of Kerala reported in (1995) SCC (Cri.) 165 = AIR 1994 SC 34;
(2) Hem Raj and others Vs. State of Haryana reported in (2005) 10 SCC 614;
(3) Union of India and others Vs. Sepoy Pravat Kumar Behuria reported in (2019) 10 SCC 220;
(4) Hitesh Verma Vs. State of Uttarakhand and another reported in (2020) 10 SCC 710;
(5) Sivamani and another Vs. State Represented by Inspector of Police, (2023) SCC OnLine SC 1581;
12. In the case of Joseph (supra), the Hon'ble Supreme Court has held and observed in para - 3 as under:-
"3. In this appeal the learned counsel for the appellant submits that the intention to cause the injury which was found sufficient to cause the death in the ordinary course of the nature was not established. In support of this submission he relied on the circumstances namely that the whole incident took place because of a trivial incident which resulted in a quarrel and that the weapon used was only a lathi and in the circumstances it cannot be said that the accused intended to cause the death by inflicting that particular injury which objectively was proved by the medical evidence to be sufficient in the ordinary course of nature to cause death. In other words he submits that clause 3 of sec. 300, IPC is not attracted in this case. We find considerable force in the submission. The weapon used is not a deadly weapon as rightly contended by the learned counsel. The whole occurrence was a result of a trivial incident and in those circumstances the accused dealt two blows on the head with a lathi, therefore, it cannot be stated that he intended to cause the injury Page 15 of 27 Uploaded by V.R. PANCHAL(HC00171) on Thu Feb 27 2025 Downloaded on : Thu Feb 27 22:40:58 IST 2025 NEUTRAL CITATION R/CR.A/249/2012 JUDGMENT DATED: 27/02/2025 undefined which is sufficient at the most it can be said that by inflicting such injuries he had knowledge that he was likely to cause the death. In which case the offence committed by him would be culpable homicide not amounting to murder. We accordingly set aside the conviction of the appellant u/s. 302, IPC and the sentence of imprisonment for life awarded thereunder. Instead we convict the appellant u/s. 304, Part II, IPC and sentence him to five years R.I."
12.1 In the case of Hem Raj and others (supra), the Hon'ble Supreme Court has held and observed in paras - 8 and 9 as under:-
"8. The fact that no independent witness - though available, was examined and not even an explanation was sought to be given for not examining such witness is a serious infirmity in the prosecution case having regard to the indisputable facts of this case. Amongst the independent witnesses, Kapur Singh was one, who was very much in the know of things from the beginning. Kapur Singh is alleged to have been in the company of PW5 at a sweet stall and both of them after hearing the cries joined PW4 at Channi Chowk. He was one of those who kept the deceased on a cot and took the deceased to hospital. He was there in the hospital by the time the first I.O. - PW9 went to the hospital. The evidence of the first I.O. reveals that the place of occurrence was pointed out to him by Kapur Singh. His statement was also recorded, though not immediately but later. The I.O. admitted that Kapur Singh was the eye-witness to the occurrence. In the FIR, he is referred to as the eye-witness along with PW5. Kapur Singh was present in the Court on 06.10.1997. The Addl. Public Prosecutor 'gave up' the examination of this witness stating that it was unnecessary. The trial court commented that he was won over by the accused and therefore he was not examined. There is no factual basis for this comment. The approach of the High Court is different. The High Court commented that his examination would only amount to 'proliferation' of direct evidence. But, we are unable to endorse this view of the High Court. To put a seal of approval on the prosecution's omission to examine a material witness who is unrelated to the deceased and who Page 16 of 27 Uploaded by V.R. PANCHAL(HC00171) on Thu Feb 27 2025 Downloaded on : Thu Feb 27 22:40:58 IST 2025 NEUTRAL CITATION R/CR.A/249/2012 JUDGMENT DATED: 27/02/2025 undefined is supposed to know every detail of the incident on the ground of 'proliferation' of direct evidence is not a correct approach. The corroboration of the testimony of the related witnesses pws 4 & 5 by a known independent eye- witness could have strengthened the prosecution case, especially when the incident took place in a public place.
9. Non-examination of independent witness by itself may not give rise to adverse inference against the prosecution. However, when the evidence of the alleged eye-witnesses raise serious doubts on the point of their presence at the time of actual occurrence, the unexplained omission to examine the independent witness - Kapur Singh, would assume significance. This Court pointed out in Takhaji Hiraji V/s. Thakore Kubersing Chamansing & Others (SCC p. 155, para 19).
".....if already overwhelming evidence is available and examination of other witnesses would only be a repetition or duplication of the evidence already adduced, non- examination of such other witnesses may not be material. In such a case, the court ought to scrutinize the worth of the evidence adduced. The court of facts must ask itself whether in the facts and circumstances of the case, it was necessary to examine such other witness, and if so, whether such witness was available to be examined and yet was being withheld from the court. If the answer be positive then only a question of drawing an adverse inference may arise. If the witnesses already examined are reliable and the testimony coming from their mouth is unimpeachable the court can safely act upon it, uninfluenced by the factum of non-examination of other witnesses. In the present case we find that there are at least 5 witnesses whose presence at the place of the incident and whose having seen the incident cannot be doubted at all. It is not even suggested by the defence that they were not present at the place of the incident and did not participate therein."
12.2 In the case of Sepoy Pravat Kumar Behuria (supra), the Hon'ble Supreme Court has held and observed in para - 16 as under:-
Page 17 of 27 Uploaded by V.R. PANCHAL(HC00171) on Thu Feb 27 2025 Downloaded on : Thu Feb 27 22:40:58 IST 2025NEUTRAL CITATION R/CR.A/249/2012 JUDGMENT DATED: 27/02/2025 undefined "16. The Tribunal examined the evidence on record to hold that the prosecution failed to establish the guilt of the Respondent. The irreconcilable inconsistency between the medical evidence and ocular testimony, lack of scientific evidence like finger prints on the weapon and the absence of blood on the weapon have been taken into account by the Tribunal to hold that the charge against the Respondent was not proved."
12.3 In the case of Hitesh Verma (supra), the Hon'ble Supreme Court has held and observed in paras - 14 to 17 as under:-
"14. Another key ingredient of the provision is insult or intimidation in "any place within public view". What is to be regarded as "place in public view" had come up for consideration before this Court in the judgment reported as Swaran Singh & Ors. v. State through Standing Counsel & Ors., (2008) 8 SCC 435. The Court had drawn distinction between the expression "public place" and "in any place within public view". It was held that if an offence is committed outside the building e.g. in a lawn outside a house, and the lawn can be seen by someone from the road or lane outside the boundary wall, then the lawn would certainly be a place within the public view. On the contrary, if the remark is made inside a building, but some members of the public are there (not merely relatives or friends) then it would not be an offence since it is not in the public view. The Court held as under:
"28. It has been alleged in the FIR that Vinod Nagar, the first informant, was insulted by Appellants 2 and 3 (by calling him a "chamar") when he stood near the car which was parked at the gate of the premises. In our opinion, this was certainly a place within public view, since the gate of a house is certainly a place within public view. It could have been a different matter had the alleged offence been committed inside a building, and also was not in the public view. However, if the offence is committed outside the building e.g. in a lawn outside a house, and the lawn can be seen by someone from the road or lane outside the boundary wall, the lawn would certainly be a place within the public view. Also, even if the remark is made inside a building, but some members of the public are there (not merely relatives or friends) then also it would be an offence since it is in the Page 18 of 27 Uploaded by V.R. PANCHAL(HC00171) on Thu Feb 27 2025 Downloaded on : Thu Feb 27 22:40:58 IST 2025 NEUTRAL CITATION R/CR.A/249/2012 JUDGMENT DATED: 27/02/2025 undefined public view. We must, therefore, not confuse the expression "place within public view" with the expression "public place".
A place can be a private place but yet within the public view. On the other hand, a public place would ordinarily mean a place which is owned or leased by the Government or the municipality (or other local body) or gaon sabha or an instrumentality of the State, and not by private persons or private bodies."
15. As per the FIR, the allegations of abusing the informant were within the four walls of her building. It is not the case of the informant that there was any member of the public (not merely relatives or friends) at the time of the incident in the house. Therefore, the basic ingredient that the words were uttered "in any place within public view" is not made out. In the list of witnesses appended to the charge-sheet, certain witnesses are named but it could not be said that those were the persons present within the four walls of the building. The offence is alleged to have taken place within the four walls of the building. Therefore, in view of the judgment of this Court in Swaran Singh, it cannot be said to be a place within public view as none was said to be present within the four walls of the building as per the FIR and/or charge-sheet.
16. There is a dispute about the possession of the land which is the subject matter of civil dispute between the parties as per respondent No.2 herself. Due to dispute, appellant and others were not permitting respondent No.2 to cultivate the land for the last six months. Since the matter is regarding possession of property pending before the Civil Court, any dispute arising on account of possession of the said property would not disclose an offence under the Act unless the victim is abused, intimated or harassed only for the reason that she belongs to Scheduled Caste or Scheduled Tribe.
17. In another judgment reported as Khuman Singh v. State of Madhya Pradesh, 2019 SCC OnLine SC 1104 this Court held that in a case for applicability of Section 3(2)(v) of the Act, the fact that the deceased belonged to Scheduled Caste would not be enough to inflict enhanced punishment. This Court held that there was nothing to suggest that the offence was committed by the appellant only because the deceased belonged to Scheduled Caste. The Court held as under:
"15. As held by the Supreme Court, the offence must be such so as to attract the offence under Section 3(2)(v) of the Page 19 of 27 Uploaded by V.R. PANCHAL(HC00171) on Thu Feb 27 2025 Downloaded on : Thu Feb 27 22:40:58 IST 2025 NEUTRAL CITATION R/CR.A/249/2012 JUDGMENT DATED: 27/02/2025 undefined Act. The offence must have been committed against the person on the ground that such person is a member of Scheduled Caste and Scheduled Tribe. In the present case, the fact that the deceased was belonging to "Khangar"- Scheduled Caste is not disputed. There is no evidence to show that the offence was committed only on the ground that the victim was a member of the Scheduled Caste and therefore, the conviction of the appellant-accused under Section 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act is not sustainable."
12.4 In the case of Sivamani and another (supra), the Hon'ble Supreme Court has held and observed in paras - 6 to 12 as under:-
"6. However, it was pointed out that the allegations against all the accused being more or less similar in nature, the appellants could not have been convicted under Section 307, IPC as the doctor (PW13) itself found the injuries to be simple in nature and not on any vital part of the body. Moreover, it was submitted that there was no intention to kill; neither there were repeated blows, nor was it pre- planned, when admittedly there was a civil suit pending between Accused No.1 and PW1. It was submitted that even the prosecution story would indicate that a quarrel had arisen between the Accused No.1 and PW1, due to which a complaint to the police was made by PW1, which further aggravated the enmity. The appellants are alleged to have come to the shop of the Complainant, when he was alone, armed with one knife each and attempted to attack the complainant on his neck but he managed to escape unhurt. It was submitted that had the appellants come with the motive to kill both PW1 and PW2 and were armed with knives, they could easily have ensured the death of the Complainant. Learned counsel submitted that in any view of the matter, there could have been some justification to proceed against the appellants under Sections 323 and 324 of the IPC but not under Section 307, IPC, as has been done. It was submitted that the two victims had sustained only simple injuries, whereas one victim-PW2 had complained that she had fallen upon being attacked on her back but she did not sustain any extraordinary injury and Page 20 of 27 Uploaded by V.R. PANCHAL(HC00171) on Thu Feb 27 2025 Downloaded on : Thu Feb 27 22:40:58 IST 2025 NEUTRAL CITATION R/CR.A/249/2012 JUDGMENT DATED: 27/02/2025 undefined even that was found to be simple in nature. Likewise, the other victim PW1 sustained abrasion injuries on his right shoulder and left thumb which are simple in nature.
SUBMISSIONS OF THE RESPONDENT-STATE/POLICE:
7. Learned counsel for the State submitted that the appellants being armed with knives (one each) clearly indicates that they intended to kill and it was only due to providence that their lives were saved.
ANALYSIS, REASONING AND CONCLUSION:
8. Section 307, IPC reads as under:
'307. Attempt to murder.- Whoever does any act with such intention or knowledge, and under such circumstances that, if he by that act caused death, he would be guilty of murder, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; and if hurt is caused to any person by such act, the offender shall be liable either to imprisonment for life, or to such punishment as is hereinbefore mentioned.
Attempts by life convicts.- When any person offending under this section is under sentence of imprisonment for life, he may, if hurt is caused, be punished with death.
Illustrations
(a) A shoots at Z with intention to kill him, under such circumstances that, if death ensued, A would be guilty of murder. A is liable to punishment under this section.
(b) A, with the intention of causing the death of a child of tender years, exposes it in a desert place. A has committed the offence defined by this section, though the death of the child does not ensue.
(c) A, intending to murder Z, buys a gun and loads it. A has not yet committed the offence. A fires the gun at Z. He has committed the offence defined in this section, and, if by such firing he wounds Z, he is liable to the punishment provided by the latter part of the first paragraph of this section.Page 21 of 27 Uploaded by V.R. PANCHAL(HC00171) on Thu Feb 27 2025 Downloaded on : Thu Feb 27 22:40:58 IST 2025
NEUTRAL CITATION R/CR.A/249/2012 JUDGMENT DATED: 27/02/2025 undefined
(d) A, intending to murder Z, by poison, purchases poison and mixes the same with food which remains in A's keeping; A has not yet committed the offence in this section. A places the food on Z's table or delivers it to Z's servants to place it on Z's table. A has committed the offence defined in this section.
9. In State of Madhya Pradesh v Saleem, (2005) 5 SCC 554, the Court held that to sustain a conviction under Section 307, IPC, it was not necessary that a bodily injury capable of resulting in death should have been inflicted. As such, non-conviction under Section 307, IPC on the premise only that simple injury was inflicted does not follow as a matter of course. In the same judgment, it was pointed out that The court has to see whether the act, irrespective of its result, was done with the intention or knowledge and under circumstances mentioned in the section. The position that because a fatal injury was not sustained alone does not dislodge Section 307, IPC conviction has been reiterated in Jage Ram v State of Haryana, (2015) 11 SCC 366 and State of Madhya Pradesh v Kanha, (2019) 3 SCC 605. Yet, in Jage Ram (supra) and Kanha (supra), it was observed that while grievous or life-threatening injury was not necessary to maintain a conviction under Section 307, IPC, The intention of the accused can be ascertained from the actual injury, if any, as well as from surrounding circumstances. Among other things, the nature of the weapon used and the severity of the blows inflicted can be considered to infer intent.
10. Having considered the facts and circumstances of the case and submissions of learned counsel for the parties, this Court is convinced that the Impugned Judgment of the High Court requires to be interfered with. Admittedly, there is no allegation of repeated or severe blows having been inflicted. Even the injuries on PW1 and PW2 have been found to be simple in nature, which is an additional point in the appellants favour.
11. We are further inclined to accept the submissions of the learned counsel for the appellants that from the materials on record, only offences under Sections 323(2) and 324 of the IPC can be made out. As such, the conviction under Section 307, IPC is unsustainable.
12. In the background of the discussions made Page 22 of 27 Uploaded by V.R. PANCHAL(HC00171) on Thu Feb 27 2025 Downloaded on : Thu Feb 27 22:40:58 IST 2025 NEUTRAL CITATION R/CR.A/249/2012 JUDGMENT DATED: 27/02/2025 undefined hereinabove and on taking an overall view, the Impugned Judgment is varied only to the extent that the conviction of the appellants stands modified to that under Sections 323 and 324 of the IPC and the sentence imposed is also reduced to the period already undergone. The fine imposed is maintained. The appellants stand discharged of the liabilities of their bail bonds, if any."
13. We have carefully considered the rival contentions and perused the impugned judgment and order as well as the evidence placed on record minutely.
14. On perusal of the impugned judgment and order, it reveals that the trial Court has recorded the findings while considering the evidence of the witnesses more particularly the nature of injury, weapons used in the crime and motive behind assault and held the accused guilty for the alleged offence.
15. On perusal of the evidence of P.W.1 Dr. Navinchandra Joitaram Parikh at Exhibit, it appears that this doctor was on duty at Unjha Cottage Hospital and at that time the injured Sikandarbhai brought before him on 28.06.2010 in injured condition, but he was in conscious state of mind and he had given that how the injured received stick blow on forehead by Chandubhai Manabhai. This doctor found that the injured received lesser wound bone which was likely to be caused by hard and blunt substance and, thereafter, this witness referred the injured to Mehsana Civil Hospital along with yadi. In his cross-examination, this witness has stated that the injured has given history that he had received stick injury, whereas, the Page 23 of 27 Uploaded by V.R. PANCHAL(HC00171) on Thu Feb 27 2025 Downloaded on : Thu Feb 27 22:40:58 IST 2025 NEUTRAL CITATION R/CR.A/249/2012 JUDGMENT DATED: 27/02/2025 undefined injured has stated before the Court that the said injury was likely to be caused if somebody came running towards the electric poll and dashed with the electric poll. The doctor has denied such suggestion meaning thereby that the injury caused to the injured because of assault made by the accused. So far as the history might be given by the injured with regard to the assault by stick.
16. On perusal of the evidence of P.W.2 - Dr.Dilipkumar Keshavlal Thakkar, who was serving as medical officer at Mehsana Civil Hospital, it appears that before this doctor, different story is recorded in the history. So, there was no mentioned with regard to the injury caused to the injured by dharia. It is also a case of the prosecution that the incident took place in trivial manner that two days prior to the incident, accused No.1 has teased one Manishaben, who is niece of Sikandarbhai and due to which the scuffle took place. It is an admitted fact that though the other accused named have not made any assault upon the injured. Under these circumstances, it is relevant to note herein that though the injured in his examination-in-chief has specifically stated that he was able to identify the stick and dharia which were used for assault he can identify before the Court but when the dharia and stick were shown to the injured, he has not identified the alleged weapons used in the commission of offence before the Court. He has denied that said weapons are not the same articles which were used in the commission of crime. On perusal of the cross- examination of the injured, nothing further was attributable Page 24 of 27 Uploaded by V.R. PANCHAL(HC00171) on Thu Feb 27 2025 Downloaded on : Thu Feb 27 22:40:58 IST 2025 NEUTRAL CITATION R/CR.A/249/2012 JUDGMENT DATED: 27/02/2025 undefined against the accused and on the contrary in his cross- examination, the injured has stated that he was not knowing the names of the assailants and actually he was not witnessed to the incident of the joke.
17. Considering overall facts of the case, it appears that the offence is relating to causing hurt as described in Section 319 and Section 320 of the IPC. Section 319 and Section 320 of the IPC reads as under:-
"319. Hurt.--Whoever causes bodily pain, disease or infirmity to any person is said to cause hurt.
320. Grievous hurt.--The following kinds of hurt only are designated as "grievous":--
First.--Emasculation.
Secondly.--Permanent privation of the sight of either eye. Thirdly.--Permanent privation of the hearing of either ear. Fourthly.--Privation of any member or joint. Fifthly.--Destruction or permanent impairing of the powers of any member or joint.
Sixthly.--Permanent disfiguration of the head or face. Seventhly.--Fracture or dislocation of a bone or tooth. Eighthly.--Any hurt which endangers life or which causes the sufferer to be during the space of twenty days in severe bodily pain, or unable to follow his ordinary pursuits.
18. In view of the explanation given in Section 320 voluntarily causing hurt, we are of the opinion that the conviction of appellant - Lalaji @ Lalo Chaturji Thakor under Section 307 of the IPC is required to be altered to under Section 325 of the IPC. It reveals from the record that the accused being handicapped person walking with the stick and there was sudden quarrel took Page 25 of 27 Uploaded by V.R. PANCHAL(HC00171) on Thu Feb 27 2025 Downloaded on : Thu Feb 27 22:40:58 IST 2025 NEUTRAL CITATION R/CR.A/249/2012 JUDGMENT DATED: 27/02/2025 undefined place while the injured asked the assailant that why he was misbehaved with his sister and, due to which, hot altercation the appellant - accused had inflicted blow on the forehead of the injured and the appellant has undergone the period of 1 year 9 months and 19 days of sentence. On perusal of the jail remarks, we are of the opinion that the sentence undergone by the accused is to be considered then it is sub-serve the interest of justice.
19. Having considered the facts and circumstances of the case and submissions of learned counsel for the parties, this Court is convinced that the impugned judgment of the trial Court requires to be interfered with. Accordingly, we are of the opinion that the conviction of accused - Lalaji @ Lalo Chaturji recorded by the trial Court under Section 307 of IPC should be altered and modified to one under Section 325 of IPC only.
20. In the light of the above discussion, Criminal Appeal No. 76 of 2012 is hereby partly allowed. The conviction of appellant - Lalaji @ Lalo Chaturji Thakor under Section 307 of the IPC is altered to under Section 325 of the IPC. The judgment and order dated 06.01.2012 passed by the learned Special Judge (Atrocity), Mehsana in Special Atrocity Case No. 10 of 2011 is modified to the extent. The appellant has already undergone imprisonment for a period of 1 year 9 months and 19 days as an under-trial prisoner, which shall be given as set off to him. The accused is ordered to be set at liberty forthwith if not required in connection Page 26 of 27 Uploaded by V.R. PANCHAL(HC00171) on Thu Feb 27 2025 Downloaded on : Thu Feb 27 22:40:58 IST 2025 NEUTRAL CITATION R/CR.A/249/2012 JUDGMENT DATED: 27/02/2025 undefined with any other case.
In view of the disposal of Criminal Appeal No. 76 of 2012, Criminal Appeal No. 249 of 2012 and Criminal Appeal No. 247 of 2012 filed by the State of Gujarat are hereby dismissed.
Record and proceedings be transmitted back to the concerned trial Court forthwith.
(ILESH J. VORA,J) (HEMANT M. PRACHCHHAK,J) V.R. PANCHAL Page 27 of 27 Uploaded by V.R. PANCHAL(HC00171) on Thu Feb 27 2025 Downloaded on : Thu Feb 27 22:40:58 IST 2025