Gujarat High Court
Mer Vanza Abha vs The State Of Gujarat on 24 March, 2017
Author: Z.K.Saiyed
Bench: Z.K.Saiyed
R/CR.RA/453/2007 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL REVISION APPLICATION NO. 453 of 2007
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE Z.K.SAIYED
================================================================
1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of
the judgment ?
4 Whether this case involves a substantial question of
law as to the interpretation of the Constitution of
India or any order made thereunder ?
================================================================
MER VANZA ABHA....Applicant(s)
Versus
THE STATE OF GUJARAT....Respondent(s)
================================================================
Appearance:
MR SUNIL C PATEL, ADVOCATE for the Applicant(s) No. 1
MR. N.J.SHAH, APP, for the Respondent(s) No. 1
================================================================
CORAM: HONOURABLE MR.JUSTICE Z.K.SAIYED
Date : 24/03/2017
CAV JUDGMENT
[1] Present Criminal Revision Application has been filed by the applicant-original accused under Section 397 read with Section 401 read with Section 482 of the Code of Criminal Procedure, interalia challenging the judgment and order dated 07.07.2007 passed in Criminal Misc. Appeal No.01 of 2001 by the learned Sessions Judge, Porbandar, whereby the conviction imposed Page 1 of 7 HC-NIC Page 1 of 7 Created On Sat Mar 25 00:17:55 IST 2017 R/CR.RA/453/2007 CAV JUDGMENT upon the applicant by the learned Judicial Magistrate First Class, Kutiyana in Criminal Case No.302 of 1987 vide order dated 02.01.2001 under Section 326 of the IPC for a period of two years simple imprisonment with fine of Rs. 500/-, in default, further simple imprisonment for a period of fifteen days, is confirmed.
[2] It is the case of the prosecution that the complainant Lilabhai Merubhai Mer, resident of Siddhpur was working as companion with Mer Abhabhai Ramabhai. They were residing at Vadi of Abhai Giga with Gerubhai Vinzabhai and his wife Nathiben. On 14.07.1987 when the complainant and applicant- accused were at Vadi and after completing the work when the complainant was sleeping on Cot, the applicant-accused came in the house and caught the nose of the complainant and cut it with the knife. Therefore, the complainant got up and asked what are you doing? The applicant-accused told him to run away and therefore, he did this. The complainant described the incident to his family. The complainant and applicant-accused were working together and applicant-accused insisted the complainant to leave the job. Since the complainant did not accept the same, the applicant-accused cut the nose of the complainant. Therefore, complaint was lodged before the Kutiyana Police Station being I-C.R.No. 80 of 1987.
[3] Thereafter, investigation was carried out and statement of the witnesses were recorded and charge-sheet was filed for the offence punishable under Section 326 of the IPC and under Section 135 of the Bombay Police Act and then, the applicant-accused was arrested.
Page 2 of 7HC-NIC Page 2 of 7 Created On Sat Mar 25 00:17:55 IST 2017 R/CR.RA/453/2007 CAV JUDGMENT [4] On the basis of above allegations, charge was framed at Exh.5 against the accused and read-over and explained to the accused for the alleged offences and plea was recorded at Exh.6, wherein, accused pleaded not guilty to the charge and claimed to be tried.
[5] In order to bring home the charges against the accused person, prosecution has examined four witnesses and also produced documentary evidences.
[6] After examining the witnesses, further statement of the applicant-accused under Sec. 313 of Cr.PC, 1973 was recorded, wherein the applicant has denied the case of the prosecution and has pleaded his innocence. The applicant has submitted that a false case is filed against him.
[7] After considering the oral as well as documentary evidence and after hearing the parties, learned Judicial Magistrate First Class, Kutiyana vide judgment and order dated 02.01.2001 convicted the applicant-accused for the aforesaid period.
[8] The aforesaid order was challenged by the applicant by way of Criminal Misc. Appeal No.01 of 2001 before the learned Sessions Judge, Porbandar, who vide order dated 07.07.2007, confirmed the order of learned Judicial Magistrate First Class, Kutiyana dated 02.01.2001.
[9] Being aggrieved by and dissatisfied with the aforesaid judgment and order passed by the learned Sessions Judge, Porbandar, applicant-original complainant has preferred this revision application.
Page 3 of 7HC-NIC Page 3 of 7 Created On Sat Mar 25 00:17:55 IST 2017 R/CR.RA/453/2007 CAV JUDGMENT [10] Heard Mr.Sunil Patel, learned advocate for the applicant-original and Mr. N.J.Shah, learned Additional Public Prosecutor for respondent-State.
[11] Mr.Sunil Patel, learned advocate for the applicant contended that the judgments and order passed both the Courts below are illegal, invalid and improper. He has also contended that the Courts below have not considered the case of the defence and material evidence produced on record and has passed absolutely wrong order. He has contended that the prosecution has miserably failed to prove its case beyond reasonable doubt, yet the both the Courts below have not considered the probable defence of the applicant-accused and has wrongly convicted the applicant-accused. In present case, learned Judicial Magistrate First Class, Kutiyana convicted the applicant-accused and during the trial, he was released on bail. The said conviction order was challenged by the applicant before the learned Sessions Judge, Kutiyana by way of Criminal Misc. Appeal No.01 of 2001. The leaned Sessions Judge, Porbandar confirmed the order of conviction after a period of of six years i.e. on 07.07.2007. In present case, due of difference of opinion, since proposal made by the applicant to the complainant leave the job was not accepted by the complainant, false and bogus complaint was filed by the complainant and present applicant was wrongly convicted by the learned trial Judge though probable defence made by the applicant. He submits that the present applicant is old and after a period of 16 years, present revision application has been listed on board and therefore, on the ground of mercy, he Page 4 of 7 HC-NIC Page 4 of 7 Created On Sat Mar 25 00:17:55 IST 2017 R/CR.RA/453/2007 CAV JUDGMENT urges that present applicant may be released on probation. He contended that the incident in question took place on 14.07.2017, whereas, the complainant took the treatment on 17.07.1987. Mr. Patel relied upon the decisions rendered in the case of A.P. Raju v/s. State of Orissa, reported in, 1995 SCC (Cri) 675 and in the case of Mohd. Hashim v/s. State of Uttar Pradesh and others, reported in (2017) 2 SCC 198. Learned advocate for the applicant argued at length and contended that the judgments and order of both the Courts below are against the provisions of law and learned trial Judge has wrongly considered the evidence of the prosecution and wrongly convicted the applicant-accused for the alleged offences. He therefore, urged that present application may be allowed and some leniency may be awarded to the applicant.
[12] As against this, Mr.N.J.Shah, learned Additional Public Prosecutor, has contended that the judgment and order passed by the learned Sessions Judge is absolutely just and proper. He has contended that the prosecution has proved its case beyond reasonable doubt. He contended that the applicant- accused and complainant were working together at Vadi. The applicant-accused consistently insisted the complainant to leave the job. As the complainant did not accept the proposal made by the applicant-accused, the applicant-accused cut the nose of the complainant with knife while he was sleeping in Cot. He contended that the complainant has taken medical treatment in Government Hospital. The complaint lodged by the complainant gets corroborated though his oral version and he also identified the applicant-accused. In present case, concurrent findings are recorded by the learned trial Court as well as learned appellate Court. He contended that reliance Page 5 of 7 HC-NIC Page 5 of 7 Created On Sat Mar 25 00:17:55 IST 2017 R/CR.RA/453/2007 CAV JUDGMENT placed by learned advocate for the applicant in above referred citations are not helpful to the applicant. Former citation in the case of A.P.Raju (Supra) pertains to rash and negligent driving. In later citation Mohd. Hashim (Supra), the Apex Court has considered the probation. However in present case, the applicant may not be given benefit of probation considering the seriousness of the injury. He contended that looking to the overall facts and circumstances of the case, and evidence produced on record, the order passed by the learned Sessions Judge is absolutely just and legal and is not required to be interfered with and therefore, he prayed to dismiss the present revision.
[13] I have gone through the impugned judgments and orders passed by both the Courts below and oral as well as documentary evidence produced on record of the case. I have read the oral evidence of prosecution witness and also perused the charge framed against the applicant-accused.
[14] In present case, the complainant and applicant- accused were working together at Vadi and applicant-accused consistently insisted the complainant to leave the job. When the complainant did not pay heed to the said proposal made by the applicant-accused, the applicant-accused cut the nose of the complainant with knife while he was sleeping in Cot and thereby committed serious offence under Section 326 of the Act.The injury received by the complainant gets substantiated though medical evidence also. Further, concurrent findings are recorded by the both the Courts below and the applicant- accused is not unable to bring new facts on record. Mr. Patel, learned advocate for the applicant urges that the present Page 6 of 7 HC-NIC Page 6 of 7 Created On Sat Mar 25 00:17:55 IST 2017 R/CR.RA/453/2007 CAV JUDGMENT application may be released on probation, however looking to the seriousness of the injury, request made by learned advocate cannot be acceded to.
[15] I am, therefore of the opinion that the learned trial Judge has not committed any error in convicting the applicant- accuse. Therefore, no interference is required. The judgment and order of conviction dated 02.01.2001 passed in Criminal Case No.302 of 1987 by the learned Judicial Magistrate First Class, Kutiyana and order dated 07.07.2007 passed in Criminal Misc. Appeal No.01 of 2001 by the learned Sessions Judge, Porbandar, are hereby confirmed. The present Criminal Revision Application deserves to be dismissed and is hereby dismissed. Record and Proceedings, if any, be sent back to the trial Court concerned, forthwith. The bail bond of the applicant-accused shall stand cancelled and he is directed to surrender before the jail authority within a period of four weeks from today.
(Z.K.SAIYED, J.) siddharth Page 7 of 7 HC-NIC Page 7 of 7 Created On Sat Mar 25 00:17:55 IST 2017