GANESH SAKHARAM Vs. STATE OF GUJARAT

JUDGEMENT

(1.) THE appellant original accused has filed this Appeal under Section 374 of Cr.P.C. against the Judgment and order of conviction and sentence dated 18.03.2006 passed by the learned Presiding Officer & Additional Sessions Judge, Fast Track Court No.13, Vadodara, in Sessions Case No. 254 of 2005, whereby the learned Additional Sessions Judge has held the appellant accused guilty for the offence under Section 326 of I.P. Code and sentenced him to suffer Rigorous Imprisonment for 5 years with fine of Rs.50,000/- i/d to further undergo SI for one year. THE learned Judge has also ordered that if the amount of fine is paid by the accused, out of the said amount Rs.10,000/- would go to the State exchequer and the remaining amount of Rs.40,000/- to be paid to the victim Nilesh Kondulal Sinde. THE brief facts of the case of prosecution are that on the date of incident, after finishing the dinner, the complainant along with Nilesh Konduram Sinde, Imran Pathan and Nilu Karanje was sitting and talking with each other. It is alleged that at that time the accused came there in a drunken condition. He was having acid bottle with him. He rushed towards Nilesh Sinde and asked him that why he (Nilesh Sinde) is moving with Vijay Tapre and thereafter he was excited and threw the acid from the bottle on the face of Nilesh Sinde and injured him. It is alleged that the accused also threw the acid on witness Imran Pathan. THEy shouted for help and thereupon persons nearby came there. THE injured was taken to the hospital. THEreafter the complaint was lodged against the accused. Offence under Section 307 of I.P. Code and Section 135 of B.P. Act was registered against the accused. Necessary investigation was carried out by the Police. THE statements of the complainant and other witnesses were recorded. THEreafter, after completion of investigation the charge-sheet against the accused came to be submitted before the Court. As the offence under Section 307 was triable by the Court of Sessions, the learned Magistrate committed the case to the Court of Sessions. THE learned Additional Sessions Judge framed the charge against the accused. THE accused pleaded not guilty to the charge and claimed to be tried. To prove the case against the accused, the prosecution has examined 14 witnesses and also relied upon documentary evidence and at the end of trial, after recording the statement of the accused under Section 313 Cr. P.C., and after hearing the arguments on behalf of the prosecution and the defence, the learned Additional Sessions Judge held the appellant accused guilty of the offence under Section 326 of I.P. Code, instead of offence punishable under section 307 of I.P. Code and awarded sentence as narrated herein above. Being aggrieved by and dissatisfied with the aforesaid Judgment and order of conviction and sentence the appellant accused has preferred this Appeal. Heard learned advocate Mr. Thakor, appearing on behalf of the appellant and learned APP Mr. H.H. Parikh on behalf of the respondent State. I have gone through the Judgment and order passed by the trial Court. I have also considered the documents produced on the record of the case. Learned Advocate, appearing on behalf of the appellant accused, has contended that the applicant accused has not committed any offence as alleged in the charge. He has also read the evidence of medical expert (P.W.8) (Exh.20) and contended that looking to the medical evidence the case against the appellant accused for the offence u/s. 326 is not proved. He has also contended that Panch witness has not supported the case of the prosecution and was declared as hostile and, therefore, the panchnama is a corroborative piece of evidence. He has contended that the prosecution has not examined any independent witness and the eye witnesses, examined by the prosecution, are the interested witnesses and they are friends of the injured witness and, therefore, their evidence cannot be considered straightway. He has contended that the prosecution has failed to prove the motive as well as the intention of the accused and, therefore, the trial Court has committed an error in holding the accused guilty for the offence under Section 326 of I.P. Code. THE learned Advocate has also contended that looking to the evidence on record sentence imposed by the trial Court is also very harsh and considering the facts and circumstances of the case some mercy be shown upon the appellant accused. Learned APP has supported the Judgment and order passed by the Sessions Court and contended that looking to the seriousness of offence no interference of this Court is called for. He has contended that looking to the evidence on record it clearly appears that the accused has reached to the place of offence with acid bottle with an intention to assault on the injured witnesses. He has contended that looking to the facts and evidence on records the learned Judge has rightly held the accused guilty for the offence alleged against him and, therefore, no interference is called for. I have gone through the Judgment and order passed by the learned Additional Sessions Judge and also gone through the documents produced before me. I have also considered the submissions made by the learned Advocates for the parties. To prove the case against the accused the prosecution has examined P.W. 1 Nileshbhai Kondiram Sinde (Exh.10) and P.W.2 Imrankhan Mohmedkhan Pathan (Exh.11). P.W. 2 - Imran has clearly deposed that the accused had threw the acid on Nilesh Sinde (P.W.1) and, therefore, P.W. 1 Nilesh received burn injuries and as he was very near to the said injured Nilesh, he has also received some burn injury. THE version of injured witnesses is also supported by P.W. 3 Nilu Sitaram (Exh.12) and other witnesses examined by the prosecution. From the perusal of oral evidence of said witnesses it clearly appears that the witnesses are the eye witnesses to the incident and they were present at the place of offence and, therefore, there is no reason to disbelieve their testimony. Even looking to the evidence of medical officer it is clearly established that the injured persons have received burns injuries which are possible by sprinkling of the acid. I have also considered the evidence of P.W. 8 - Dr. Pravinaben Thakkar, Exh.20. THE said witness has examined the injured Nilesh Kondiram Sinde and Imran. She has deposed that both the injured have stated before her that Ganesh Sakharam (accused) had threw the acid on them. She has also issued Certificate vide Exh.21 and Exh.22 respectively to that effect. Except minor contradictions, all the witnesses have supported the case of prosecution. Looking to the facts and circumstances of the case and looking to the fact that, except minor contradictions, the witnesses have supported the case of prosecution, supported by medical evidence, and, therefore, the trial Court has not committed any error in disbelieving the case of prosecution. Looking to the ingredients of Section 326 of I.P. Code and the quantum of sentence, the trial Court has properly awarded the sentence to the accused and, therefore, the contention of learned Advocate that the sentence is very harsh is not tenable and no interference is required to be called for by imposing lesser sentence to the accused. In view of above, in my opinion, the trial Court has rightly held the accused guilty of the offence for which he has been convicted and also the sentence awarded is just and adequate and hence no interference is called for. Accordingly, this Appeal is dismissed. THE Judgment and order dated 18.03.2006 passed by the learned Presiding Officer & Additional Sessions Judge, Fast Track Court No.13, Vadodara, in Sessions Case No. 254 of 2005 is confirmed. THE appellant accused is on bail and, therefore, he is directed to surrender before the trial Court within four weeks from the date of receipt of writ of this order to serve the sentence awarded to him, failing which the trial Court is directed to issue non-bailable warrant against the accused. Bail Bonds shall stand cancelled. R & P to be sent back to the trial Court.