IBRAHIM DIPSINH GARASIA Vs. STATE OF GUJARAT

JUDGEMENT

(1.) The appellants have questioned the legality and validity of the judgment and order of conviction and sentence passed against them by the Sessions Court at Baroda in Sessions Case No. 171/83 on 10.2.1984 holding the accused persons guilty for the offence punishable under section 324 of the Indian Penal Code. The appellants/accused are sentenced to suffer rigorous imprisonment for six months and to pay a fine of Rs.500 and in default to undergo rigorous imprisonment for two months for the offence punishable under section 324 of the Indian Penal Code. Learned counsel Mr. K.B. Anandjiwala who is appointed as an amicus curie by this court to aid and assist the appellants/accused who has raised the following two contentions: 1 That the prosecution has failed to establish the guilt of the accused under Section 324 of the Indian Penal Code beyond reasonable doubt. 2 That the order of sentence is harsh and excessive and in the alternative the accused persons are entitled to the benefit of probation. Learned A.P.P. Mr. Dave while appearing for the respondent-State has forcefully countenanced the aforesaid two contentions. In order to appreciate the merits of the appeal and the challenge against it it would be expedient at this juncture to have a look at the factual scenario emerging from the record of the present case. Appellants Nos. 1 and 2 are the original accused Nos. 1 and 2 in the aforesaid trial who are hereinafter referred to as accused Nos. 1 and 2 respectively for the sake of convenience and brevity. Accused No.2 is the owner of a Hotel run in the name of Mugal Hotel in Wadi area of Baroda. Accused No. 1 was a servant working and serving in the said Hotel at the relevant time. The incident in question occurred between 8.30 A.M. and 9 A.M. on 5.5.1983.

(2.) According to the prosecution case the injured-Ashokbhai Ravjibhai Patel and the complainant one Rakeshbhai Kantilal alongwith two other persons went to the Hotel between 8.30 A.M. and 9 A.M. for tea. The injured had ordered for two cups of tea and four glasses of water. It was alleged that accused No. 1 a servant of the said hotel had brought two cups of tea but did not bring water as ordered or asked for by the injured. Therefore the inJured reiterated and again requested for service of water. However accused No. 1 told to the injured that water will not be served. It appears that the injured and the other three persons were to take tea outside the hotel and accused No. 1 refused to serve water outside the hotel. The injured thereafter asked the accused No.1 as to why water was not served as service of water is always given even outside hotel. There were some altercations between the accused No. 1 and the injured and the accused No. 1 became enraged. Therefore accused No. 1 threw a glass of water on the person of the injured-Ashokbhai which caused hurt to the injured on his face. Thereafter two friends of the injured intervened and had caught hold of accused No.1. In the meantime accused No.2 the owner of the said Hotel who was attending the counter came near the injured with a knife and inflicted two successive blows on the person of the injured. Thereafter because of intervention of other persons and personnel of S.R.P. the injured was taken to the hospital for treatment and one of the friends of the injured went to Wadi Police Station and lodged the complaint within almost an hour after the incident.

(3.) Investigation was carried out into the said allegations by the police pursuant to the complaint lodged by Rikesh Kantilal and on completion of the investigation both the accused persons were charge sheeted for the offences punishable under Sections 37 323 and 426 read with Section 114 of the Indian Penal Code and also under Section 135(1) of the Bombay Police Act in the court of the learned Judicial Magistrate First Class Baroda on 27.10.1983. However since the offence under Section 307 of the Indian Penal Code being exclusively triable by the Court of Sessions the learned Magistrate committed the case for trial to the Courts of Sessions at Baroda on 10.11.1983. The accused persons were charge-sheeted in the Sessions Court for the offences punishable under Sections 307 326 and 323 of the Indian Penal Code read with Section 114 of the Indian Penal Code and also for the offence under Section 135 of the Bombay Police Act 1951 to which the accused persons pleaded not guilty and claimed to be tried.