THAKORE SOMAJI PRATAPSINH Vs. STATE OF GUJARAT

JUDGEMENT

(1.) HEARD Ld. Advocate Ms. Manisha Narsinghani appearing for Mr. VC Vaghela for the appellant and Ld. APP Mr. KL Pandya for the respondent - State.

(2.) PERUSED the record. The appellant has been convicted by the impugned judgment and order dated 21/3/2006 in Special Case No. 151/2000 by the Presiding Officer, F.T.C., Palanpur under sections 325 and 114 of the Indian Penal Code [IPC] awarding imprisonment of rigorous imprisonment [RI] of three years with fine of Rs.2,500/ - and in default of payment of fine, RI for one month. He is also convicted only with simple imprisonment [SI] for two months under section 504 of the IPC and further SI for four months under section 135 of the BP Act. All the sentences were directed to run concurrently with set off of period for which he remained in the custody pending trial. Such impugned judgment in Special Case No. 151/2000 is challenged by the appellant, who is accused no. 2; whereas accused no. 1 and main culprit, who was also awarded same sentence, has never challenged such impugned judgment and selected to undergo imprisonment. Therefore, at present we are concerned with present appellant being accused no. 2 before the trial Court.

(3.) THE sum and substance of the appellant's case is very clear and to the limited point that both, in the FIR and in his evidence on oath before the Court, the victim - complainant has though categorically stated that the present appellant has given blow by backside of the Pavda and at that point of time when he fell down, accused no. 1, who is not before us, has given a blow by knife which resulted into injuries on the neck of the victim. In other words, it is crystal clear from the evidence that the present appellant has not given any blow which resulted into any injury whatsoever. Ld. Advocate for the appellant has, therefore, rightly referred the evidence of the victim as PW No. 2 at exh. 21 and evidence of Dr. Pravinbhai Nathabhai Solanki at exh. 42, whereby it becomes clear that the victim has not received any injury whatsoever at the place where there is allegation that the present appellant has given blow by backside of Pavda. The allegation against the present appellant, both in the FIR and in the deposition of the victim is only to the effect that he has given blow of backside of Pavda below the stomach. When injury certificate does not disclose any injury below stomach and when the main injury is on the neck of the victim, which is inflicted by the accused no. 1, there is substance in the submission by the Ld. Advocate for the appellant that there was no role of present appellant in the quarrel and dispute with the complainant, he has been wrongly impleaded as an accused and convicted by the trial Court though there is no reliable and cogent evidence beyond reasonable doubt to confirm his guilt in any manner whatsoever. The record certainly shows that except bare version by the complainant that the appellant has given blow of backside of Pavda below his stomach, there is no evidence either to prove or to corroborate such allegation. The only statement by the PW No. 9 Doctor in his deposition at exh. 42 that there was swelling on the body of the victim and it was on middle part of the body, it cannot be believed and asserted that it was because of the alleged injury by the present appellant, for the simple reason that while recording swelling as such, in his certificate, which is proved at exh. 43, Doctor has specifically stated that it is below and mediate to the wound present and so far as wound is concerned, it is clear and certain that it is on left side of the neck of the victim and not on the stomach. Therefore, if swelling is below wound, then it would be either on the back or on the shoulder but not below the stomach.