ISMAILBHAI IBRAHIMBHAI MOMIN Vs. STATE OF GUJARAT

JUDGEMENT

(1.) The present appeal has been filed by the appellants under Section 374 of the Criminal Procedure Code, against the judgment and order dated 29.01.2004 passed by learned Additional Sessions Judge, Fast Track Court No.3, Patan in Sessions Case No.129 of 2002 (Old Sessions Case No.129 of 1997), whereby the appellants-accused were convicted for the offence punishable under Section 326 read with Section 114 of the Indian Penal Code (herein after referred to as IPC for short). By the impugned judgment, the appellant Nos. 1 to 3 were sentenced to undergo simple imprisonment for a period of three years and ordered to pay Rs.500/- fine each and indefault of payment of fine, simple imprisonment for a period of three months each was imposed and under Section 135 of the Bombay Police Act, the appellant No.1 was sentenced to undergo simple imprisonment for a period of one month.

(2.) The case of the prosecution in short is that the complainant - Mr. Rashid Sharif Memon was residing at Mumbai and was holding land at Village: Samoda, Taluka: Siddhpur. His land was looked after by one Mr. Abdulbhai Ibrahim Memon (accused No.2). On 20.08.1995 at 8:30 a.m., when the complainant approached said Abdulbhai and asked him to return his money which was landed to him, at that time, due to ruckus and commotion, one Ismailbhai Ibrahimbhai Memon (accused No.1) attacked the son of complainant - Arif Rashid Memon with dhariya and inflicted a blow with dhariya on his head and other accused gave fist blows to the complainant and to the son of the complainant and thereby committed offences punishable under Sections 307, 324, 323, 504, 506(2) and 114 of the IPC and Section 135 of G.P. Act. Accordingly, a complaint for the aforesaid offences was filed before the Siddhpur Police Station.

(3.) Learned Senior Advocate Mr. Yogesh Lakhani assisted by learned Advocate Ms. Rinny P. Kantaria has taken this Court through entire records and proceedings and argued that learned trial Court, while appreciating the medical evidence, wrongly, upon the premises of presumptions and conjunctures recorded the finding that the injury was a grievous injury and resultantly wrongly convicted the accused under Section 326 of the IPC though according to the Medical Expert opinion, the injury, was simple in nature which was clearly and categorically deposed by both the doctors in their depositions and even the same is also reflecting from the medical case papers as well as contemporaneous record.