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CR.A/835/1997 6/ 6 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
APPEAL No. 835 of 1997
=========================================
FIROZBHAI
BACHUBHAI PATHAN - Appellant(s)
Versus
STATE
OF GUJARAT - Opponent(s)
=========================================
Appearance
:
MR
BS PATEL for Appellant(s) : 1,MRS RANJAN B PATEL for Appellant(s) :
1,
MR HL JANI ADDITIONAL PUBLIC PROSECUTOR for Opponent(s) :
1,
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CORAM
:
HONOURABLE
MR.JUSTICE Z.K.SAIYED
Date
: 30/11/2010
ORAL
ORDER
1. The
present appellant has preferred this Appeal under Section 374 of the
Code of Criminal Procedure, against the judgment and order of
conviction and sentence dated 6.8.1997 passed by the learned
Additional Sessions Judge, Vadodara in Atrocity Case No.22 of 1995,
whereby the learned Sessions Judge has convicted the appellant for
the offences punishable under Sections 354, 506 of the Indian Penal
Code, Section 3(1) (11) of the Scheduled Caste and Scheduled Tribe
(Prevention of Atrocity) Act, 1989. For the offence punishable under
Sections 354 of the Indian Penal Code, the learned trial Judge was
pleased to sentence the appellant to undergo R.I. for 1 year and to
pay a fine of Rs.250/-, in default, to undergo further S.I. for three
months. The appellant was sentenced R.I. for 5 years for the offence
punishable under Section 506(2) of th Indian Penal Code and to pay a
fine of Rs.250/-, in default, to undergo further S.I. for one year
and for the offence punishable under Section 3(1) (11) of the
Atrocity Act, the appellant was ordered to undergo three years R.I.
and to pay a fine of Rs.500/-, in default, further to undergo S.I.
for three months
The
brief facts of the prosecution case is as under:
2. The
allegations levelled against the accused is that on 7.10.1994, when
the complainant was going to her home, the appellant met her in the
way and tried to snatch her hand. The appellant threatened her that
if she would shout, she would be killed by Farsi. Thereafter the
complainant escaped and ran away from that place and therefore, the
appellant chased the complainant, but suddenly her mother went there
and thereafter, both i.e. complainant and her mother went their
residence. Thereafter, the complaint was lodged against the accused
for the offence punishable under sections 354, 506 of the Indian
Penal Code, section 3(1) (11) of the Scheduled Caste and Scheduled
Tribe (Prevention of Atrocity) Act, 1989.
3. Thereafter,
statements of the witnesses were recorded, panchnama was drawn and
accused was arrested. The medical check up of the victim was done and
due to sufficient evidence against the appellant, charge-sheet was
filed before the learned Judicial Magistrate First Class. Thereafter,
as the case was exclusively triable by the Court of Sessions, the
learned Metropolitan Magistrate has committed the case to the Court
of Sessions, which was numbered as Sessions Case No. 22 of 1995.
4. Thereafter,
the charge was framed against the appellant. The appellant –
accused has pleaded not guilty and claimed to be tried.
5. To
prove the case against the appellant, the prosecution has produced
documentary evidence and also examined in all 5 witnesses before the
trial Court and on behalf of the defence side, 5 witnesses have been
examined.
6. Thereafter,
after examining the witnesses, further statement of the appellant –
accused under Section 313 of the Code of Criminal Procedure was
recorded in which the appellant – accused has denied the case
of the prosecution.
7. After
considering the oral as well as documentary evidence and after
hearing the parties, learned Additional Sessions Judge, Vadodara vide
judgment and order dated 6.8.1997 held the appellant – accused
guilty to the charge levelled against him under Sections 354, 506 of
the Indian Penal Code, Section 3(1) (11) of the Scheduled Caste and
Scheduled Tribe (Prevention of Atrocity) Act, 1989, as stated above.
8. Feeling
aggrieved and dissatisfied with the impugned judgment and order of
conviction and sentence passed by the learned Additional Sessions
Judge, Vadodara, the present appellant has preferred this appeal.
9. Learned
advocate Mr. B.S. Patel appearing on behalf of the appellant
submitted that there were several contradiction between the
documentary evidence produced by the prosecution. Even the main
ingredients of Section 506(2) of the Indian Penal Code is not proved.
The order which is passed by the learned trial Judge is not just and
proper and there is delay in lodging the complaint. He further
submitted that he is only arguing on the point quantum and submitted
that the undergone period of the appellant may be considered as
sentence and the appellant may be set at liberty by allowing this
Appeal.
10. The
learned APP Mr. H.H. Parikh for the State strongly opposed the
submissions made by the learned advocate for the appellant. It
was contended by learned APP that the judgment and order of the
Sessions Court is just and proper and as per the provisions of law;
the Sessions Court has properly considered the evidence led by the
prosecution and looking to the provisions of law itself it is
established that the prosecution has proved the whole ingredients of
the evidence against the present appellant. Learned APP has also
taken this court through the oral as well as the entire documentary
evidence.
11. I
have perused the judgment and order and reasons given by the learned
Judge also and I am in total agreement of the reasons assigned by the
learned trial Judge. I have considered his submission about the
quantum of punishment and considering the facts and circumstances of
the case, I am not inclined to consider the undergone period of the
appellant as sentence, but I hold that out of total sentence, he has
to undergo six months in jail.
12. For
the reasons recorded in the judgment, this Appeal is partly allowed.
The judgment and order dated 6.8.1997 passed by the learned
Additional Sessions Judge, Vadodara in Atrocity Case No.22 of 1995,
holding the appellant – accused guilty for the offence
punishable under Sections 354 of the Indian Penal Code and was
pleased to sentence the appellant to undergo R.I. for 1 year and to
pay a fine of Rs.250/-, in default, to undergo further S.I. for three
months. The appellant was sentenced R.I. for 5 years for the offence
punishable under Section 506(2) of th Indian Penal Code and to pay a
fine of Rs.250/-, in default, to undergo further S.I. for one year
and for the offence punishable under Section 3(1) (11) of the
Atrocity Act, the appellant was ordered to undergo three years R.I.
and to pay a fine of Rs.500/-, in default, further to undergo S.I.
for three months.
The
sentenced aforesaid imposed by the learned Sessions Judge is hereby
reduced to the extent of 6 months instead of 5 years (all sentence).
Therefore, the appellant is ordered to undergo the sentence of 6
months imposed by the learned Sessions Judge.
The
appellant is hereby directed to surrender before the Jail Authority
within four weeks from the date of this order, failing which, the
concerned Court shall issue non-bailable warrant to effect the
arrest of the appellant. The fine imposed by the learned Sessions
Judge, if not paid by the appellant, then he is ordered to pay the
fine imposed in the aforesaid order of the learned Sessions Judge. R
& P, if received, be sent back to the trial Court, forthwith.
(Z.K.
SAIYED, J.)
ynvyas
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