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CR.A/1418/2006 7/ 7 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
APPEAL No. 1418 of 2006
For
Approval and Signature:
HONOURABLE
MR.JUSTICE Z.K.SAIYED
=========================================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To be
referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
=========================================================
BHARAT
VASHRAMBHAI RABARI & 1 - Appellant(s)
Versus
STATE
OF GUJARAT - Opponent(s)
=========================================================
Appearance
:
MR
KASHYAP R JOSHI for
Appellant(s) : 1 - 2.
MR HH PARIKH LD. APP for Opponent(s) :
1,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE Z.K.SAIYED
Date
: 06/10/2010
ORAL
JUDGMENT
1. The
present appellant has preferred this appeal under sec. 374(2) of the
Code of Criminal Procedure, against the judgment and order of
conviction and sentence dated 20.7.2006 passed by the learned Addl.
Sessions Judge, Fast Track Court no. 2, Bharuch in Sessions Case No.
21/2006, whereby, the learned Judge has convicted the appellant no. 1
under sec. 304-II of IPC and sentenced to undergo R/I for five years
and to pay a fine of Rs. 1000/-, in default, to undergo further S/I
for three months. The appellant no. 2 is also convicted under sec.
304-II of IPC and sentenced to undergo R/I for a period of three
years and to pay a fine of Rs 1000/-, in default, to undergo further
S/I for three months, which is impugned in this appeal.
Mr.
Kashyap R. Joshi learned advocate appearing for the appellants has
made a statement at the bar that the appellant no. 1 has been
released on his completion of sentence by the Jail Authority and,
therefore, he is arguing this appeal qua appellant no. 2.
2. The
brief facts of the prosecution case is as under:
3. That
on 21.10.2005, when the nephew of complainant named Dhaval was
cracking fire crackers in front of the house of complainant. The
accused no. 1 Bharat Vashrambhai, who is residing near the house of
deceased, came and asked Dhaval that why he is cracking the fire
crackers and abused him. At that time, the elder brother of the
complainant namely Ashwinbhai told that accused no. 1 that due to
Diwali festival and therefore, he is cracking the fire crackers, so
why are you abusing ? Being aggrieved by the said utterance, the
accused no. 1 had been provoked and went in his house and called his
father, that is, accused no. 2. He came with knife and assaulted on
the deceased Ashwinbhai and stabbed the same on the left side of his
chest. At that time, accused no. 1 was armed with stick and had given
stick blow on the back side of Ashwinbhai, due to which, he fell down
and there was a bleeding. The other family members including the
complainant and his sister, brother-in-law and father-mother of
Ashwinbhai tried to free the deceased from the accused persons. They
had also been beaten by the accused persons. Thereafter, Ashwinbhai
became unconscious and both the accused persons went away from the
place of offence and then, Ashwinbhai was taken to Government
Referral Hospital in a Tempo of one Rafiqbhai, where, he had been
declared dead after examined by the Doctor.
4. Therefore
a complaint came to be filed by the complainant. The panchnama of the
scene of offence place was prepared in the presence of panch witness,
inquest panchnama was also prepared and statements of witnesses were
recorded and on completion of the investigation, charge-sheet was
filed in the Court of learned JMFC, Zaghadia. Thereafter, as the case
was exclusively triable by the Court of Sessions, the learned
Magistrate has committed the case to the Court of Sessions, which was
given number as Sessions Case No. 21/2006.
5. Thereafter,
the charge was framed at Ex. 1 against the appellants. The appellants
accused have pleaded not guilty and claimed to be tried.
6. In
order to bring the home the charge levelled against the appellants-
accused, the prosecution has examined the witnesses and also produced
documentary evidence before the trial Court.
7. Thereafter,
after examining the witnesses, further statement of the
appellants-accused under sec. 313 of CrPC was recorded in which the
appellant-accused has denied the case of the prosecution.
8. After
considering the oral as well as documentary evidence and after
hearing the parties, learned vide impugned judgment and order dated
20.7.2006 held the appellants accused guilty to the charge
levelled against them under sec. 304-II of IPC and convicted and
sentenced the appellants accused, as stated above.
9. Being
aggrieved by and dissatisfied with the impugned judgment and order of
conviction and sentence passed by the learned Addl. Sessions Judge,
Fast Track Court no. 2, Bharuch, the present appellants have
preferred this appeal.
10. Heard
Mr. Kashyap Joshi learned advocate for the appellants and Mr HH
Parikh learned APP for the respondent-State.
11. Mr.
Joshi learned advocate for the appellants has fairly admitted that
he is only arguing the matter on the point of quantum of punishment
and not arguing the matter on merits. Mr Joshi has further submitted
that the present appellant no. 2 is a father of original accused no.
1 and it was a case of free fight and self defence, but the learned
Judge has not considered the said issue and due to the fatal injury
caused by original accused no. 1, the present appellant no. 2 is also
convicted for the offence under sec. 304-II of IPC. He has also
contended that looking to the age of the present appellant no. 2, a
very harsh conviction has been imposed upon him by the learned Judge,
which is required to be reduced. In that view of the matter, the
period of sentence is very harsh and looking to the age of the
appellant no.2, the sentence may be reduced. He has further contended
that the appellant no. 2 is a very poor person and he is the only
bread earner member in the family, and therefore, the sentence
imposed upon the present appellant no. 2 by the learned Judge may be
reduced in the interest of justice.
12. On
the otherside, learned APP Mr HH Parikh has read the impugned
judgment and order of conviction and sentence passed by the learned
Judge and contended that the impugned judgment and order is required
to be confirmed. He has also contended that the stick is concerned,
it is a ring coated stick and present appellant no. 2 is bye caste
Rabari and ring coated stick is a deadly weapon and, therefore,
looking to the conduct of the present appellant and the role, which
is proved beyond reasonable doubt before the learned Judge, the same
is just and proper and requires to be confirmed.
13. I
have gone through the oral as well as documentary evidence produced
on the record. I have read the oral evidence of prosecution
witness-complainant and also perused the charge framed against the
appellant. Looking to the allegations levelled against the present
appellant, they are very serious in nature, but looking to the
conduct of the present appellant no. 2 is concerned, it is covered
within the meaning of sec. 114 of IPC and the ring coated stick blow
was given by the appellant no. 2 after the injured has received knife
injury. No doubt, it is a request of the learned advocate for the
appellant no. 2 that is a bread winner for the family and he was on
bail during the trial and he also submitted that he is an old man and
the sentence imposed upon him by the learned Judge is very harsh in
nature and therefore, only on the ground of mercy the sentence may be
reduced. In that view of the matter, when the learned advocate Mr
Joshi appearing for the appellant no. 2 is not arguing the matter on
merits but arguing the matter on the point of quantum of sentence, I
am of the opinion that this is a fit case to reduce the sentence.
14. In
the result, this appeal is partly allowed. The impugned judgment and
order of conviction dated 20.7.2006 passed in Sessions Case No.
21/2006 by the learned Addl. Sessions Judge, Fast Track Court no. 2,
Bharuch convicting the appellant no. 2 ori. Accused no. 2 under
sec. 304-II of IPC is hereby confirmed. However, the order of
sentence sentencing the appellant no. 2 to undergo R/I for 3 years
for the aforesaid offence under sec. 304-II of IPC, is hereby
reduced to the extent that instead the appellant no. 2 is hereby
sentenced to undergo the sentence for a period of 2 years. Rest of
the impugned judgment and order is confirmed.
17. The
present appellant no. 2 Vashrambhai Mashrubhai Rabari is
directed to surrender before the Jail Authority within a period of
four weeks from the date of this order, failing which, the
concerned Sessions Court shall issue non-bailable warrant to effect
the arrest of the appellant-ori. Accused.
(Z.K.SAIYED,
J.)
mandora/
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