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CR.A/148/1997 8/ 8 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
APPEAL No. 148 of 1997
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 ?
=========================================
BHARWAD
KUKA KHENGAR & 2 - Appellant(s)
Versus
STATE
OF GUJARAT - Opponent(s)
=========================================
Appearance
:
MR
YOGESH S LAKHANI for Appellant(s) : 1 - 3.
MR AJ DESAI ADDITIONAL
PUBLIC PROSECUTOR for Opponent(s) :
1,
=========================================
CORAM
:
HONOURABLE
MR.JUSTICE Z.K.SAIYED
Date
: 25/03/2010
ORAL
JUDGMENT
1.
The appellants have preferred this appeal u/s 374(2) of the Code of
Criminal Procedure, 1973 (hereinafter referred to as the Code for
brevity) challenging the order of conviction passed by the learned
Additional Sessions Judge, Surendranagar on 21st January,
1997 in Sessions Case No.59 of 1992 convicting the appellants –
original accused of the charges of commission of offence punishable
under Sections 447, 333, 325, 323, 114, 504, 506(2) of the Indian
Penal Code and under Sections 161 and 162 of the Gujarat Panchayat
Act as well as under Section 135 of the Bombay Police Act.
2.
The facts in brief leading to filing of the present appeal deserves
to be set out as under:
3.
It is the case of the prosecution that the complainant was working in
Forest Department of State of Gujarat as a Beat Guard. On 1.8.1988 at
about 5:00 p.m., he along with other co-employees were on duty in the
area, where they found that the accused persons were grazing their
cattle and therefore, the complainant told them to attach the cattle.
Therefore, the accused persons assaulted upon the complainant and
other persons with sticks and Dhariya. Therefore, the complaint was
registered against the accused persons under Sections 333, 325, 323,
114, 504 and 506(2) and under Sections 161 and 162 of the Gujarat
Panchayat Act as well as under Section 135 of the Bombay Police Act.
4.
The accused pleaded not guilty and claimed to be tried the case.
Further statement of the accused recorded under the provisions of
Section 313 of the Code of Criminal Procedure. During the course of
trial, following witnesses from the prosecution side, have been
examined before the learned Sessions Judge.
P.W.1
Khimjibhai Gelabhai Complainant at Exhibit 9.
P.W.2
Jivan Raymal Exhibit 11.
P.W.3
Kuka Laghabhai Exhibit 12.
P.W.4
Medical Officer, Anjanaben Narendrabhai Exhibit 14.
P.W.5
Jivraj Karsanbhai Exhibit 19
P.W.6
Dilubhai Gandabhai Exhibit 20
P.W.7
PSI S.J. Malek Exhibit 22.
P.W.8
P.S.I., Mahendrasinh M. Rathod Exhibit 26.
The
documentary evidence produced before the learned Sessions Judge, are
as under:
Exhibit
4 : Charge-sheet.
Exhibit
10 : Complaint.
Exhibit
16 : Medical Certificate of Khimjibhai.
4.
Exhibit 18 : Medical Certificate of Jivanbhai Raybhan.
5. Exhibit 21 :
Panchnama.
6. Exhibit 27 :
Panchnama.
5.
After hearing both the parties, the learned Additional Sessions
Judge, Surendranagar vide judgment and order dated 21st
January, 1997 in Sessions Case No.59 of 1992, was pleased to held
guilty the accused and imposed sentence upon them as under :
6. The appellants
accused are convicted for the offence punishable under Section 161 of
Gujarat Panchayat Act and sentenced to undergo R.I. for 7 days and to
pay a fine of Rs.250/- each i/d to further undergo R.I. for 7 days.
Also, the appellants accused are convicted for the offence
punishable under Section 162 of the Gujarat Panchayat Act and
sentenced to undergo R.I. for 1 month and to pay a fine of Rs.250/-
each, i/d further R.I. of 7 days. The appellants accused are
convicted for the offence punishable under Section 447 of the Indian
Penal Code and sentenced to undergo R.I. for 1 month, and to pay fine
of Rs.100/- each, i/d further R.I. of 7 days. The appellants –
accused are also convicted for the offence punishable under Section
332 and sentenced to undergo R.I. for 6 months and to pay a fine of
Rs.100/- each, i/d further R.I. of 7 days. The appellants No.1 and 2
accused are convicted for the offence punishable under Section
333 read with Section 114 of the Indian Penal Code and sentenced to
undergo R.I. for one year and to pay fine of Rs.250/- each, i/d
further R.I. of 7 days. The appellant No.3 – accused is convicted for
the offence punishable under Section 333 of the Indian Penal Code and
sentenced to undergo sentence R.I. for 3 years and to pay fine of
Rs.250/-, i/d further R.I. of 7 days.
7.
Being aggrieved and dissatisfied with the said order, the appellants
preferred present appeal.
7.
Heard Mr. Yogesh Lakhani, learned senior counsel appearing on of the
appellants and learned APP Mr. A.J. Desai appearing on behalf of the
respondent State.
8. Learned
senior counsel Mr. Yogesh Lakhani has submitted that the impugned
order of conviction being erroneous and contrary to the record of the
case, deserves to be quashed and set aside. He has submitted that the
learned Sessions Judge has not considered the defence of the present
appellants, while passing the judgment and order. He has also
contended that as per the complainant’s case, the complainant has
been assaulted by the appellants but the medical evidence does not
support the case of prosecution. The complainant tried to drive out
the cattle of the accused and at that time, the complainant jumped
the wall of Vidi to save himself from cattle and fell down and
sustained injuries. He has also contended that there is material
contradiction in the deposition of the witnesses. There is no any
independent witness and learned Sessions Judge relied upon the
deposition of the interested witness though there is no corroborative
evidence on record to hold the conviction. Lastly, he has also
submitted that he is arguing this matter only on the point of quantum
of punishment and has prayed for lesser punishment. He has contended
that the present appellants may be imposed lesser punishment by
reducing the sentence, which is imposed by the learned Sessions
Judge.
9.
Shri A.J. Desai, learned APP appearing for the respondent-State has
supported the judgment and order passed by the learned Sessions
Judge. But he submitted that the State has no objection, if the
submission of the learned senior counsel Mr. Lakhani appearing on
behalf of the appellants accused for lesser punishment is
considered.
10.
This Court has perused the records and proceedings of the Trial Court
and heard the learned counsel of the respective parties at length. On
perusal of the record and the submission made by both the learned
counsel, I am of the opinion that the decision of the Trial Court
does not suffer from any infirmity whatsoever. The appellants have
failed in establishing that the decision of the Trial Court suffers
from any perversity. On the contrary the decision of the Trial Court
is just and proper and it is based upon the evidence and it is after
proper appreciation. The Trial Court has rightly come to the
conclusion that the appellants has failed in establishing its case
beyond reasonable doubt and, therefore, the order of acquittal dated
21.1.1997
passed by learned Additional Sessions Judge,
Surendranagar in Sessions Case No.59 of 1992 deserves to be
confirmed. But considering the submissions made by the learned senior
counsel Mr. Lakhani appearing on behalf of the appellants accused
that the Sessions Judge convicted the accused and he has also
admitted that there is no reason to say regarding the reasons
assigned in the judgment and order passed by the learned Sessions
Judge, but he has prayed to reduce the sentence. So in that
circumstances, I am of the opinion that the submissions made by the
learned senior counsel appearing on behalf of the appellants
accused is required to be considered and the submissions are
supported by the learned APP Mr. Desai and I am
inclined to modify the order of the learned Sessions Judge by partly
allowing this appeal.
11. This
Appeal is partly allowed. The judgment and order dated 21.1.1997
passed by the learned Additional Sessions Judge, Surendranagar in
Sessions Case No.59 of 1992, is hereby confirmed. However, the
sentence awarded by the learned Judge is modified to the following
extent :
The appellants accused
are convicted for the offence punishable under Section 161 of Gujarat
Panchayat Act and sentenced to undergo R.I. for 7 days and to pay a
fine of Rs.250/- each i/d to further undergo R.I. for 7 days. Also,
the appellants accused are convicted for the offence punishable
under Section 162 of the Gujarat Panchayat Act and sentenced to
undergo R.I. for 1 month and to pay a fine of Rs.250/- each, i/d
further R.I. of 7 days.
The appellants accused
are convicted for the offence punishable under Section 447 of the
Indian Penal Code and sentenced to undergo R.I. for 1 month, and to
pay fine of Rs.100/- each, i/d further R.I. of 7 days.
The appellants No.1 and 2
– accused are also convicted for the offence punishable under Section
332 and sentenced to undergo R.I. for 4 months and to pay a fine of
Rs.100/- each, i/d further R.I. of 7 days.
The appellants No.1 and 2
accused are convicted for the offence punishable under Section 333
read with Section 114 of the Indian Penal Code and sentenced to
undergo R.I. for 4 months and to pay fine of Rs.250/- each, i/d
further R.I. of 7 days.
The appellant No.3 –
accused is convicted for the offence punishable under Section 333 of
the Indian Penal Code and sentenced to undergo sentence R.I. for 1
year and to pay fine of Rs.250/-, i/d further R.I. of 7 days.
The substantive sentence
shall run concurrently.
Rest of the judgment and
order of the trial Court is hereby confirmed.
The appellants original
accused are directed to surrender themselves before the Jail
Authority within a period of six weeks from the date of this order,
failing which the concerned Sessions Court shall issue non-bailable
warrant to effect the arrest of the appellants original accused.
Bail
bonds, if any, shall stands cancelled. R & P to be sent back to
the trial Court, forthwith.
(Z.K.SAIYED,
J.)
ynvyas
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