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CR.A/33/2008 3/ 6 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
APPEAL No. 33 of 2008
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 ?
=========================================================
BHUPATBHAI
@ UKO BABUBHAI CHU. KOLI - Appellant(s)
Versus
STATE
OF GUJARAT & 1 - Opponent(s)
=========================================================
Appearance
:
MR
ANIL N MEHTA for
Appellant(s) : 1,MR KARTIK V PANDYA for Appellant(s) : 1,
MR KP
RAVAL Ld. APP for Opponent(s) :
1,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE Z.K.SAIYED
Date
: 11/01/2011
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 14.9.2007 passed by the learned Addl.
Sessions Judge, Dhrangadhra in Sessions Case No. 26/2007, whereby,
the learned Judge has convicted the appellant under sec. 363 of IPC
and sentenced to undergo R/I for 5 years and to pay a fine of Rs.
2000/-, in default, to undergo further R/I for six months. The
appellant is also convicted under sec. 366(A) of IPC and sentenced to
undergo R/I for a period of seven years and to pay a fine of Rs
3000/- in default, to undergo further R/I for six months, which is
impugned in this appeal.
2. The
brief facts of the prosecution case is as under:
3. That,
on 22.2.2007, the appellant-accused has been arrested by the Vankaner
Railway Police and when the police has enquired from the victim, the
victim informed the police about the incident and she has stated
that the accused has kidnapped her for doing bad work with her and,
therefore, she shouted and passengers gathered in the train and the
accused has been handed over to the Railway Police.
4. Therefore,
a complaint came to be filed by the complainant before the Vankaner
Police Station. The panchnama of the clothes put on by the victim
was prepared in the presence of panch witness and statements of the
victim as well as witnesses were recorded and on completion of the
investigation, charge-sheet was filed in the Court of learned Addl.
Chief Judicial Magistrate, Vankaner. 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. 26/2007.
5. Thereafter,
the charge was framed at Ex. 5 against the appellant. The appellant
accused has pleaded not guilty and claimed to be tried.
6. In
order to bring the home the charge levelled against the appellant-
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
appellant-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 Judge vide impugned judgment and order
dated 14.9.2007 held the appellant accused guilty to the charge
levelled against him under sec. 363 and 366(A) of IPC and convicted
and sentenced the appellant 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,
Dhrangadhra, the present appellant has preferred this appeal.
10. Heard
Mr. Mehta learned advocate for the appellant and Mr KP Raval learned
APP for the respondent-State.
11. Mr.
Mehta learned advocate for the appellant has fairly admitted that he
is only arguing the matter on the point of quantum of punishment and
not arguing the matter on merits. He has also contended that looking
to the age of the present appellant, 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, Mr Mehta has submitted that
the appellant has already undergone the sentence of more than four
years. He has further contended that the appellant 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 by the
learned Judge may be reduced to the sentence as already undergone by
the appellant-accused.
12. On
the otherside, learned APP Mr KP Raval 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.
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 when sufficient
period of sentence is already undergone by the present appellant,
then, I am of the opinion that looking to the poverty of the
appellant, this is a fit case to consider the submissions of the
learned advocate for the appellant. In that view of the matter, when
the learned advocate Mr Mehta appearing for the appellant is not
arguing the matter on merits but arguing the matter on the point of
quantum of punishment, 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 14.9.2007 passed in Sessions Case No.
26/2007 by the learned Addl. Sessions Judge, Dhrangadhra convicting
the appellant-accused under sec. 363 and 366 of IPC is hereby
confirmed. However, the order of sentence sentencing the
appellant-accused to undergo R/I for 5 years for the offence under
sec. 363 of IPC and the sentence sentencing the appellant-accused to
undergo R/I for 7 years for the offence under sec. 366 of IPC, is
hereby modified to the extent that instead the appellant-accused is
hereby sentenced to undergo the period of sentence already
undergone. Rest of the impugned judgment and order is confirmed. The
appellant is ordered to be set at liberty forthwith, if he is not
required in any other case.
(Z.K.
SAIYED, J)
mandora/
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