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CR.A/636/2006 8/ 8 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
APPEAL No. 636 of 2006
With
CRIMINAL
APPEAL No. 227 of 2006
For
Approval and Signature:
HONOURABLE
MR.JUSTICE KS JHAVERI
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 ?
=========================================================
(CRIMINAL
APPEAL NO. 636 OF 2006)
BIPINBHAI
DESAIBHAI PATEL – Appellant(s)
Versus
THE
STATE OF GUJARAT & 1 – Opponent(s)
=========================================================
Appearance
:
HL
PATEL ADVOCATES for
Appellant(s) : 1,
MR HL JANI, APP for Opponent(s) : 1,
=====================================================================
(CRIMINAL
APPEAL NO. 227 OF 2006)
MANUBHAI
RAVJIBHAI PATEL
VERSUS
THE
STATE OF GUJARAT
Appearsnce
:
MR
SUNIL JOSHI for APPELLANT(S) : 1
MR
HL JANI, APP for Opponents
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE KS JHAVERI
and
HONOURABLE
MR.JUSTICE Z.K.SAIYED
Date
: 12/05/2009
ORAL
COMMON JUDGMENT
(Per
: HONOURABLE MR.JUSTICE KS JHAVERI)
1.0 Both
the above Appeals arise out from the cross cases filed by the parties
in connection with one and common incident and, therefore, both the
Appeals are heard and disposed of by this common Judgment. Appellant
Manubhai Rayjibhai of Criminal Appeal No.227 of 2006 is the original
accused of Sessions Case No.177 of 2005, whereas appellant Bipinbhai
Desaibhai Patel of Criminal Appeal No.636 of 2006 is the original
accused No.1 in Sessions Case No.124 of 2005.
2.0 Criminal
Appeal No. 636 of 2006, under section 378 of the Code of Criminal
Procedure, 1973, is directed against the judgment and order of
conviction dated 21.1.2006 passed in Sessions Case No. 124 of 2005 by
the learned Additional Sessions Judge, 5th Fast Track
Court, Panchmahals at Godhra, sentencing the appellant accused to
under-go 10 years’ R.I. and fine of Rs.2,500/- i/d to undergo further
imprisonment of one year for the offence under Section 307 I.P. Code
and to under-go imprisonment of one year and fine of Rs.500/- i/d to
under-go further imprisonment of 3 months for the offence punishable
under Section 135 of Bombay Police Act.
2.1 Criminal
Appeal No. 227 of 2006, under section 378 of the Code of Criminal
Procedure, 1973, is directed against the judgment and order of
conviction dated 21.1.2006 passed in Sessions Case No. 177 of 2005 by
the learned Additional Sessions Judge, 5th Fast Track
Court, Panchmahals at Godhra, sentencing the appellant accused to
under-go 05 years’ R.I. and fine of Rs.1,500/- i/d to undergo further
imprisonment of 6 months for the offence under Section 326 I.P. Code,
to under-go three years imprisonment and fine of Rs.1000/- i/d to
under-go further imprisonment of three months for the offence
punishable under Section 324 of I.P. Code; and three month’s
imprisonment and fine Bombay Police Act, to under-go three months’
imprisonment and fine of Rs.500/- i/d to undergo 15 days’
imprisonment for the offence under Section 504 I.P. Code and to
under-go one year’s imprisonment and fine of Rs.600/- i/d to under-go
imprisonment of three months for the offence under Section 135 of the
Bombay Police Act.
3.0 The
brief facts of the prosecution case are as under:
3.1 In
Criminal Appeal No. 636 of 2006, it is the case of the prosecution
that the complainant filed complaint alleging that she along with her
husband had gone to agricultural land from village Morva and the
accused No.2 Patel Desaibhai Jethabhai was admonished by her husband
as to why the name of her daughter was referred to in an application,
when she had come there as guest for a day. It is alleged that there
was altercation and free fight and she had gone to temple to save her
life. It is also alleged that the appellant inflicted Dhariya blow
and, therefore, right hand of her husband was cut down. The other
accused had also beaten her husband. Thereupon the complainant had
gone to Morva Police station and lodged complaint. The husband of the
complainant was shifted to Government Hospital at Shahera in a tempo
and thereafter he was shifted to Civil Hospital, Godhra.
3.2 The
appellant of Criminal Appeal No.227 of 2006 has also filed cross
complaint to the effect that the house of present appellant is
adjoining to that of the complainant and for last 1 year or so, there
was dispute between the complainant and the present appellant with
regard to the land of backyard i.e. Vada land and complaints have
been filed by them against each other. It is alleged that the day on
which the incident took place the complainant, his father, his sister
and son Sunil had gone to their field for yielding crop. It has been
further alleged that at about 11.00 hours in the morning, while they
were returning to their house, the present appellant holding Dhariya
in his hands and his sister Bharti had met them and asked them as to
why they have made an application against them. It is alleged that
father of the complainant asked them to stop giving abuses with the
result that the appellant got excited and alleged to have given a
blow of Dharia on elbow of left hand of the father of the complainant
and thereupon many persons from the nearby assembled there. It is
alleged that father of the complainant has also got angry and
attempted to give blow to the appellant, but the appellant alleged to
have raised his hand to ward off the blow with the result that hand
of the appellant was amputed and another hand was amputed from the
wrist. Therefore, the complaint was lodged before the police.
4.0 On
the basis of complainant, the Investigating Officer had followed the
necessary procedure and conducted the investigation. Thereafter, the
statement of witnesses were recorded, necessary panchnamas were
drawn and the accused were arrested . After thorough investigation,
as there was sufficient evidence connecting the respondent with the
alleged offence, charge-sheet was filed in both the cases against the
accused before the Court of learned Judicial Magistrate First Class,
Shehra, for the offence alleged against the accused. As the offence
alleged against the appellants in both the cases were exclusively
triable by a Court of Sessions, the learned Judicial Magistrate First
Class, Shehra, committed the case to the Court of Sessions, which
were numbered as Sessions Case No. 124 of 2005 and 177 of 2005
respectively.
4.1 Thereafter
the charge was framed against the accused respondents in both the
above Sessions Cases by the learned Additional Sessions Judge &
Presiding Officer, Fast Track Court No.5, Panchmahals at Godhra. The
accused pleaded not guilty to the charge and claimed to be tried.
Thereafter, the trial was conducted against the accused
respondents.
5.0 To
prove the case against the appellants accused in both the cases,
the prosecution has examined various witnesses and relied upon number
of documents in each case.
5.1 Thereafter,
the statement of the accused under Section 313 Cr. P. C. was recorded
in which also the accused in both the cases have denied the charges
leveled against them and stated that they have been falsely involved
in the commission of offence. After considering the oral as well as
documentary evidence and after hearing arguments on behalf of
prosecution and the defence, the learned Additional Sessions Judge &
Presiding Officer, Fast Track Court No.5, Panchnamahals at Godhra,
has convicted and awarded sentence as narrated herein above by
Judgment and order dated 21.1.2006.
6.0 Being
aggrieved by and dissatisfied with the Judgment and Order dated
21.1.2006 passed by the learned Additional Sessions Judge &
Presiding Officer, Fast Track Court No.5, Panchmahals at Godhra, in
Sessions Cases No. 124 of 2005 and 177 of 2005, the accused
appellants have filed both these Appeals.
7.0 During
the course of hearing both the learned counsel appearing on behalf of
their respective appellant in above Criminal Appeals have placed on
record the consent terms arrived at between both the parties and
contended that both the parties have compromised the matter out-side
the Court. Both the parties have signed the compromise. In the said
compromise it is stated that both the parties are of a same community
and related to each other and residing in the same village. They are
neighbourers. The disputes with regard to open Vada land was going on
since long. The quarrel took place all of a sudden. Both the
appellants accused at present are in Vadodara Central Jail. Now
they have realised the true facts and considering their future, they
have arrived at amicable settlement. They have forgotten enmity,
grudge, vengence against each other. Due to conviction and sentence
their family members have become helpless and without shelter. They
have decided to live peacefully henceforth.
8.0 Learned
Counsel for the appellants have also submitted that appellants
accused are in jail. However, while proving the case before the trial
Court, a contention has been raised that the prosecution has not
explained the injury and in view of decision of Apex Court in the
case of LAKSHMI SINGH & ORS. V/S. STATE OF BIHAR,
reported in (1976) 4 SCC 394, since the prosecution has
not explained the injury, the case against the accused in both the
above cases are not proved beyond reasonable doubt and therefore the
Judgment and order passed by the trial Court may be quashed and set
aside and the accused may be set at liberty forthwith.
8.1 We
have also heard learned APP Mr. Jani on behalf of respondent
State. We have also gone through the papers produced before us.
9.0 In
view of above, both the appellants of above Criminal Appeals have
compromised the matters and to that effect they have filed compromise
purshis. Looking to the compromise purshis, as also the contention of
the learned Counsel for the appellant as to non-explanation of injury
by the prosecution before the trial Court, we are of the opinion that
interest of justice would be served if the Judgment and order passed
by the trial Court is quashed and set aside, on this count alone
especially parties when have settled the dispute amicably.
10.0 In
view of above both the Appeals are allowed. The Judgment and order
dated 21.1.2006 passed in Sessions Case Nos.124 of 2005 and 177 of
2005 by the learned Additional Sessions Judge, Fast Track Court No.5,
Panchmahals at Godhra, are hereby quashed and set aside. The
appellants accused in both the above Appeals are ordered to be
set at liberty forthwith if not required in any other case. Fine, if
paid be refunded.
R
& P to be sent back to the trial Court.
(K.S.JHAVERI,J.)
(Z.K.SAIYED,
J.)
sas
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