Gujarat High Court Case Information System
Print
CR.A/1614/2010 8/ 8 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
APPEAL No. 1614 of 2010
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 ?
=========================================
FARUKBHAI
ALLARAKHABHAI MIYANA - Appellant(s)
Versus
STATE
OF GUJARAT - Opponent(s)
=========================================
Appearance :
MR
ASHISH M DAGLI for
Appellant(s) : 1,
MR HL JANI, LD. ADDL. PUBLIC PROSECUTOR for
Opponent(s) : 1,
=========================================
CORAM
:
HONOURABLE
MR.JUSTICE Z.K.SAIYED
Date
: 21/06/2011
ORAL
JUDGMENT
By
way of present appeal, filed under Section 374(2) of the Code of
Criminal Procedure, 1973, the appellant has challenged the judgment
and order of conviction and sentence dated 08th
September, 2010 passed by the learned Sessions Judge, Surendranagar,
in Sessions Case No.22 of 2009, whereby the learned Judge has
convicted the appellant-accused under Sections 304 Part II of the
Indian Penal Code.
It
is the case of the prosecution that on 13th December,
2008 at about 11.30 hours the appellant-original accused No.1 had
entered into the complainant’s house armed with dharia and knife.
When the complainant asked the complainant about his identity, the
appellant replied that he has some work with her husband. Therefore,
the complainant opened the door. When the complainant seen the
appellant armed with dharia and knife, she immediately closed the
door. Thereafter, the appellant started knocking the door forcibly
and also had given a dharia blow on the door. It is the case of the
prosecution that therefore, the door stopper had broken out and door
opened. It is further the case of the prosecution that the appellant
has stepped into the complainant’s house and placed his hands on the
chest of the complainant. Therefore, the complainant was shouting
loudly and rushed towards his father’s house, who is residing
nearby. On hearing shout of the complainant, father of the
complainant came outside the house. It is the case of the
prosecution that at that point of time, father of the appellant,
i.e. original accused No.2, had given a stick blow to the father of
the complainant from reverse side and the present appellant had
given a dharia blow to the father of the complainant. Subsequently,
father of the complainant taken to the hospital and was given
primary treatment. It is further the case of the prosecution that on
08th January, 2009 father of the complainant died.
Therefore, a complaint to the said effect came to be registered with
Joravarnagar Police Station on 10th January, 2009, which
is registered as CR No.I-2 of 2009 for the offence punishable under
Sections 452, 354, 302 and 114 of the Indian Penal Code.
Thereafter,
as the case was exclusively triable by the Court of Sessions, the
same was transferred to the Sessions Court, Surendranagar.
Thereafter, charge was framed by the Sessions Court against the
accused persons.
Thereafter
the trial was conducted before the learned Judge. To prove the case
of the prosecution, prosecution has examined 13 witnesses and also
produced documentary evidence on record.
Thereafter,
on completion of evidence by prosecution, statement of accused
persons under Section 313 of the Code of Criminal Procedure, 1973
came to be recorded wherein the accused persons have denied the case
filed against them and submitted that a false case is filed against
them.
After
hearing both the sides, the learned Sessions Judge, Surendranagar by
his order dated 08th
September, 2010 passed in Sessions Case No.22 of 2009, convicted the
appellant-original accused No.1 for the offence punishable under
Section 304 Part II as stated above and acquitted the original
accused No.2 of the charges levelled against him.
Being
aggrieved by and dissatisfied with the said judgment and order of
conviction and sentence dated 08th
September, 2010 passed by the learned Sessions Judge, Surendranagar,
the appellant hereinabove has preferred the present Criminal Appeal
before this Court.
Heard
Mr.Ashish Dagli, learned counsel for the appellant and Mr.H.L. Jani,
learned Additional Public Prosecutor for the respondent-State.
Mr.Dagli
has read the charge at Exhibit 5 and contended that the present
appellant is convicted for the offence punishable under Section 304
Part II of the Indian Penal Code and is acquitted from the offence
punishable under Sections 452, 376 and 302 of the Indian Penal Code.
He has also contended that the prosecution has failed to prove the
case beyond reasonable doubt against the appellant. Mr.Dagli has
read the Jail Report produced on record by Mr.H.L. Jani, learned
Additional Public Prosecutor and contended that the appellant has
completed more than half sentence. He has further contended that
looking to the facts of the case as well as evidence produced on
record, conviction imposed upon the appellant is very harsh. He has
also contended that the appellant is behind the bars for sufficient
period. He has also contended that he is not arguing the matter on
merits, but arguing the matter only for the purpose of quantum. He
has also contended that the appellant is a young man and is the only
bread winner for his family and therefore, lenient view is required
to be taken in the matter. He, therefore, contended that therefore,
the appellant is required to be set at liberty by reducing the
sentence imposed upon him.
Heard
Mr.H.L. Jani, learned Additional Public Prosecutor for
the respondent-State. He has supported the judgment and order of
conviction passed by the learned Judge. He has contended that
looking to the charge framed against the appellant, order passed by
the learned Judge is absolutely just and proper. He has also read
the documentary evidence produced on record and contended that
learned
Judge has not committed any error in convicting the
appellant-accused. He, therefore, contended that the present appeal
is required to be dismissed.
I
have
gone through papers produced before me and the judgment and order
passed by the learned Judge. I have also perused the oral as well as
documentary evidence led before the learned Judge and also
considered the submissions made by learned counsel for the parties.
It
appears from the papers that the appellant was acquitted from the
offence punishable under Section 302 of the Indian Penal Code.
Looking to the facts and circumstances of the case I am of the
opinion that conviction imposed upon the appellant is very harsh. I
am of the opinion that when the appellant has already undergone half
of the sentence, if the sentence already undergone by the
appellant-convict may be treated as sentence, same would meet with
the ends of justice. Even looking to the submissions advanced by the
learned counsel for the appellant and circumstances of the case,
sentence imposed upon the appellant is required to be reduced and
modified on the ground of sympathy also.
Hence,
in view of the foregoing reasons, present appeal is partly allowed.
The
Judgment and order of conviction dated 08th
September, 2010 passed by the learned Sessions Judge, Surendranagar,
in Sessions Case No.22 of 2009, is hereby confirmed. However, the
judgment and order of sentence dated 08th
September, 2010 passed by the learned Sessions Judge, Surendranagar,
in Sessions Case No.22 of 2009 is hereby reduced and modified to the
extent of sentence which the appellant-accused has already
undergone. The appellant-accused is in jail. He is directed to set
at liberty forthwith, if not required in any other case. Rest of the
judgment and order dated 08th
September, 2010 shall
remain unaltered. Record and Proceedings, if any, be sent back to
the trial Court concerned, forthwith.
(Z.
K. Saiyed, J)
Anup
Top