Gujarat High Court Case Information System
Print
CR.A/1173/2006 1/ 5 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
APPEAL No. 1173 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 ?
=========================================
NAGARIYA
PUNIYABHAI BHABHOR - Appellant(s)
Versus
STATE
OF GUJARAT - Opponent(s)
=========================================
Appearance
:
MR MA
KHARADI for
Appellant(s) : 1,
MR HH PARIKH, LD. ADDL. PUBLIC PROSECUTOR for
Opponent(s) : 1,
=========================================
CORAM
:
HONOURABLE
MR.JUSTICE Z.K.SAIYED
Date
: 21/09/2010
ORAL
JUDGMENT
The
appellant has preferred this Appeal under Section 374(2) of the Code
of Criminal Procedure, 1973 against the judgment and order of
conviction and sentence dated 29th August 2005 passed by
the learned Presiding Officer, Fast Track Court No.2, Dahod, in
Sessions Case No.12 of 2004, whereby the learned Presiding
Officer has convicted the appellant-accused under Sections 394, 397
and 114 of the Indian Penal Code.
The
case of the prosecution is that on 06th December 1996 at
about 08:30 p.m. the appellant with the help of another accused
caused injuries to the complainant with sickle and caused injury to
the witness and looted ornament worth Rs.10,400/-. Therefore, a
complaint to the said effect was filed against the present appellant
on 06th December 1996 with Limkheda Police Station.
Thereafter, after investigation, charge-sheet was filed against the
appellant before the learned Presiding Officer, Fast Track Court
No.2, Dahod.
Thereafter
the trial was conducted before the learned Judge. To prove the case
of the prosecution, prosecution has produced oral as well as
documentary evidence.
After
hearing both the sides, the learned Presiding Officer, Fast Track
Court No.2, Dahod, by his judgment and order of conviction dated
29th
August 2005 passed in Sessions Case No.12 of 2004 was pleased to
convict the the present appellant for the offence punishable under
Sections 394, 397 and 114 of the Indian Penal Code and ordered to
suffer rigorous imprisonment for the period of seven years and fine
of Rs.1,500/-, and in default of payment of fine, the appellant is
ordered to undergo simple imprisonment for a further period of three
months. However, it is clarified that all the substantial sentences
shall run concurrently.
Being
aggrieved by and dissatisfied with the said judgment and order of
conviction dated 29th
August 2005 passed by the learned Presiding Officer, Fast Track
Court No.2, Dahod, in Sessions Case No.12 of 2004, the appellant
hereinabove has preferred the present Criminal Appeal before this
Hon’ble Court.
I
have heard Mr.M.A. Kharadi, learned counsel for the appellant and
Mr.H.H. Parikh, learned Additional Public Prosecutor, appearing on
behalf of the respondent-State. I have also gone through the papers
produced before me and the judgment and order of conviction passed
by the trial Court.
Mr.Kharadi
has taken me through the evidence of prosecution witnesses and the
documentary evidence and submitted that from the above evidence it
is established that the prosecution has failed to prove its case
beyond reasonable doubt. He has contended that the order of
conviction is illegal, improper and unjust. He has contended that
the learned Judge has committed grave error in believing the
prosecution story that the accused was caught on the spot. He has
further contended that he is arguing this matter only for the
purpose of quantum of punishment and not on merits. He has also
contended that looking to the ratio of conviction, it is very harsh
and is required to be re-considered and hence, contended that the
judgment and order of conviction is required to be set aside.
Heard
Mr.H.H. Parikh, learned Additional Public Prosecutor
for the respondent-State. He has supported the judgment and order of
conviction passed by the learned Presiding Officer. He has contended
that looking to the charge framed against the appellant, order
passed by the learned Judge is 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 trial Court. I have also perused the oral as
well as documentary evidence led before the trial Court and also
considered the submissions made by learned counsel for the parties.
Looking
to the facts and circumstances of the case and looking to the fact
that the appellant-convict was in custody for almost five and half
years, if the sentence already undergone by the appellant-convict be
treated as sentence, the same would meet with the ends of justice.
Hence,
the present appeal is partly allowed. The judgment and order of
conviction dated 29th
August 2005 passed by the learned Presiding Officer, Fast Track
Court No.2, Dahod, in Sessions Case No.12 of 2004, is hereby
confirmed. However, the judgment and order of sentence dated 29th
August 2005 passed by the learned Presiding Officer, Fast Track
Court No.2, Dahod is hereby reduced and modified to the extent of
sentence which the
appellant has already undergone and the appellant shall be set at
liberty forthwith if he is not required to be detained in any other
case. The rest of the judgment and order dated 29th
August 2005 shall remain unaltered. Bail bond, if any, shall stands
discharged. Record and Proceedings, if any, to be sent back to the
trial Court, forthwith.
(Z.
K. Saiyed, J)
Anup
Top