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CR.A/158/1996 5/ 5 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
APPEAL No. 158 of 1996
For
Approval and Signature:
HONOURABLE
MR.JUSTICE Z.K.SAIYED
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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 ?
=========================================
YUNUSKHAN
LALKHAN SUMRA - Appellant(s)
Versus
STATE
OF GUJARAT - Opponent(s)
=========================================
Appearance :
MS
TANUJA N KACHCHHI for the Appellant.
Mr. A.J.Desai, Additional
PUBLIC PROSECUTOR for the respondent.
=========================================
CORAM
:
HONOURABLE
MR.JUSTICE Z.K.SAIYED
Date
: 05/03/2010
ORAL
JUDGMENT
The
appellant-original accused has filed the present appeal against
judgment and order of conviction and sentence dated 21st December,
1995 in Sessions Case No. 43 of 1995 passed by the learned Additional
Sessions Judge, Sabarkantha at Himmatnagar, by which the
appellant-accused has been sentenced to undergo rigorous imprisonment
for two months and pay a fine of Rs. 50/-, in default, simple
imprisonment of 15 days for the offence punishable under section 186
of the Indian Penal Code; rigorous imprisonment for six months and
pay a fine of Rs.50/-, in default, simple imprisonment for 15 days
for the offence punishable under section 353 of the Indian Penal Code
and rigorous imprisonment for one year and pay a fine of Rs. 100/-,
in default, simple imprisonment for one month for the offence
punishable under section 506(3) of the Indian Penal Code. All the
sentences are ordered to run concurrently.
2. Brief
facts of the prosecution case are that on 16.4.1993 between 6.00 a.m.
to 9.00 a.m.,the complainant Gemarsinh Sardarsinh, who was serving in
Border Homeguard was on duty near Bhakharia Octroi Naka. At that
time, at about 8.15. a.m., the appellant-accused had gone to that
place and with a view to obstruct the complainant from discharging
his duties as a public servant, had told the complainant ” I am
Yunus don and am a goon of Prantij and I have driven away many
policemen.” At that time, the complainant had asked the accused
to go away from there and therefore, the accused had got excited and
had caught hold of the complainant and had assaulted him. With a view
to save himself, the complainant had given a stick blow to the
accused and therefore, the accused had gone away from there saying I
will see how you are serving on this point and I will kill you today
itself. Therefore, a complaint in this regard came to be lodged with
Prantij Police station. After the charge-sheet, the case came to be
committed to the Court of Sessions, Sabarkantha at Himmatnagar.
3. Originally,
charge was framed against the appellant-accused at exh. 14 for the
offences punishable under sections 353, 186 and 506(2) of the Indian
Penal Code and then the matter was placed before the trial court for
recording evidence.
4. The
prosecution has led oral as well as documentary evidence in support
of the prosecution case. After completion of the trial court, the
learned Additional Sessions Judge, Sabarkantha at Himmatnagar has
convicted and sentenced the appellant-accused as narrated above.
5. Heard
learned advocate Ms. Tanuja Kachhi for the appellant. She has read
oral as well as documentary evidence of the prosecution. She has
contended that the learned trial Judge has framed the charge under
section 506(2) of the Indian Penal Code against the
appellant-accused. Looking to the definition of section 506(2) of the
Indian Penal Code, any kind of weapon was required with the
appellant-accused. In the present case, as per the prosecution case,
the witness was simply verbally threatened by the appellant-accused
and so section 506(2) of the Code cannot be attracted in the present
case. She has also read the oral evidence of star witness of the
prosecution and she has vehemently argued that the learned trial
Judge has not considered the case of the defence and has wrongly
convicted the present appellant-accused. During her arguments, she
has also made a statement that she is arguing this appeal only on the
quantum of sentence and she is not arguing this appeal on merits. But
she has vehemently argued that all the witnesses who were examined by
the prosecution were interested witnesses and their evidence is not
corroborative with other evidence led by the prosecution and hence,
less sentence is required to be imposed upon the appellant accused.
6. I
have also heard learned Additional Public Prosecutor Mr. A.J.Desai
for the respondent State. He has read the charge-sheet as well as the
evidence and vehemently argued that the present appellant-accused is
a headstrong person and a notorious character of the area.
Originally, an offence under TADA was shown in the charge-sheet, but
later on it was deleted. Two cases have been filed against the
appellant-accused. Thus, he has supported the judgment of conviction
and sentence of the trial Court. He has also opposed the request
made by the learned advocate for the appellant to reduce sentence and
has requested to maintain the judgment of the lower court and dismiss
the appeal.
7. Heard
learned advocate for both the sides. I have also perused oral as well
as documentary evidence led by the prosecution. I have gone through
the judgment of the trial court. No doubt, the prosecution has proved
its case against the appellant-accused beyond reasonable doubt. But
looking to the quantum of punishment, I am of the opinion that this
is not a fit punishment in connection with the charges which are
framed against the present appellant-accused. I am in full agreement
with the suggestion and request made by the learned advocate for the
appellant. Therefore, the sentence imposed upon the appellant-accused
is required to be reduced.
8. In
view of the above discussion, the Appeal is partly allowed.
The
appellant-original accused Yunuskhan Lalkhan Sumra is hereby ordered
to undergo rigorous imprisonment for one month and pay a fine of Rs.
50/-, in default, simple imprisonment of 15 days for the offence
punishable under section 186 of the Indian Penal Code, in place of
the sentence awarded by the learned Additional Sessions Judge,
Sabarkantha at Himmatnagar for the offence under this section.
The
appellant-original accused Yunuskhan Lalkhan Sumra is hereby ordered
to undergo rigorous imprisonment for five months and pay a fine of
Rs. 50/-, in default, simple imprisonment for 15 days for the offence
punishable under section 353 of the Indian Penal Code, in place of
the sentence awarded by the learned Additional Sessions Judge,
Sabarkantha at Himmatnagar for the offence under this section.
The
appellant-original accused Yunuskhan Lalkhan Sumra is hereby ordered
to undergo rigorous imprisonment of six months and pay a fine of Rs.
100/-, in default, simple imprisonment of one month for the offence
punishable under section 506(2) of the Indian Penal Code in place of
the sentence awarded by the learned Additional Sessions Judge,
Sabarkantha at Himmatnagar.
All
the sentences shall run concurrently. Sentence already undergone
shall be given set off.
The
judgment and order dated 21st December, 1995 in Sessions Case No. 43
of 1995 delivered by the learned Additional Sessions Judge,
Sabarkantha at Himmatnagar stands modified accordingly. The
appellant-original accused is ordered to surrender judicial custody
within six weeks from today.
(Z.K.Saiyed,J)
***vcdarji
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