Ajmalbhai Velabhai Rabari vs State Of Gujarat

The medical case papers of the appellant are ordered to be taken on record.

The aforesaid appeals have arisen out of the judgment and order passed by the learned Special Judge, Court No. 17, Ahmedabad City dated 28.3.2001 in Atrocity Criminal Case No. 51 of 2000. Therefore, both the appeals are heard together and decided by this common judgment.

The appellant -accused has preferred Criminal Appeal No. 293 of 2001 challenging the judgment and order of conviction dated 28.3.2001 passed by learned Special Judge, Court No. 17, Ahmedabad City in Atrocity Criminal Case No. 51 of 2000, imposing the sentence of 12 months, 6 months and fine of Rs. 500/- respectively for the offence punishable under Sections 452, 506(2), 341 of Indian Penal Code.

The State has preferred Criminal Appeal No. 472 of 2001 under Section 378(1)(3) of the Criminal Procedure Code, 1973 against the judgment and order of acquittal dated 28.3.2001 passed by the learned Special Judge, Ahmedabad City in Atrocity Criminal Case No.51 of 2000 for the offence punishable under Section 3 (1) (5) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act (for short "Atrocity Act").

The brief facts of these appeals are as under :- On 29.3.1998 the present accused and one Baldevbhai (now deceased) took forceful possession of the house of the niece of the complainant and the household articles of the niece of the complainant were thrown outside the house. That the complainant's brother and brother's wife both had expired. Two children were staying in the said house. The complainant was looking after them. The appellant -accused took possession of the house for recovery of money and also threatened to kill him and also uttered the derogatory words concerning the caste and community of the complainant. As a result, the complaint was lodged with the police.

Investigation was carried out and charge-sheet came to be filed against the accused in the Court of learned Magistrate. As the case was sessions triable, the same was committed to the Court of Sessions. Thereafter, charge came to be framed and explained to the accused, to which the accused pleaded not guilty and claimed to be tried.

5.1. In order to bring home the charges against the accused, prosecution has examined the witnesses and produced the documentary evidence.

5.2 Thereafter, after filing of closing pursis by the prosecution, further statements of accused person under Section 313 of the Code of Criminal Procedure, 1973 were recorded . The accused has denied the case of the prosecution and submitted that a false case is filed against him.

5.3 At the conclusion of the trial and after appreciating evidence on record, vide judgment and order dated 28.3.2001 , learned Special Judge, Court No. 17, Ahmedabad City in Atrocity Criminal Case No. 51 of 2000, convicted the appellant-accused for the offences punishable under Section 452, 506(2) and 341 of the IPC and acquitted the appellant for the offences punishable under Sections 3(1)(5) of the Atrocity Act. Being aggrieved by and dissatisfied with the said judgment and order , the appellant -original accused has preferred the appeal i.e Criminal Appeal No. 293 of 2001 and the State has preferred the appeal i.e. 472 of 2001.

When present appeal came to be admitted on 25.4.2001,. the Court had passed the following order:

"Admit qua sentence only and not on merits. For bail purpose, notice returnable on 30.4.2001. Service of notice is waived by Shri H.L.Jani, ld. APP for the State of Gujarat."

In view of the aforesaid factual position, the appeal preferred by the appellant -accused challenging the judgment and order of conviction is limited to the extent concerning the quantum only.

Heard Mr. Utpal Panchal, learned advocate for the appellant-accused, Mr. Jitendra Malkan for the respondent No.2 and Ms. Chetna Shah, learned APP for the respondent -State.

With regard to the quantum of sentence, Mr. Utpal Panchal, learned advocate for the appellant -accused points out that the incident occurred for snatching away the possession of the aforesaid premise of the present appellant. After occurrence of the incident the possession was already handed over in the year 1998 and today also the niece and nephew of the complainant are put into the possession of the said premise and they are enjoying the possession of the premise even today also. In view of the aforesaid factual position as well as additionally the present appellant -accused has crossed the age of 80 years and he is suffering from chronic lymphocytic Leukaemia and he has undergone treatment since 2012 and thereafter also he fall down from the bed due to which he received multiple fractures and he has also undergone treatment and he is in bedridden condition. Mr. Panchal, ld. Advocate for the Appellant has requested to alter the sentence by reducing the sentence to already undergone by the appellant.

On the other hand, Mr. Jitendra Malkan, learned advocate for the respondent No.2 and Ms. Chetna Shah, learned APP for the respondent -State have submitted that considering the physical condition as well as advance age of the appellant, it is not sufficient to reduce the sentence when the offence is already proved against the present appellant and strongly objected for reduction of sentence.

This Court minutely gone through the evidence on record. The entire order of conviction is solely rested on the solitary evidence of Laxmiben and no other evidence is available on record except the bare words of Laxmiben. The complainant's evidence is hearsay evidence on record. Indisputably, there is no physical injuries to any of the victim and as regard to using the derogatory words and threatened and evicting from the premise to the near relative of the complainant are alleged to have been taken place at the behest of the deceased -accused as well as present appellant. However, record and proceedings indicates that niece and nephew of the complainant were already put in possession of the said premise. Today also, indisputably, they are in possession of the said premise. In that view of the matter, the ends of justice would be met if the sentence would be reduced to extent of already undergone during the period of trial by the appellant.

On going through the record and proceedings, learned trial Court has assigned the ample reasons and recorded findings that the case was not made out so as to make it punishable under the Atrocity Act . Nothing is emerging out from the record and proceedings so as to believe that the present respondent has committed any offence constituting under the provision of Atrocity Act. Therefore, the appeal preferred by the State deserves dismissal being devoid of any merits.

In this view of the matter, this Court is of the considered opinion to sustain the conviction. Therefore, the appeal filed by the appellant-accused fails and stands dismissed. However, taking into consideration the peculiar facts and circumstances of the case, this Court is of the considered opinion to modify the sentence as inflicted by learned trial Court for the offences punishable under Sections 452, 506(2) and 341 of the Indian Penal Code and to the extent already undergone by the appellant. The appellant is directed to pay fine of Rs. 5000/-within a period of thirty days from today in default, the appellant to undergo sentence of one month simple imprisonment. The appeal preferred by the State also stands dismissed. The bail and bail bond stands cancelled.

Record and proceedings be sent back to the trial Court concerned forthwith.