Gopalbhai Tundaram Thaker vs State of Gujarat

Z.K. Saiyed, J.—Both the above Appeals are arising out of the one and similar judgment and since the oral as well as documentary evidence are the same, they are decided and disposed of together by this common Judgment.

Criminal Appeal No. 423 of 2000 has been filed by the Appellant - (original accused), u/s 374 of Cr. P.C., challenging the judgment and order dated 28th March, 2000, passed by the learned 3rd Additional Sessions Judge, Vadodara in Sessions Case No. 6 of 1997, whereby the learned Additional City Sessions Judge, has held the Appellant - accused guilty (i) for the offence under Sections 304 of I.P. Code and awarded sentence to the Appellant - accused to suffer rigorous imprisonment for 5 (five) years and to pay a fine of Rs. 1000/-, and in default of payment of fine the Appellant - accused was directed to undergo R.I. for further one month and (ii) for the offences u/s 504 of I.P. Code and awarded sentence to the Appellant - accused to suffer rigorous imprisonment for 6 (six) months. The learned Judge has ordered that all the substantive sentences shall run concurrently.

Criminal Appeal No. 389 of 2000 has been filed by the Appellant - State of Gujarat, u/s 377 of Cr. P.C., for enhancement of sentence awarded by the learned 3rd Additional Sessions Judge, Vadodara, in Sessions Case No. 6 of 1997, vide judgment and order dated 28th March, 2000.

The facts of the prosecution case are that the complainant - deceased was running a tea lorry near Vadodara S.T. Depot. It is alleged that on 9.9.1995 at about 10 O''clock in the morning the complainant had gone to Rajasthan Hotel for taking snacks. It is alleged that there the complainant had asked the Appellant - accused for a glass of water, thereupon the Appellant told him that there is a self service and he should require to take water himself. The complainant asked the Appellant that whatever is required to be served by the server and not by the customer and thereupon the Appellant abused the complainant. It is alleged that complainant asked the Appellant not to abuse, the Appellant took out "Jharo" from the edible oil which was in a Kadai (big utensil for preparing the snacks) and tried to beat the complainant. The complainant caught hold the Appellant, however, the Appellant gave a push to the complainant and, therefore, the complaint fell on the Kadai in which heat edible oil was lying there, and sustained burns injury on various parts of the body. The wife of the complainant rushed to the place of occurrence and shifted the complainant to the S.S.G. Hospital, Vadodara. There the complaint was lodged against the accused and as the injuries received by the complainant was serious in nature, his dying declaration was recorded. Unfortunately, thereafter, the complainant succumbed to the injuries. The Police has registered the complaint vide CR No. 292 of 1995 against the accused. Thereafter, the investigation was carried out and the accused was arrested by the Police. Thereafter, after completion of investigation, the police filed charge-sheet against the accused for the offence u/s 302 of I.P. Code before the Court of learned Chief Judicial Magistrate, Vadodara. As the offence was exclusively triable by a Court of Sessions, the learned Magistrate committed the said case to the Court of Sessions at Vadodara.

Thereafter, the charge against the accused was framed. The accused pleaded not guilty to the charge and claimed to be tried.

To prove the case against the accused, the prosecution has examined the witnesses and also produced and relied upon the documentary evidence. Thereafter, further statement of the accused was recorded u/s 313 Cr. P.C. in which the accused has denied the charges alleged against him. After hearing the parties, the learned Judge has held the accused guilty for the offence under s 304, Part-II and 504 of I.P. Code and awarded sentence as narrated above.

Being aggrieved by the aforesaid judgment and order of conviction rendered by the learned Additional Sessions Judge, Vadodara the original accused has preferred Criminal Appeal No. 423 of 2000 and the State has preferred Criminal Appeal No. 389 of 2000 for enhancement of sentence, awarded by the learned Judge.

Heard learned Advocate Mr. B.S. Patel, learned Advocate for the Appellant - original accused and learned A.P.P. Mr. H.L. Jani, appearing on behalf of the State.

Learned Advocate, appearing on behalf of the Appellant - accused, has contended that the Appellant - accused has not committed any offence as alleged against him in the charge. He has contended that without properly appreciating the evidence in its true perspective and without considering the defence raised by the accused, the trial Court has booked the accused just for the sake of conviction. He has contended that the prosecution has not produced any documentary evidence to establish the case against the Appellant - accused. He has contended that there are material contradictions in the evidence of witnesses. He has contended that the witnesses have not supported the case of prosecution. He has contended that the place of offence was a slippery place and because of that the deceased could not control the balance himself and he fail into the boiling oil. He has contended that looking to the evidence produced on record, the prosecution has failed to establish its case beyond reasonable doubt that the accused has committed the offences as alleged against him. Learned Advocate has not much argued the matter on merit and contended that looking to the facts of the case, the sentence awarded by the learned Judge is also very harsh and some lenient view may be taken towards the Appellant.

Learned APP has supported the judgment and order passed by the learned Judge and contended that looking to the seriousness of offence, no interference of this Court is called for. He has contended that looking to the facts and evidence on record, the Appellant - accused should have been held guilty for the offence u/s 302 of I.P. Code, however, the learned Judge has held the accused guilty for the offence u/s 304 Part-II of I.P. Code. Looking to the facts of the case, no interference is required to be called for.

I have gone through the judgment and order passed by the learned Sessions Judge and also gone through the documents produced before me. I have also considered the submissions made by the learned Advocates for the parties. I have gone through the record and proceedings of the case. I have also gone through the evidence of the prosecution witnesses and other material evidence. I have also considered the judgment of the trial Court. From the evidence on record, it clearly appears that the learned Judge has not committed any error in holding the Appellant - accused guilty of the offences u/s 304 Part-II of I.P. Code. However, looking to the peculiar facts of the case, in my opinion, the sentence awarded by the learned Judge is very harsh. The learned Advocate appearing on behalf of the Appellant has also contended that the Appellant - accused is poor person and is a bread-winner of the family and, therefore, some leniency may be shown towards the Appellant. I am, therefore, of the opinion that, while maintaining rest of the order, if the sentence awarded by the learned Judge is reduced to an extent of 2-1/2 years, instead of 5 (five) years, the same would serve the ends of justice.

In view of above, Criminal Appeal No. 423 of 2000, filed by the original accused, is partly allowed. The judgment and order of conviction dated 28.3.2000 passed by learned Additional Sessions Judge, Vadodara, in Sessions Case No. 06 of 1997 is hereby confirmed. However, the sentence awarded by the learned Additional Sessions Judge, vide impugned judgment, holding the Appellant - accused guilty for the offences u/s 304, Part-II of I.P. Code, is modified and reduced to an extent of 2-1/2 years (two years and six months) R.I., instead of 5 (five) years R.I. Rest of the judgment and order passed by the learned Sessions Judge is confirmed. Bail Bonds, if any, shall stand discharged. The Appellant - accused is directed to surrender before the Jail Authority to undergo the remaining sentence, if any, within a period of six weeks from the date of this order, failing which the trial Court shall issue non-bailable warrant shall against the Appellant accused. Record & Proceedings be sent back to the trial Court immediately.

For the reasons recorded above, Criminal Appeal No. 389 of 2000, filed by the State of Gujarat, for enhancement of sentence, vide the judgment and order dated 28.3.2000 passed by the learned Additional Sessions Judge, Vadodara, in Sessions Case No. 6 of 1997, is dismissed.