Kamleshbhai Umeshbhai Dave vs State of Gujarat

Z.K. Saiyed, J.—The Appellants - original accused have filed this Appeal u/s 374 of Code of Criminal Procedure against the judgment and order of conviction and sentence dated 15.02.2008 passed by the learned Additional Sessions Judge & Presiding Officer, 1st Fast Track Court, Amreli, Camp at Rajula, in Sessions Case No. 75 of 2006, whereby the learned Additional Sessions Judge has held the Appellant - accused guilty (i) for the offence punishable u/s 328 of I.P. Code and sentenced him to suffer Imprisonment for 7 (seven) years and to pay a fine of Rs. 2,500/- i/d to undergo RI for six months and (ii) for the offence punishable u/s 307 of I.P. Code and sentenced him to suffer Imprisonment for 7 (seven) years and to pay a fine of Rs. 2,500/- i/d to undergo RI for six months. The learned Judge ordered all the sentences to run concurrently.

The brief facts of the case of prosecution are that one Maansurbhai Rambhai Wagh lodged a complaint that on 31.5.2006 at around 6.00 p.m. in the evening he received a phone call at the residence of one Bhikhabhai Daganbhai Wagh from Vasabhai, who informed him that when he had gone to the house of Kamleshbhai (accused herein) for his outstanding money, in turn Kamleshbhai poisoned the food stuff which was served to him. Therefore, the complainant requested by Vaasabhai to come as early as possible as he was not feeling well. The complainant, therefore, along with aatabhai Bholabhai and Dahurbhai Bhikhabhai reached the house of Kamleshbhai at rajula and show that Vaasabhai was sleeping and he in turn informed the complainant that he was not in a position to walk as he apprehended that he was poisoned in the food that was served to him at 13.00 noon. Therefore, Vaasabhai was made to sit in an Auto Rickshaw and taken to the Government Hospital at Rajula for treatment. There, primary treatment was administered to Vaasabhai and from there he was shifted to Government Dispensary at Mahuva for further treatment. Therefore, he was taken to private hospital at Bhavnagar where he was treated. Since Vaasabhai was unconscious the complainant informed the police. The reason for the occurrence of the incident, according to the complainant, was related to some money transaction whereby Vaasabhai had paid Rs. 30,000/- to Kamleshbhai to purchase iron scrap with an understanding that doing business in partnership, but, the said amount was not invested by Kamleshbhai and he had also not paid back the said amount and Vaasabhai had gone to collect the said amount at the house of Kamleshbhai he in turned poisoned him. Therefore, on the basis of said facts, a complaint has been registered with "A" Division Police Station, Bhavnagar City vide CR No. I - 81/06 for the offence under Sections 328 and 307 of I.P. Code.

The accused was arrested. Necessary investigation was carried out by the Police. The statements of the complainant and other witnesses were recorded. Thereafter, after completion of investigation the charge-sheet against the accused came to be submitted before the Court. As the offences were triable by the Court of Sessions, the learned Magistrate committed the case to the Court of Sessions. The learned Additional Sessions Judge framed the charge against the accused. The accused pleaded not guilty to the charge and claimed to be tried.

To prove the case against the accused, the prosecution has examined 11 witnesses and also relied upon documentary evidence and at the end of trial, after recording the statement of the accused u/s 313 Cr. P.C., and after hearing the arguments on behalf of the prosecution and the defence, the learned Additional Sessions Judge held the Appellant (original accused) guilty of the offences under Sections 328 & 307 of I.P. Code and awarded the sentence as naratted herein above. Being aggrieved by and dissatisfied with the aforesaid judgment and order of conviction and sentence the Appellants - accused has preferred this Appeal.

Heard learned advocate Mr. Bharda, appearing on behalf of the Appellant and learned APP Mr. Sejpal on behalf of the Respondent - State. I have gone through the judgment and order passed by the trial Court. I have also considered the documents produced on the record of the case.

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. She 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 is gross delay in lodging the complaint which clearly demonstrate malicious intention on the part of the victim and the complainant, who is his immediate relative and who had master minded the entire story and falsely implicated the Appellant. 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 offence as alleged against him. He has also contended that looking to the facts of the case, the sentence awarded by the learned Judge is also very harsh.

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 records the learned Judge has rightly held the accused guilty for the offence alleged against him and, therefore, no interference is called for.

I have gone through the judgment and order passed by the learned Additional 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 alleged against him. However, looking to the 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 innocent and is a bread-winner of the family and, therefore, some leniency may be shown towards the Appellant. It is stated at the bar that the Appellant - accused is in jail and he had already undergone the sentence of more than 2 years. I am, therefore, of the opinion that if the sentence awarded by the learned Judge is reduced to an extent of five years, the same would serve the ends of justice.

In view of above, the Appeal is partly allowed. The judgment and order of conviction and sentence dated 15.02.2008 passed by learned Additional Sessions Judge & Presiding officer, 1st Fast Track Court, Amreli, Camp at Rajula, in Sessions Case No. 75 of 2006 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 328 & 307 of I.P. Code is modified and reduced to an extent of 5 (five) years imprisonment, instead of 7 (seven) years imprisonment. Rest of the judgment and order passed by the learned Additional Sessions Judge is confirmed. R & P to be sent back to the trial Court immediately.