Kanchanbhai Zaverbhai Baria and Others vs State of Gujarat

Z.K. Saiyed, J.—The Appellants - original accused have filed this Appeal u/s 378 Code of Criminal Procedure , against the judgment and order of conviction and sentence dated 14.05.2009 passed by the learned 5th Additional District & Sessions Judge, Vadodara, in Sessions Case No. 149 of 2007, whereby the learned Additional Sessions Judge has (i) held the Appellant No. 1 - (ori. Accused No. 1) guilty for the offence punishable u/s 304 Part-II of I.P. Code and sentenced him to suffer RI for 6 (years) and to pay a fine of Rs. 5000/- i/d to undergo SI for 3 (three) months; (ii) held the Appellants No. 2 & 4 - original accused Nos. 2 & 4 guilty for the offence u/s 323 I.P. Code and sentenced them to suffer imprisonment for 6 (six) months; and (iii) held the Appellant No. 3 -original accused No. 3 guilty for the offence u/s 324 of I.P. Code and awarded the sentence to the extent that the sentence which he had already undergone was treated as sentence.

The brief facts of the case of prosecution are that before one year the complainant had kidnapped the daughter of Bhailalbhai Zinabhai. However, the said matter was compromised between the complainant and accused in the village. Thereafter the quarrel took place between the accused and the complainant side. It is alleged that accused No. 1 gave a dharia blow on the head of Vitthalbhai Zinabhai and caused serious injury and due to said injury Vitthalbhai died, the accused No. 2 gave stick blow on the wrist of left hand of complainant Mukeshbhai and caused fracture, the accused No. 3 gave an Axe blow on the head of witness Bhailalbhai Zinabhai and caused injury and accused No. 5 gave stick blow on the hand of witness Nandaben Vitthalbhai and thereby committed an offence under Sections 143, 147, 148, 325, 326, 302, 504, 114 of I.P. Code and Section 135 of Bombay Police Act. Thereafter the complainant lodged complaint with Dabhoi Police Station. The Police registered the offence against the accused and carried out investigation. Thereafter, the accused were 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 the witnesses and also relied upon documentary evidence and at the end of trial, after recording the statement of the accused u/s 313 Code of Criminal Procedure, and after hearing the arguments on behalf of the prosecution and the defence, the learned Sessions Judge held the Appellants guilty of the offences and awarded the sentence as narrated herein above.

Being aggrieved by and dissatisfied with the aforesaid judgment and order of conviction and sentence the Appellant - accused has preferred this Appeal.

Heard learned advocate Mr. Trivedi, appearing on behalf of the Appellants - accused and learned APP Mr. H.H. Parikh, 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 Appellants - accused have not committed any offence as alleged in the charge-sheet. He has contended that looking to the oral as well as documentary evidence of the witness as well as the evidence of medical expert the Appellant have not committed the offence as alleged against them. He has contended that there are serious contradictions in the oral evidence of witnesses. Learned Advocate has also contended that he is not arguing the matter on merit. However, he has contended that the sentence awarded by the learned Judge is very harsh and contended that the Appellant No. 1 is in jail since about four years and if the said period is treated as the sentence which he had already undergone, the same would serve the ends of justice. Therefore, some leniency may be shown towards the Appellants.

Learned APP has supported the judgment and order passed by the learned Sessions 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 oral as well as documentary evidence produced before me. 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 Appellants - accused guilty for the offences charged against them. However, looking to the facts and circumstances of the case, in my opinion, the sentence awarded by the learned Judge is very harsh. The learned Advocate appearing on behalf of the Appellants has also not argued the matter seriously on merit and contended that the Appellants - accused are illiterate and poor person and, therefore, some leniency may be shown towards the Appellants. From the Jail record, produced by the learned A.P.P., it appears that till date the Appellant No. 1 has undergone sentence for about 4 years. Therefore, if the sentence awarded by the learned Judge is reduced to an extent that the sentence which the Appellants have already undergone may be treated as sentence, the same would serve the ends of justice.

In view of above, the Appeal is partly allowed. The judgment and order of conviction dated 14.05.2009 passed by learned 5th Additional District & Sessions Judge, Vadodara, in Sessions Case No. 149 of 2007 convicting the Appellants - accused for the offences charged against them is hereby confirmed. However, the sentence awarded by the learned Additional Sessions Judge, vide the impugned judgment, is reduced to an extent that the period of sentence which the Appellants -accused have already undergone till date, may be treated as sentence awarded to the Appellants - accused. Rest of the judgment and order passed by the learned Sessions Judge is confirmed. Bail Bond, if any, shall stand cancelled. R & P to be sent back to the trial Court immediately.