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Judgment
Z.K. Saiyed, J.—The appellant has preferred this Appeal u/s 374 of the Code of Criminal Procedure, 1973 against the judgment and order of conviction dated 31st January 1994 passed by the learned Additional Sessions Judge, Court No. 3, City Civil and Sessions Court, Ahmedabad, in Sessions Case No. 320 of 1989, whereby the learned Judge has convicted the appellant-accused u/s 324 of the Indian Penal Code.
The Short facts of the case are as under:
2.1 The appellant along with other Muslims had gone to the Kalandari Masjid situated at Rakhial to offer Namaz at 14:00 hours on 10th May 1989. It is alleged by the prosecution further that Yakubkhan Mominkhan and his elder brother Ayubkhan Mominkhan started offering prayer at the garve of Kalandari Bawa which is situated within the premise of Masjid itself. The appellant and other Muslims are regularly coming to this Masjid to offer Namaz belonged to a sect known as ''Tabliq'', whereas the original complainant and his brother belonged to a sect known as ''Momin''.
2.2 The ''Tabliq'' sect of Sunni Muslims do not believe in offering prayer at the grave or a Tomb of any saint. Whereas the Momin sect believes in prayer at the Tomb of Bawa. It is the case of the prosecution that on this account, trustees of Kalandari Masjid, who were also present in the congregation of persons offering prayer, objected the complainant and his brother to offer prayer at the Tomb of Kalandari Bawa.
2.3 The case of the prosecution is further that on account of this, dispute arose between the parties and as a result of which incident in question took place outside the Kalandari Masjid on a publc road. It is the case of the prosecution that the present appellant-original accused No. 1 and original accused No. 2 were armed with knife and original accused No. 5 was armed with pipe, who assaulted original complainant and his brother. It is alleged by the complainant in the complaint that the original accused No. 1 gave one knife blow on the head of his brother and the original accused No. 5 gave a knife blow on the thigh of his brother. It is also alleged in the complaint that original accused No. 5 gave one pipe blow to his brother and when the brother of the original complainant tried to run away, the original accused No. 1 gave one blow on the back of him. Therefore, the complainant filed criminal complaint with Gomtipur Police Station against the accused persons, which is registered as CR No. I-141 of 1989.
2.4 As against the complaint filed by the original complainant, the present appellant-original accused No. 1 filed counter complaint with Gomtipur Police Station against the original complainant and his brother, which is registered as CR No. I-142 of 1989.
2.5 Thereafter, after recording statements of witnesses, charge-sheets were filed in both the the cases. The present appellant was charge-sheeted along with six other persons in Sessions Case No. 320 of 1989, whereas the original complainant and his brother were charge-sheeted in Sessions Case No. 319 of 1989.
Thereafter the trial was conducted before the learned Judge. To prove the case of the prosecution, prosecution has produced oral as well as documentary evidence. The prosecution has examined complainant at Exh. 14, his broter at Exh.16, Panch witness Abidali Abdulsakur Shaikh at Exh.25, Eye-witness Umarkhan Pathan at Exh.27, Panch Yunuskhan Pathat at Exh.28, Dr. Virendra Kanaiyalal Shah at Exh.32, Executive Magistrate Sanatan Datania at Exh.36, Investigating Officer Navinchandra Hiralal Joshi at Exh.37 and Police Inspector Govindlal Chavda at Exh.39. The defence has not examined any witnesses.
After hearing both the sides, the learned Additional Sessions Judge, Court No. 3, City Civil and Sessions Court, Ahmedabad, has been pleased to convict the appellant-accused by judgment and order dated 31st January 1994 in Sessions Case No. 320 of 1989 and acquitted the original accused Nos. 2 to 7 from the charges levelled against them, whereas the present appellant-original accused No. 1 was sentenced to suffer rigorous imprisonment for six months and to pay fine of Rs. 1,000/- (Rupees One Thousand Only) and in default, to suffer rigorous imprisonment for one month u/s 324 of the Indian Penal Code.
Being aggrieved by and dissatisfied with the said judgment and order dated 31st January 1994 passed by the learned Additional Sessions Judge, Court No. 3, City Civil and Sessions Court, Ahmedabad, in Sessions Case No. 320 of 1989, the appellant has preferred the above-mentioned Criminal Appeal before this Hon''ble Court.
I have heard Mr. Y.V. Vaghela for Mr. B.P. Jhala, learned Counsel for the appellant-accused and Mr. A.J. Desai, learned Additional Public Prosecutor, appearing on behalf of the Respondent-State. I have also gone through the papers produced before me and the judgment and order passed by the trial Court.
Mr. Vaghela has taken me through the evidence of prosecution witnesses and the documentary evidence and submitted that from the above evidence it is established that the prosecution has failed to prove its case beyond reasonable doubt. He has contended that the learned Judge has not considered that there was a cross complaint filed by both the parties and there was free fight between the parties. The learned Counsel for the appellant has also contended that though the role of the present appellant is not proved beyond the reasonable doubt, the learned Judge has held the present appellant-accused guilty of the offence u/s 324 of the Indian Penal Code. He has read the panchnama and contended that panchnama is also not proved beyond reasonable doubt. He has also contended that evidence of eye-witness is doubtful. He has also contended that the whole case of the prosecution is in cloudy manner and is required to be quashed and set aside and the appellant is required to be acquitted from the charges levelled against him. He has also read the oral as well as documentary evidence and vehemently contended that sufficient contradiction is proved before the learned Judge and the judgment and order of conviction is not legally tenable and hence, judgment and order of conviction is required to be set aside.
Heard Mr. A.J. Desai, learned Additional Public Prosecutor for the respondent-State, has supported the judgment and order of the trial Court. He has contended that looking to the charge framed against the appellant-accused, the learned Judge has not considered the fact that the charge for the offence u/s 135(1) of the Bombay Police Act was also framed against the appellant. He has also read the documentary evidence produced on record and contended that learned Judge has not committed any error in convicting the appellant-accused.
I have gone through papers produced before me and the judgment and order passed by the trial Court. I have also perused the oral as well as documentary evidence led before the trial Court and also considered the submissions made by learned advocate for the appellant.
The Trial Court, has after appreciating the facts and evidence on record, found that there was a free fight between the parties on account of religious aspect. It is also observed by the trial Court that prosecution has proved the case beyond the reasonable case against the appellant-accused. It is also observed that it is the duty of the appellant-accused to prove his version.
Learned Counsel for the appellant is not in a position to show any evidence to take a contrary view in the matter or to show that the approach of the Trial Court is vitiated by some manifest illegality or that the decision is perverse or that the trial Court has ignored the material evidence on record. During the hearing of the present appeal, the learned Counsel for the applicant has contended that his arguments can be considered for the purpose of quantum of sentence only.
In above view of the matter, I am of the considered opinion that the Trial Court was completely justified in convicting the appellant-accused of the charges levelled against him. I find that the findings recorded by the Trial Court are absolutely just and proper and in recording the said findings, no illegality or infirmity has been committed by it. It is observed that the appeal was filed in the year 1994. The present appellant was convicted u/s 324 of the Indian Penal Code for a period of six months. Looking to the time gap of filing of charge-sheet, date of the judgment and today when the matter is listed before this Court for 21st times, sentence imposed upon the appellant-accused is required to be reduced and modified on the ground of sympathy.
Hence, the present appeal is partly allowed. The judgment and order of conviction dated 31st January 1994, passed by the learned Additional Sessions Judge, Court No. 3, City Civil and Sessions Court, Ahmedabad, in Sessions Case No. 320 of 1989, is hereby confirmed; however, so far as order of conviction and sentence is concerned, the same is reduced and modified to the extent that instead of rigorous imprisonment for six months for the offence punishable u/s 324 of the Indian Penal Code, the appellant-convict shall now undergo rigorous imprisonment for four months. The order of fine shall remain unaltered so far as the aforesaid offence is concerned.
The appellant is enjoying bail at present. The appellant is directed to surrender himself before the Jail Authority within a period of four weeks from today to serve the sentence, failing which the trial Court shall issue a non-bailable warrant against the appellant to secure the custody of the appellant so that he can be sent to jail for serving the sentence. The bail bond of the appellant shall stand cancelled. Record and Proceedings to be sent back to the trial Court, forthwith.