Ramanbhai Khatribhai Vasava vs The State of Gujarat

Z.K. Saiyed, J.—The Appellant - original accused has filed this Appeal, through jail, against the judgment and order of conviction and sentence dated 15.11.2006 passed by the learned Sessions Judge, District Narmada at Rajpipla, in Sessions Case No. 26 of 2006, whereby the learned Sessions Judge has held the Appellant - accused guilty for the offence punishable u/s 307 of I.P. Code and sentenced him to suffer Rigorous Imprisonment for 7 years and to pay a fine of Rs. 5,000/- i/d to further undergo SI for one year. The learned Sessions Judge also held the Appellant - accused guilty for the offence u/s 135 of the Bombay Police Act and sentenced him to suffer RI for three months and to pay a fine of Rs. 100/- i/d to further SI for 15 days. The learned Judge ordered that both the sentences to run concurrently.

The brief facts of the case of prosecution are that on 20.5.2002 at 22.00 hours the Appellant (original accused) had attacked the complainant, who is residing at village Mota Hendva, Taluka Nandod, with an intention to cause his death and inflicted the blows on the body of the complainant by using dangerous weapon like Axe. Therefore, the complaint was lodged against the Appellant - accused with Rajpipla Police Station vide CR No. I - 88 of 2002.

Necessary investigation was carried out by the Police. Offence under Sections 307 of I.P. Code read with Section 135 of the B.P. Act was registered against the accused. 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 Sessions Judge framed the charge against the accused. The accused pleaded not guilty to the charge and claimed to be tried. The accused was also provided the Advocate from the Legal aid.

To prove the case against the accused, the prosecution has examined 08 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 Appellant (original accused) guilty of the offences charged against him 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. Vijay Nagesh, appearing as an amicus curiae, on behalf of the Appellant 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 Appellant - accused has not committed any offence as alleged in the charge. 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 has not committed the offence alleged against him. He has contended that there are serious contradictions in the oral evidence of injured witness. As per medical evidence, the injuries were caused by knife while as per the case of prosecution Axe was used by the accused. He has contended that both the Panchas have not supported the case of the prosecution and they were declared hostile. He has contended that the version of the injured witness is not supported by any independent witnesses. Therefore, the prosecution has failed to prove its case beyond reasonable doubt. Lastly, he has contended that the sentence awarded by the learned Judge is very harsh. He has contended that the Appellant - accused is illiterate and poor person and he is unable to even engage the lawyer. The Appellant - accused is in jail since long and as per the jail Report till today he has undergone the sentence of 4 years, 5 months and 25 days and, therefore, if the sentence which he has already undergone may be treated as sentence, the same would serve the ends of justice. Therefore, some leniency may be shown towards the Appellant.

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 Appellant - accused guilty for the offences charged against him. 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 Appellant has also not argued the matter seriously on merit and contended that the Appellant - accused is an illiterate and poor person and he is the bread-winner of the family and, therefore, some leniency may be shown towards the Appellant. From the Jail record produced by the learned APP it appears that till date the Appellant - accused has already undergone the sentence of 4 year, 5 month and 25 days. Therefore, if the sentence awarded by the learned Judge is reduced to an extent that the sentence which the Appellant has 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 15.11.2006 passed by learned Sessions Judge, Narmada at Rajpipla, in Sessions Case No. 26 of 2006 convicting the Appellant - accused for the offence punishable u/s 307 of I.P. Code read with Section 135 of the B.P. Act is hereby confirmed. However, the sentence awarded by the learned Sessions Judge, vide the impugned judgment, is reduced to the extent that the period of sentence which the Appellant - accused has already undergone till date, may be treated as sentence awarded to the Appellant - accused and the Appellant - accused shall be set at liberty forthwith if he is not required to be detained in any other case. Rest of the judgment and order passed by the learned Sessions Judge is confirmed. R & P to be sent back to the trial Court immediately.