CR.A/1033/2004 1/6 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 1033 of 2004 For Approval and Signature: HONOURABLE MR.JUSTICE A.L.DAVE AND HONOURABLE MR.JUSTICE J.C.UPADHYAYA ========================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================= PIRABHAI RANCHHODBHAI MAJIRANA & 6 - Appellant(s) Versus STATE OF GUJARAT - Opponent(s) ========================================= Appearance : MR MC BAROT for Appellant(s) : 1 - 7. MR UR BHATT, APP for Opponent(s) : 1, ========================================= CORAM : HONOURABLE MR.JUSTICE A.L.DAVE and HONOURABLE MR.JUSTICE J.C.UPADHYAYA Date : 15/12/2008 ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE A.L.DAVE) 1. This appeal arises out of the judgment and order CR.A/1033/2004 2/6 JUDGMENT passed by the Fast Track Court, Deesa on 13.4.2004 in Sessions Case No.18 of 2003, whereby the appellants came to be convicted for offences punishable under Section 304 Part 2 read with Section 149 of the Indian Penal Code ('IPC', for short), under Section 326 read with Section 149 of IPC, under Section 325 read with Section 149 of IPC and Sections 147, 148 and 323 of IPC. The trial Court imposed a sentence of Rigorous imprisonment ('R.I', for short) for 10 years with a fine of Rs.2000/-, in default R.I for 3 months for the offence punishable under Section 304 Part 2 of the IPC r/w.Section 149 of the IPC on all the accused persons – the appellants herein. The trial Court imposed sentence of R.I for 6 years and fine of Rs.1000/-, in default R.I for 3 months for the offence punishable under Section 326 of the IPC r/w.Section 149 of IPC. So far as offence punishable under Section 325 read with Section 149 of IPC is concerned, the trial Court imposed a sentence of R.I for 3 years with fine of Rs.600/-, in default R.I for 15 days, and for offences punishable under Sections 147, 148 and 323 of IPC, the trial Court did not impose any separate sentence. 2. As per the prosecution case, the incident occurred on 15.10.2002, on the main-door, just outside the Village gate, at about 9 p.m., when the accused persons allegedly assaulted the deceased Bherabhai with various weapons like dhariya, knife, stick etc. As per the prosecution case, the incident has itself roots in an incident that occurred about 10 years prior to the present incident, where according to the prosecution, the death of two sons of the complainant were attributed to a black-magic being administered by the present accused. On the day of incident, the deceased had gone to the temple of CR.A/1033/2004 3/6 JUDGMENT Momai Mataji situated near the house of accused Pirabhai Ranchhodbhai. After offering prayers, when they were returning, the accused persons assaulted upon them suddenly, and caused fatal injuries to deceased Bherabhai, besides injuries to witnesses Bhikhabhai Ukardabhai, Hajabhai Kehra, Ravabhai Ukardabhai, Lakshman Sava, Ramesh Bhikha and Mashru Bhikha. Soon after the incident, an FIR came to be lodged by Bhikhabhai Ukardabhai with Panthawada Police Station. The offence was registered and investigated. Ultimately, a chargesheet was filed in the Court of learned JMFC, Dhanera, who in turn committed the case to the Court of sessions and Sessions Case No.18 of 2003 came to be registered. 3.1 The charge was framed against the accused persons vide Exh.10. The accused persons pleaded not guilty and claimed to be tried. The trial Court upon considering the evidence led by the prosecution before it, came to a conclusion that the prosecution was successful in proving charges for offences punishable under Section 304 Part 2 r/w.Section 149 of IPC, Section 326 r/w.Section 149 of IPC and Section 325 r/w.Section 149 of IPC. The trial Court did not accept the charge of murder against them and acquitted all of them for the offence of murder. The accused persons (convicts) have preferred this appeal to challenge the judgment and order of conviction and sentence. The State has not preferred any appeal against acquittal. 4. The record and proceeding is before us. Learned advocate Mr.M.C.Barot for the appellants, after taking us through the evidence and upon instructions from his clients, CR.A/1033/2004 4/6 JUDGMENT fairly conceded that the appellants would not be able to assail the conviction. However, he submitted that the trial Court has awarded maximum awardable punishment, so far as offence of culpable homicide not amounting to murder is concerned, which is too harsh and no reasons are recorded by the trial Court for awarding maximum punishment. He submitted that the appellants belong to poor strata of the society, they are agriculturists/agricultural labourers and their case for punishment ought to have been considered in that line. He therefore, submitted that the case of the appellants may be considered sympathetically, so far as sentence is concerned. 5. Learned APP Mr.Bhatt has opposed the appeal. He submitted that the trial Court has taken into consideration all relevant aspects while recording conviction and awarding punishment. He submitted that unless element of arbitrariness is shown in the discretion used by the trail Court while awarding sentence, this Court may not interfere with the sentence awarded by the trial Court. He submitted that the appeal may therefore be dismissed. 6. We have taken into consideration the rival side submissions. We have also examined ourselves, the merits of the appeal and we find that the evidence as to the occurrence is strong and unshaking in form of depositions of witnesses Ravabhai Ukardabhai, Hajabhai Kehra, Lakshman Sava, Ramesh Bhikha, Mahadeva Okha and Mashru Bhikha from Exhs.55 to 60 respectively. The picture that emerges from their depositions is that the deceased was attacked by the appellants in a group armed with deadly weapons, and there is no material to show that the deceased or his companions had CR.A/1033/2004 5/6 JUDGMENT given any cause or reason for the incident. Under the circumstances, we are of the view that learned advocate Mr.Barot was justified in not assailing the conviction part of the judgment impugned in the appeal. The trial Court has appropriately dealt with the evidence and has come to a conclusion about the formation of unlawful assembly, about the object of the assembly and about the involvement of the appellants. We, therefore, accept the submission made by learned advocate Mr.Barot and confirm the conviction of the appellant as recorded by the trial Court. 7. So far as quantum is concerned, we may record that accused No.3 Shantibhai Ranchhodbhai is in prison as on today and he has undergone sentence of a period of more than 6 years. The rest of the accused persons were on bail during trial and are on bail as on today, and they have uptil now undergone about 4 months of imprisonment. We also notice that none of the appellants have paid the fine imposed by the trial Court. 8. Upon going through the judgment, we find that the trial Court has in its reasonings, while awarding sentence, recorded circumstances like poverty, absence of criminal antecedents, accused being the only earning members of their respective family and last but not the least, the long tenure in jail is likely to damage their reputation. With these observations we notice that the trial Court has awarded the maximum permissible sentence of 10 years, and therefore, the reasoning adopted by the trial Court, while awarding sentence cannot be considered to be relevant and the exercise of discretion cannot be considered as proper. We are, therefore, CR.A/1033/2004 6/6 JUDGMENT of the view that sentence part calls for interference in exercise of appellate jurisdiction by this Court. 9. Therefore, while partly allowing the appeal, we hold that the conviction of the appellants is hereby confirmed. However, the sentence awarded by the trial Court for offence punishable under Section 304 Part 2 read with Section 149 of IPC is reduced to R.I for a period of 7 years, without any change in the fine imposed. The rest of the sentence do not call for any interference. 10. The appellants No.1, 2 and 4 to 7 are on bail. They shall surrender to the custody before Sessions Court latest by 31.12.2008, failing which it would be open for the Sessions Court to take coercive action for implementation of the sentence. 11. The appeal thus stands partly allowed. The sentence awarded by this Court shall run concurrently. (A.L.DAVE, J.) (J.C.UPADHYAYA, J.) (binoy)