CR.A/458/2001 1/5 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 458 of 2001 For Approval and Signature: HONOURABLE MR.JUSTICE J.R.VORA HONOURABLE MR.JUSTICE M.R. SHAH ========================================= 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 ? ========================================= VARSANGJI @ VISHNU KARSANJI Versus STATE OF GUJARAT ========================================= Appearance : MS SADHANA SAGAR for Appellant MR DIPEN A DESAI APP for Respondent, ========================================= CORAM : HONOURABLE MR.JUSTICE J.R.VORA and HONOURABLE MR.JUSTICE M.R. SHAH Date : 02/04/2008 ORAL JUDGMENT :(Per : HONOURABLE MR.JUSTICE J.R.VORA) 1 This Criminal Appeal is preferred by the appellant under Section 374 (2) of the Code of Criminal Procedure, against the judgment CR.A/458/2001 2/5 JUDGMENT and order delivered by the Additional Sessions Judge, Ahmedabad (Rural) at Gandhinagar, on 18th of May, 2001, in Sessions Case No. 38 of 2000. The appellant being accused of the said Sessions Case was charge sheeted for the offences punishable under Section 307 of the Indian Penal Code as well as under Section 135(1)(b) of the Bombay Police Act. On pleading not guilty, the present appellant was put to trial and prosecution examined as many as 10 witnesses and produced on record necessary documentary evidence. After recording of the evidence, statement of the accused under Section 313 of the Criminal Procedure Code was recorded by the Trial Court and after hearing the prosecution case as well as the accused, the learned Trial Judge convicted the present appellant for the offences punishable under Section 307 of the Indian Penal Code and he was sentenced to undergo rigorous imprisonment of 10 years and to pay fine of Rs. 1,000/­, in default, to undergo simple imprisonment of three months. It appears that the accused appellant was acquitted for the charge levelled against him under Section 135 (1)(b) of the Bombay Police Act. 2 Being aggrieved by the above said judgment and order, accused has preferred this Appeal. 3 Learned Advocate Ms. Sadhana Sagar for the appellant and CR.A/458/2001 3/5 JUDGMENT learned APP Mr. Dipen A Desai for the respondent State were heard in respect of this Appeal. 4 Restricting this Appeal for the quantum of sentence awarded to the appellant, learned Advocate Ms. Sadhana Sagar, submitted that she does not press this Appeal on merits and since the appellant accused is about to complete the sentence awarded to him fully, she raises only point to reduce the quantum of sentence awarded to the accused. It is submitted that out of 10 years rigorous imprisonment awarded to the appellant, the appellant has already undergone imprisonment of 07 years 01 month and 26 days as on today including set off given to the appellant. Jail remarks sheet submitted on record on behalf of the respondent, this fact is confirmed and it is further confirmed that the appellant ­ accused is entitled to remission of 2 years, five months and 18 days. Considering the period of remission and the period of sentence which the appellant has undergone, according to jail remarks produced on record, the appellant is likely to be released on 22nd of August, 2008 after serving the full sentence. The jail remarks sheet also indicates that the appellant has paid the amount of fine. Basing argument on these facts, Ms. Sadhana Sagar, learned Advocate for the Appellant stated that the appellant accused is of younger age and has family. Responsibility to maintain family is upon the appellant. The appellant CR.A/458/2001 4/5 JUDGMENT was working as Gardener and the injured was his Engineer at Motera in Swagat Bungalows. On account of human weakness when injured scolded the appellant, he was excited and caused injury to the injured. It is submitted that the jail conduct of the appellant from the jail remarks sheet is also found good. It is submitted that after remaining almost more than seven years in the jail, appellant must be repenting his act and he may be given an opportunity to settle in society as good citizen and, therefore, it is submitted that when appeal is not pressed on merits, the Appeal may be allowed to the extent of reduction of sentence undergone by the appellant. 5 Learned APP Mr. Dipen A Desai was also heard in respect of quantum of sentence. 6 From the above and after going through the record, it appears that the conviction imposed by the Trial Court is required to be upheld though this Appeal is not pressed on merits. So far as the submission of learned Advocate for the appellant about reduction of sentence is concerned, from what is stated above, we feel that, the appellant has already undergone more than 90% of the sentence awarded to him and the special circumstances as narrated by learned Advocate for the appellant are also taken into consideration. Having CR.A/458/2001 5/5 JUDGMENT regard to the nature of the incident which has occurred and keeping in mind the reformative purpose of penology and to give a chance to the appellant to reform him and to settle him as good citizen in society, we come to the conclusion that the request made on behalf of the appellant is required to be accepted. In this view of the matter, the following order is passed. “Criminal Appeal No. 458 of 2001, filed by the accused Varsangji @ Vishnu Karsanji Thakor, is partly allowed to the extent that while maintaining the conviction awarded to the Appellant by the Trial Court, sentence awarded to the appellant by the Trial Court for rigorous imprisonment of 10 years is reduced and modified to the extent already undergone by the appellant which comes to about 9 years and 06 months including remission according to jail remarks sheet produced on record. Rest of the Appeal of the appellant stands dismissed. Accused – appellant Varsangji @ Vishnu Karsanji Thakor is directed to be set at liberty forthwith if he is not required to be detained in jail for any other purpose. Office is directed to transmit writ to the Jail Authority immediately. (J.R. VORA, J.) (M.R. SHAH, J.) pnnair