CR.A/207/2006 1/12 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 207 of 2006 For Approval and Signature: HONOURABLE MR.JUSTICE MD 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 ? ========================================================= LAKHMANBHAI MASARIBHAI GHODADRA KOLI, & 2 - Appellant(s) Versus STATE OF GUJARAT & 1 - Opponent(s) ========================================================= Appearance : MR Shirish R Patel, with Mr HARSHIT S TOLIA for Appellant(s) :1-4. Mr L R Pujari, Addl.PUBLIC PROSECUTOR for Opponent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE MD SHAH Date : 10/09/2008 ORAL JUDGMENT 1. This appeal has been filed by the appellants-original accused challenging the judgment and order of conviction and sentence dated 31.1.2006 CR.A/207/2006 2/12 JUDGMENT passed by the learned Addl. Sessions Judge, Fast Track Court, Veraval, District Junagadh in Sessions Case No. 398/1999 whereby the appellants were convicted and sentenced to suffer R.I. for seven years for offence punishable under section 307 read with section 149 of IPC. with fine of Rs.3000/- each, in default, each of them were directed to suffer R.I for a period of 3 months for the said offence. Further the present appellants were convicted and sentenced to suffer R.I for a period of 2 years and to pay a fine of Rs.500/- each, in default, each of them were directed to undergo R.I for a period of 15 days for the offence punishable under section 324 read with section 149 of IPC. Further, the present appellants were convicted and sentenced to suffer R.I for a period of 3 years with fine of Rs.500/- each, in default, each of them were directed to undergo R.I for a period of 1 month for the offence punishable under section 325 read with section 149 of IPC. Further, the present appellants were convicted and sentenced to suffer R.I for a period of 5 years and also to pay a fine of Rs.1000/- each, in default, each of them are directed to CR.A/207/2006 3/12 JUDGMENT undergo R.I for a period of 3 months for the offence punishable under section 367 read with 149 of IPC. So far as offence punishable under sections 141 read with 149 and section 427 read with 149 of IPC are concerned, the court has not awarded any separate sentence. The above sentences were ordered to run concurrently. 2. The appellants were acquitted of the offence under section 504 read with section 149, 506(2) read with 149 and 469 read with 149 of IPC as well as under section 135 of the Bombay Police Act. The above sentences were ordered to run concurrently. The brief facts of the case are as under: 3. The incident in question took place on 1.12.1998 at about 2.30 p.m in the sim of village Khera, which is situated at a distance of 9 kms away from Chorwad police station of Maliya Hatina Taluka under Junagadh District. It is alleged that complainant Dayabhai Nathabhai Koli has filed a complaint against all these appellants and two women accused. It is alleged that the there was a land CR.A/207/2006 4/12 JUDGMENT dispute between the appellants and the accused persons. It is the case of the prosecution that on the day of the incident at about 2.30 p.m., the complainant Dayabhai while going to his Wadi, locked his house and he was going to give the keys to the daughter of Ajitbhai Bhayabhai who was studying in the school at Village-Khera. When he reached near Gram Panchayat office at village-Khera, all the 6 accused persons met him near panchayat office. The appellant Lakhmanbhai was armed with stick. Appellant no.2 Mensi Lakhman was armed with spade, appellant no.3, Devshibhai was armed with axe and appellant no.4-Bhaveshbhai was armed with iron pipe and the women accused were armed with stones in their hands. On seeing the complainant, all the accused persons ran towards him and started beating him. Women accused were pelting stones. To save himself from the accused persons , he went to the flour mill of one Manda Mepa in which Mohanbhai Dhirubhai was present. Mohanbhai Dhirubai closed the door of the shop. All the accused broke opened the door and climbed on the roof of the shop. The roof was also broken and damage was caused to the shop. Therefore, CR.A/207/2006 5/12 JUDGMENT the complainant ran away from the rear door of the shop towards the door of the house of Bhikha Kana. The complainant climbed up on the house of Bhikha Kana and came to the compound of Bavaji Balakdas where all the appellants attacked and caused injuries on the complainant with the weapons as well as by pelting stones. The complainant was dragged towards the Panchayat office by the accused persons and was taken at the Wadi of appellant No.1. On the way, the signature of the complainant was forcibly obtained by the appellants-accused on blank paper. When the complainant reached the Wadi of appellant No.1-Dahiben, wife of Jasa Mepa and Manda Mepa intervened and came at the rescue of the complainant and the appellants were persuaded and he was separated from the appellants. The appellants were giving abuses and had threatened to kill the complainant, all throughout. Thereafter Mandabhai and Dahiben both brought the complainant towards village Khera. One Kanji Babu brought the complainant to Municipal General Hospital at Veraval by car. The complainant was admitted for treatment in the hospital for fractures in hand and leg. Later on, CR.A/207/2006 6/12 JUDGMENT the complainant was transferred to Dr. Gandhi at Veraval for further treatment. As per the prosecution case, during the incident, Dayabhai, Dahiben and Dhirubhai who were also injured and were also brought to Municipal General Hospital, Veraval. The complainant sustained fracture injuries on right arm, right ulna, left ulna, compound fracture of right tibia and other multiple injuries. He was operated upon the leg. Dhiru Mepa also sustained fracture injury of right lower end of ulna. 4. Dayabhai Nathabhai lodged complaint and offence was registered against all the six accused persons including the present appellant at Chorvad police station as CR No.0065 of 1998. Thereafter, investigation was carried out, panchnama of the scene of offence was drawn by the appellant in presence of Panchas as well as the statement of the injured witnesses were recorded. All the accused were arrested on 10.12.1998 at 3 p.m. All the muddamal articles were produced and seized. Necessary muddamal weapons were sent to FSL. During the course of investigation, statements of various CR.A/207/2006 7/12 JUDGMENT witnesses were recorded and medical certificates from all the doctors were collected. At the end of the investigation, as referred to above, the appellants along with two women accused, Valiben, and Jayaben i.e., in all six accused persons were charged for the offences punishable under sections 143, 147, 148, 307, 324, 325, 323, 341, 367, 427, 469, 504 & 506 (2) of IPC as well as section 135 of the Bombay Police Act. Charge sheet was filed by the Investigating Officer before the learned Judical Magistrate, First Class, Maliya Hatina. As the learned JMFC has no jurisdiction to try the case, the case was committed to the court of Sessions Judge at Junagadh and thereafter this case was transferred to the court of learned Pesiding Officer & Addl.Sessions Judge, Fast Track Court, Veraval, District, Junagadh, who tried the case. Charge Exh.10 for the above charges were read over to the appellants for which they did not plead guilty and claimed to be tried. 5. The prosecution has examined in all 23 witnesses. Documentary evidences including medical certificates, panchnama, scene of offence-Exh.22, CR.A/207/2006 8/12 JUDGMENT Recovery of weapons Exh-26, injury certifaicate issued by the Doctor, FSL report and complaint were also adduced by the prosecution. 6. Further statements of all the accused persons were recorded under the provisions of Section 313 of the Criminal Procedure Code in which they have stated that they are falsely involved in the crime and false case has been filed against them. They have produced written statement along with five documents in their further statement. 7. After hearing the arguments of the Learned APP and the advocate of the defence, the learned Trial Judge has convicted the appellants No.1 to 4 as stated in para 1 of this judgment. Against the said judgment and order, the present appeal has been filed by the appellants-accused. 8. During the pendency of this case, accused Valiben expired and therefore, the case is abated against her. Accused Jayaben has been acquitted of all the charges with which she was charged. CR.A/207/2006 9/12 JUDGMENT 9. Heard Mr Shirish Patel with Mr H.S. Tolia, learned advocates for the appellants. It is submitted by Mr Tolia that the accused persons and the complainant as well as the witnesses are related to each other and the matter is now settled between the parties due to the intervention of elders of their family and respected persons of their community of their village. On behalf of the complainant, affidavit is also filed in this respect. On last occasion, all the injured persons were present before the court. In the affidavit it is stated that all the injured persons and appellants belong to one family, that this compromise is entered into in the interest of all the family members. It is also stated that without any fear, force, coercion or apprehension, with a free will, they have entered into the compromise and that the dispute is settled between them. 10. Mr Shirish Patel, learned advocate on behalf of the complainant is permitted to file his Vakalatnama who placed the affidavit filed by the complainant. He also submitted that because of the CR.A/207/2006 10/12 JUDGMENT intervention of respected persons of their community as well as elders of their family, now the matter is settled between the parties. Mr Tolia, learned Advocate submitted that the accused were remaining in jail since three years and that he is only pressing the point of quantum of sentence and he requested the court to reduce the sentence, as the matter is now settled between the parties. 11. No doubt, as far as offence under 307 of the IPC is concerned, under section 320 of the Criminal Procedure Code, the said offence cannot be compounded but this fact can be considered at the time of awarding the sentence. In support of his submission, he has placed reliance on a decision in the case of Ram Edbal Upadhya & Ors. v. State of Bihar (2001) 10 SCC 233) wherein the Hon'ble the Supreme Court, after considering the grievous hurt caused to the appellants, altered the section of offence of 307 to section 326 of IPC and the sentence was reduced to imprisonment for a period already suffered by the appellants and disposed of the appeal in that terms. CR.A/207/2006 11/12 JUDGMENT 12. In the present case, this court has gone through the medical evidence. It transpires from the medical evidence that all the injured persons were received grievous hurt and no injury was found on the vital parts of the body. As per the evidence of the Doctor who treated the injured, the injuries were not sufficient to cause death in ordinary course of nature. Taking into consideration the totality of the evidence and the injuries received by the injured persons and the settlement took place between the parties, in the opinion of this court, the sentence is required to be reduced. 13. In the result, this appeal is partly allowed. The judgment and order of conviction and sentence dated 31.1.2006 passed by the learned trial Judge against the appellants stands modified to the extent that the conviction is confirmed and the sentence imposed upon the appellants No.1 to 4 to suffer rigorous imprisonment is reduced to three years for each of the offences punishable under sections 307/149 and 367/149 of IPC. So far as the default clauses are concerned, they are not altered. CR.A/207/2006 12/12 JUDGMENT The above sentences are ordered to run concurrently. The accused is entitled to get benefit of set off for the period already undergone, under section 428 of the Criminal Procedure Code, 1973. Rest of the judgment and order of conviction and sentence passed by the learned Addl. Sessions Judge, Fast Track Court, Veraval, District Junagadh in Sessions Case No. 398/1999 remains unaltered. [M.D. SHAH, J.] msp