Abbakhalid Abdulla Aarab vs State of Gujarat

Z.K. Saiyed, J.—The appellant - original accused has filed this Appeal u/s 374 of Cr.P.C., challenging the Judgment and order of conviction dated 01.04.1998 passed by the learned Additional Sessions Judge, Bhavnagar, in Sessions Case No. 86 of 1997, whereby the learned Additional Sessions Judge has held the appellant - accused guilty for the offences charged against him.

Brief facts of the prosecution case is that complainant Ismailbhai Huseinmiya has lodged the complaint before the Police alleging that at about 1.30 in the mid night of 11.3.1997 when his brother Abdullabhai was proceeding towards his house, at that time, on the way respondent - accused had abused him and demanded money and thereafter quarrel took place between the accused and Abdullabhai. It is alleged that at that time the accused took out the ''Chhari'' (knife) and gave blows of Chhari on the chest of Abdullabhai. Abdulbhai fell down on the ground and the blood was oozing from the body of injured who was lying on the earth. The accused thereafter ran away. The injured was shifted to the Hospital and from the Hospital the message was sent to the Police. Thereafter, the complainant - brother of the accused, lodged the complaint against the accused with ''C'' Division Police Station, Bhavnagar, vide CR No. I-42/97 for the offence punishable u/s 307 of I.P. Code and u/s 135 of the Bombay Police Act.

On completion of necessary procedure, the charge-sheet against the accused came to be submitted before the concerned Court. The prosecution has examined the witnesses and also relied upon the documents produced on record and at the end recorded the statement of accused u/s 313 of Cr.P.C. At the conclusion of the trial, after considering the oral as well as documentary evidence led by the parties and the arguments advanced, the learned Additional Sessions Judge, vide impugned Judgment and order dated 01.04.1998, held the accused - appellant guilty for the offence punishable u/s 307 of I.P. Code and awarded sentence to the accused to under-go rigorous imprisonment for four years and to pay fine of Rs. 500/- in default to undergo R.I. for three months.

Being aggrieved by and dissatisfied with the Judgment and order dated 01.04.1998 passed by the learned Additional Sessions Judge, Bhavnagar, in Sessions Case No. 86 of 1997, the appellant (original accused) has preferred this Appeal.

Heard learned Advocate Mr. E.E. Saiyed, on behalf of the appellant - original accused and learned A.P.P. Mr. A.J. Desai, appearing on behalf of the respondent - State. I have gone through the Judgment and order passed by the learned Addl. Sessions Judge and also gone through the oral as well as documentary evidence produced before me. I have also gone through the papers produced before me.

Mr. Saiyed has contended that the appellant - accused has not committed an offence as alleged and he is an innocent person. He has contended that the Judgment of the trial Court is not proper and against the provision of law. He has also contended that the Panch witnesses have not supported the case of prosecution. He has also contended that the place of incident, as shown by the prosecution, is also doubtful. However, so far as merits of the matter are concerned, the learned Advocate Mr. E.E. Saiyed has not argued much, but, he has contended that the appellant - accused is a poor person and at the time of alleged incident he was only aged about 19 years. The case was registered against him in the year 1997 and after a long period of about 13 years it will not be proper to send him behind the bars. He has contended that the appellant - accused has undergone sentence of about 1-1/2 and requested this Court that if the amount of fine imposed by the learned Judge is increased and the sentence which the appellant - accused has undergone may be treated as sentence, the same would serve the ends of justice.

Learned A.P.P. Mr. Desai has supported the Judgment and order of the learned trial Judge. He has contended that from the oral as well as documentary evidence it is established that the prosecution has proved its case beyond reasonable doubt. He, therefore, contended that the trial Court has not committed any error in holding the appellant - accused guilty for the charges levelled against him and, therefore, no interference is required to be called for.

I have gone through the Judgment and order of the trial Court. I have also perused the oral as well as documentary evidence on record. Looking to the evidence produced before me and perusing the Judgment of the trial Court, in my opinion, learned Counsel for the appellant is not in a position to convince this Court as to from which angle the case of the prosecution is not believable and the Judgment of the trial Court is not proper. However, looking to the fact that at the time of incident the accused was aged only 19 years and he has already undergone sentence of about 1-1/2 years and if the fine awarded by the learned trial Judge is increased and the same may be given to the victim as compensation, it will serve the ends of justice.

In view of above, this Appeal is partly allowed. The Judgment and order of conviction dated 01.04.1998 passed by the learned Addl. Sessions Judge, Bhavnagar, in Sessions Case No. 86 of 1997 is hereby confirmed. However, the sentence awarded by the learned Judge is modified to the extent that the appellant - accused is held guilty for the offence u/s 307 of I.P. Code and the sentence which he has undergone, be treated as sentence, on condition that the accused shall pay fine of Rs. 15,000/- and in default of fine, the accused shall undergo sentence which the learned Judge has awarded in his order dated 01.04.1998, instead of Rs. 500/- i/d to undergo RI for 3 months, awarded by the learned Judge. The appellant - accused shall deposit Rs. 15,000/- as fine before the trial Court, within four weeks from the date of this order. If the fine of Rs. 15,000/- is paid by the appellant - accused, the same shall be given to the victim as compensation.

If the appellant - accused fails to pay the amount of fine of Rs. 15,000/- within a period of four weeks from today, then he shall surrender before the Jail authority to undergo his remaining sentence, failing which the trial Court shall issue Non Bailable Warrant to effect his arrest.

Bail Bond shall stand cancelled. Record & Proceedings be sent to the trial Court immediately.