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Judgment
K.S. Jhaveri, J.—The present Criminal Appeal, u/s 374(2) of the Code of Criminal Procedure, has been preferred by the appellants - original accused Nos. 1 to 5, challenging the Judgment and order dated 19.10.2006, passed by the learned Additional Sessions Judge, Fast Track Court No. 5, Panchmahals at Godhra, in Sessions Case No. 97 of 2005.
The facts of the prosecution case is that on 28.9.2004 at about 10.00 p.m. Nanjibhai Pratapbhai gave complaint to the Police Officer of Fatehpura Police Station inter-alia alleging that he had dispute with the accused regarding cultivation of Kharaba land situated near his Survey No. 40 and that the said accused persons were sowing paddy in Kharaba land on that day at about 5.00 p.m. and, therefore, his father asked the accused persons not to sow paddy. Thereupon, accused persons gave abuses and started quarreling. It is alleged in the complaint that accused No. 1 inflicted blow of iron rod on the left hand and left ear of the complainant and caused injury, accused No. 4 Shanker Bhura inflicted iron blow on the left wrist and shoulder of Nathu - brother of the complainant, accused No. 3 Ramesh Salu caused injury on the head of father of the complainant by pelting stone and, therefore, his father has fallen down and accused No. 2 - Salu Gagji pelted stone towards the complainant and, therefore, the complainant and his brother ran away. Thereafter, the complainant lodged complaint before the Police. The police registered the complaint vide CR No. I - 155/2004 against the accused for the offences punishable under Sections 337, 338, 323, 504 and 114 I.P. Code and u/s 135 of the Bombay Police Act. The police started investigation and sent the injured persons to the Hospital for medical treatment and during the treatment Pratap Kalu (father of the complainant) died on 5.9.2004 and, therefore, Section 302 I.P. Code was added in the F.I.R. It is alleged that during investigation the Investigating Officer found that Mangal Salu was also members of the assaulting party and, therefore, joined as accused No. 5 in the commission of offence and Sections 143 and 147 I.P. Code have been added in the complaint. On completion of investigation the charge-sheet was filed before the learned J.M.F.C., Santrampur. As the offence were absolutely triable by a Court of Sessions, the learned J.M.F.C., Santrampur has committed the said case to the Court of Sessions which was registered as Sessions case No. 97 of 2005.
2.1 Thereafter, the charge was framed against the accused for the offence punishable u/s 147, 148, 149, 337, 338, 323, 504 and 302 I.P. Code and u/s 135 of the Bombay Police Act. The accused pleaded not guilty to the charge and claimed to be tried.
2.3 The prosecution has examined following witnesses to prove the case against the accused:
(1) Panch Jorjibhai Nagjibhai, Exh. 14;
(2) Panch Bhalabhai Kalubhai Ganasva, Exh. 24;
(3) Panch Shukrambhai Somabhai Chandana, Exh.26;
(4) Panch Galalbhai Valabhai Ganasava, Ex. 27;
(5) Complainant Nanjibhai Pratapbhai Taviyad, Exh. 26;
(6) Nathubhai Pratapbhai , Exh. 32;
(7) Dr. Jayantilal Jethalal Shrimali, Ex. 36;
(8) Dr. Pravinkumar Narayanbhai Jha, Ex.38;
(9) Dr. Pravina Arvindchandra Thakkar, Ex. 42
(10) Prof. Vinayakrao Patil, F.S.L., Ex. 44;
(11) P.S.O. Jerambhai Rumalbhai, Ex. 48;
(12) I.O. Kasnabhai Hirabhai, Ex. 49;
(13) Panch Mansingbhai Lalabhai Taviad, Ex. 53;
(14) A.S.I. Chandansinh Nanusinh Virpara, Exh. 61;
(15) IO Pramodsinh Fatehsinh Gohil, Exh. 67;
2.4 The prosecution has also produced following documents:
(1) Inquest Panchnama, Ex. 11;
(2) Receipt, Exh.12;
(3) Certificate Ex. 13;
(4) Panchnama of scene of offence Ex. 15;
(5) Map of place of offence, Exh. 23;
(6) Panchnama of Muddamal articles, Ex.25;
(7) Panchnama of land Survey No. 40, Exh. 28;
(8) Complaint, Exh. 30;
(9) Injury Certificate of Pratap Kalu, Exh. 37;
(10) Injury Certificate of Nanji Pratap, Exh.39;
(11) Injury Certificate of Nathu Pratap, Exh. 40;
(12) Injury Certificate of Pratap Kalu, Exh. 41;
(13) Original Medical Certificate, Exh. 43;
(14) Post Mortem Report, Exh. 45;
(15) Copy of Certificate regarding cause of death, Exh. 46;
(16) Seizure Panchnama of Axe, Exh. 54;
(17) Seizure panchnama of iron rod, Exh.55;
(18) Death Report, Exh. 62;
(19) Copy of Wordhy, Exh. 63;
(20) Report of P.S.O., Exh. 64;
(21) Yadi for Post Mortem, Exh. 65;
(22) Yadi written to the Executive Magistrate, Exh. 66;
(23) F.S.L. Report, Exh. 68;
(24) Yadi written to the Medical Officer, Exh. 69;
(25) Copy of notification, Exh.70
After appreciating the documentary as well as oral evidence the learned Additional Sessions Judge, Fast Track Court No. 5, Panchmahals at Godhra, has vide Judgment and order dated 19.10.2006, held the accused Nos. 1 and 4 guilty for the offence punishable u/s 147, 148, 149, 304, 337, 338, 323, 504 and Section 135 of the Bombay Police Act and sentenced them to suffer (i) one year''s R.I. and to pay fine of Rs. 1000/- each i/d to undergo RI for one month respectively for the offence punishable u/s 147 & 148 I.P. Code; (ii) and sentenced them to suffer five year''s RI and to pay fine of Rs. 2000/- each i/d to undergo RI for two months for the offence punishable u/s 149 read with Section 304 I.P. Code.
3.1 The learned Additional Sessions held the accused No. 2 - Salubhai Gagjibhai Ahari for the offences punishable Under Sections 147, 148, 304, 504, 149 read with Section 337, 338, 323, I.P. Code and u/s 135 of the Bombay Police Act, and awarded sentence to undergo one year''s RI and to pay fine of Rs. 1000/- each i/d. to undergo RI for one month respectively for the offence u/s 147 and 148 I.P. Code. The learned Additional Sessions Judge also held the accused No. 2 guilty for the offence punishable u/s 304 I.P. Code and awarded sentence to suffer RI for 10 years and to pay fine of Rs. 5000/- i/d to undergo RI for six months. No separate sentence was awarded for other offences.
3.2 The learned Additional Sessions held the accused No. 3 - Rameshbhai Salubhai Ahari and accused No. 5 - Mangalbhai Salubhai Ahari for the offences punishable u/s 147, 148, 504, 149 read with Section 304, I.P. Code and u/s 135 of the Bombay Police Act, and awarded sentence to undergo one year''s RI and to pay fine of Rs. 1000/- each i/d. to undergo RI for one month respectively for the offence Under Sections 147 and 148 I.P. Code. The learned Additional Sessions Judge also held the accused No. 2 guilty for the offence punishable u/s 149 read with Section 304 I.P. Code and awarded sentence to suffer RI for 7 (seven) years and to pay fine of Rs. 3000/- i/d to undergo RI for three months. No separate sentence was awarded for other offences.
3.3 The learned Judge ordered all the sentence to run concurrently.
Against the said Judgment and order of conviction dated 19.10.2006 passed by the learned Additional Sessions Judge, Fast Track Court No. 5, Panchmahals at Godhra, in Sessions Case No. 97 of 2005, the appellants - original accused have preferred this Criminal Appeal.
We have heard learned Advocate Mr. Barot for the appellants - accused and learned APP Mr. Kodekar, appearing for the respondent - State, at length. We have also gone through the papers and the Judgment and order passed by the trial Court.
Before arguing the matter it was pointed out that the accused No. 3 is absconding and, therefore, request was made to defer the hearing. The request is rejected. However, it will be open for the State to file appropriate proceeding against the absconding accused and may take appropriate action after filing the complaint against the absconding accused.
On going through the judgment and other aspects of the matter, ultimately, Mr. Barot for the appellants has concentrated his arguments only on the quantum of sentence u/s 304 - I I.P. Code.
Learned Counsel for the appellant has taken us through the evidence of two injured witnesses, namely, P.W.5 - Nanjibhai Pratapbhai Taviyad (Exh. 29) and P.W.6 - Nathubhai Pratapbhai (Exh.32) and also the medical evidence of three Medical Officers, namely, P.W.7 - Shri Jayantilal Jethalal Shrimali, Medical Officer (Exh. 36); P.W.8 - Shri Pravinkumar Narayanbhai Jha, Medical Officer, Ex. 38 and P.W.10 - Shri Vinayakrao Vasudevrao Patil, Medical officer, Exh. 44.
8.1 Learned Counsel for the appellant has submitted that in view of the evidence of prosecution witnesses and the presence of accused at the scene of offence, the appellants - accused have very limited scope and the incident has occurred on a spur of moment. There was no intention to kill the deceased in view of the fact that the accused and the complainant are from the same family. He, therefore, contended that even if everything is assumed against the appellants - accused the case will fall u/s 304 Part-II I.P. Code.
8.2 Learned Counsel for the appellant - accused has also contended that it is in view of the family dispute the alleged incident occurred. There was no common object or common intention to kill the deceased. In that view of the matter conviction awarded by the learned Judge may be converted from Section 304 Part - I to Section 304 Part - II I.P. Code.
Learned Counsel Mr. Kodekar has supported the Judgment and order of the learned trial Judge. He contended that the trial Court has rightly held the accused guilty for the offences punishable u/s 304 Part - I I.P.Code and the view taken by the trial Court is proper and no interference is required to be called for. He contended that the prosecution Witnesses No. 5 & 6 have attributed the role of accused No. 2 who was armed with Axe and who has given vital blow and accused No. 3 has also given blow to the deceased and other witnesses, whereas accused No. 5 has given blow to the injured witnesses and accused Nos. 1 and 4 have caused injuries to the witnesses.
We have heard both the learned Counsel for the appellants as well as learned APP for the respondents.
From the evidence, documentary as well as oral, it is clearly established that appellants accused and the complainant are from the same family. Accused persons were allotted Kharaba land situated near the land of the complainant bearing Survey No. 40 and the accused were sowing paddy in the kharaba land and at that time the complainant asked not to sow paddy and the quarrel took place between them. Therefore, the incident occurred on a spur of moment. Therefore, it seems that there was no common object or common intention of the accused to commit offence.
11.1 After going through the evidence, oral as well as documentary so far as conviction of the appellants - accused for the offence punishable u/s 304 I.P. Code is concerned, looking to the facts and circumstances of the case, we are of the opinion that interest of justice would be met if the same is converted into the offence punishable u/s 304 Part-II of I.P. Code and award the sentence accordingly.
11.2 Accused No. 1 - Champabhai Bhurabhai Ahari is held guilty for the offence punishable u/s 304 Part - II and is convicted and sentenced to suffer rigorous imprisonment for 3 years and to pay fine of Rs. 5000/- i/d to undergo RI for two months, instead of RI for five years and to pay fine of Rs. 2000;
11.3 Appellant - accused No. 2 - Salubhai Gangjibhai Ahari is held guilty for the offence punishable u/s 304 Part-II and is convicted and sentenced to suffer rigorous imprisonment for 7 (seven) years and to pay fine of Rs. 10,000/- i/d to undergo RI for 6 (six) months, instead of RI for 10 years and to pay fine of Rs. 5000/-;
11.4 Since appellant - accused No. 3 - Rameshbhai Salubhai Ahari is absconding, the order of conviction and sentence passed by the learned Judge is not disturbed.
11.5 Accused No. 4 - Shankerbhai Bhurabhai Ahari is held guilty for the offence punishable u/s 304 Part - II and is convicted and sentenced to suffer rigorous imprisonment for 3 years and to pay fine of Rs. 5000/- i/d to undergo RI for two months, instead of RI for five years and to pay fine of Rs. 2000;
11.6 Accused No. 5 - Mangalbhai Salubhai Ahari is held guilty for the offence punishable u/s 304 Part - II and is convicted and sentenced to suffer rigorous imprisonment for 5 years and to pay fine of Rs. 5000/- i/d to undergo RI for two months, instead of RI for 7 (seven) years and to pay fine of Rs. 3000;
11.7 All the sentences to run concurrently.
11.8 The amount of fine, if paid, shall be paid to the complainant as compensation.
11.9 Rest of the Judgment and order of trial Court is not disturbed.
11,10 Appellants - accused, those who are on bail, shall surrender themselves before the competent Court within six weeks from today to undergo sentence, failing which the trial Court shall issue Non Bailable warrant against them to effect their arrest.
Accordingly, the appeal is partly allowed to the aforesaid extent only.
Bail Bonds, if any, shall stands cancelled.
Record & proceedings be sent back to the trial Court.