Dashrathbhai Rajibhai Parmar and Others vs State of Gujarat

Z.K. Saiyed, J.—The appellants have preferred this appeal u/s 374 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the Code for brevity) challenging the order of conviction passed by the learned Additional Sessions Judge, Godhra on 18th October, 1994 in Sessions Case No. 131 of 1993 convicting the appellants - original accused of the charges of commission of offence punishable u/s 304 and 114 of the Indian Penal Code.

The facts in brief leading to filing of the present appeal deserves to be set out as under:

It is the case of the prosecution that on 28.3.1993 at about 11:30 p.m., the deceased Fatabhai Chandubhai was going on road at village Idea and he was stopped by the appellants - accused. Under the guise of some allegations made by the deceased against the accused, the deceased was assaulted by the appellant No. 1 by way of waist belt and appellants No. 2 and 3 had beaten the accused by fists and kicks blows and appellant No. 1 caused burn injury by burning handkerchief on the back of deceased. During the course of medical treatment, the deceased died on 30.3.1993. The complaint was lodged against the accused for the offence punishable under Sections 304(II) read with Section 114 of Indian Penal Code.

The accused pleaded not guilty and claimed to be tried the case. Further statement of the accused recorded under the provisions of Section 313 of the Code of Criminal Proceudre. During the course of trial, following witnesses from the prosecution side, have been examined before the learned Sessions Judge.

P.W.1 - Rangitbhai Chandubhai at Exhibit 14.

P.W.2 - Ratnabhai Kalubhai Parmart Exhibit 16.

P.W.3 - Jashvantsinh Shabhsinh Exhibit 17.

P.W.4 - Dr. Ms. Priti Keshrisinh Jadav Exhibit 19.

P.W.5 - Executive Magistrate Bansilal Mohanlal Kadia

Exhibit 21

P.W.6 - Dr. Kiranbhai Bhulabhai Patel Exhibit 25

P.W.7 - Police Head Const. Mansukhbhai Saybahai Exh. 27.

P.W.8 - Ishwarhai Chandubhai at Exhibit 30.

P.W.9 - Arvindbhai Pratapsing Exhibit 31.

P.W.10 - Police Head Const. Ramjibhai Bodharbhai Exhibit 32

P.W.11 - P.S.I. Ranjeetsinh Naransing Godhi Exhibit 33.

The documentary evidence produced before the learned Sessions Judge, are as under:

Exhibit 8 : Inquest Panchnama

Exhibit 9 : Panchnama - Scene of Offence.

Exhibit 10 : Panchanama regarding cloth recovered from

dead body.

Exhibit 11 : Dying Declaration before police.

Exhibit 12 : List of the map

Exhibit 13 : Map regarding scene of offence.

Exhibit 18 : Muddamal Panchnama by accused No. 1.

Exhibit 22 : Police Yadi for of Dying Declaration before

Executive Magistrate.

Exhibit 23

and 24 : Dying Declaration of deceased

Exhibit 26 : Injury certificate issued by Doctor.

Exhibit 28 : Original complaint given by Org. complainant.

After hearing both the parties, the learned Additional Sessions Judge, Godhra vide judgment and order dated 18th October, 1994 in Sessions Case No. 131 of 1993, was pleased to held guilty the accused for the offence punishable under Sections 302(II) and 114 of the Indian Penal Code and sentenced them to undergo S.I. for five years and to pay a fine of Rs. 250/-, in default, S.I. for 15 days.

Being aggrieved and dissatisfied with the said order, the appellants preferred present appeal.

Heard Mr. Buddhbhatti , learned Counsel appearing on of the appellants and learned APP Mr. R.C. Kodekar appearing on behalf of the respondent  State.

Learned Counsel Mr. Buddhbhatti has submitted that the impugned order of conviction being erroneous and contrary to the record of the case, deserves to be quashed and set aside. He has submitted that the learned Sessions Judge has not considered the defence of the present appellants, while passing the judgment and order. He has also contended that the FIR is filed late i.e. after two days and there is no explanation offered by the prosecution for delay. He has argued that before the learned Sessions Judge, the prosecution has come out with two stories: one is accidental fall and another is inflicting of injuries. The credibility of the deceased is to be tested on broad probability of the facts. He has also vehemently argued that the identity of the accused is not clearly identified as there were so many persons of the same names and the medical evidence is directly in conflict with the other evidence on record. It is also argued that the oral dying declaration of the deceased is highly doubtful, as the deceased was unconscious. Also the written dying declaration before the Executive Magistrate is highly doubtful. He has also submitted that the learned Sessions Judge ought to have considered the material aspect that the there was no motive to assault the deceased or to commit the murder on the part of the accused. The story narrated to the mother of the deceased by the owner of the field was that the deceased was sustained injuries by falling from tree. He has also submitted that he is arguing this matter only on the point of quantum of punishment. He has lastly contended that the undergone period is required to be considered as sentence and the appeal may be allowed partly.

Shri R.C. Kodekar learned APP appearing for the respondent-State has supported the judgment and order passed by the elarend Sessions Judge. But the learned Counsel Mr. Buddhbhatti appearing on behalf of the appellants  accused has fairly admitted that he is making only submission regarding the quantum of punishment and sentence may be reduced, therefore, the learned APP submitted that State has no objection, if the sentence may be reduced.

This Court has perused the records and proceedings of the Trial Court and heard the learned Counsel of the respective parties at length. On perusal of the record and the submission made by both the learned Counsel, I am of the opinion that the decision of the Trial Court does not suffer from any infirmity what so ever. The appellants have failed in establishing that the decision of the Trial Court suffers from any perversity. On the contrary the decision of the Trial Court is just and proper and it is based upon the evidence and it is after proper appreciation. The Trial Court has rightly come to the conclusion that the appellants has failed in establishing its case beyond reasonable doubt and, therefore, the order of acquittal dated 18.10.1994 passed by learned Additional Sessions Judge, Godhra in Sessions Case No. 131 of 1993 deserves to be confirmed. But considering the submissions made by the learned Counsel Mr. Buddhbhatti appearing on behalf of the appellants  accused that the Trial Judge convicted the accused for the 5 years by passing the judgment and order and the appellants- accused have already passed 2 and half years i.e. half period in jail and he has also admitted that there is no reason to say regarding the reasons assigned the judgment and order passed by the learned Sessions Judge, but looking to the young age of the appellants - accused, the sentence may be reduced. So in that circumstances, I am of the opinion that the submissions made by the learned Counsel appearing on behalf of the appellants - accused is required to be considered and the submissions are supported by the learned APP Mr. Kodekar and I am inclined to modify the order of the learned Sessions Judge by partly allowing this appeal by holding that the undergone period of the sentence of the accused shall be considered as sentence and the rest order except sentence shall be remained unaltered.

In view of the above discussion, the Appeal is partly allowed. The judgment and order dated 18.10.1994 passed by the learned Additional Sessions Judge, Panchmahals at Godhra in Sessions Case No. 131 of 1993, is hereby reduced to the extent that the sentence, which the appellants have already undergone shall be treated as sentence. Rest of the judgment of the learned Sessions Court in so far as amount of fine etc., shall remain unaltered. Bail bonds, if any, shall stands cancelled. R & P to be sent back to the trial Court, forthwith.