Farukbhai Allarakhabhai Miyana vs State of Gujarat

Z.K. Saiyed, J.—By way of present appeal, filed u/s 374(2) of the Code of Criminal Procedure, 1973, the Appellant has challenged the judgment and order of conviction and sentence dated 08th September, 2010 passed by the learned Sessions Judge, Surendranagar, in Sessions Case No. 22 of 2009, whereby the learned Judge has convicted the Appellant-accused under Sections 304 Part II of the Indian Penal Code.

It is the case of the prosecution that on 13th December, 2008 at about 11.30 hours the Appellant-original accused No. 1 had entered into the complainant''s house armed with dharia and knife. When the complainant asked the complainant about his identity, the Appellant replied that he has some work with her husband. Therefore, the complainant opened the door. When the complainant seen the Appellant armed with dharia and knife, she immediately closed the door. Thereafter, the Appellant started knocking the door forcibly and also had given a dharia blow on the door. It is the case of the prosecution that therefore, the door stopper had broken out and door opened. It is further the case of the prosecution that the Appellant has stepped into the complainant''s house and placed his hands on the chest of the complainant. Therefore, the complainant was shouting loudly and rushed towards his father''s house, who is residing nearby. On hearing shout of the complainant, father of the complainant came outside the house. It is the case of the prosecution that at that point of time, father of the Appellant, i.e. original accused No. 2, had given a stick blow to the father of the complainant from reverse side and the present Appellant had given a dharia blow to the father of the complainant. Subsequently, father of the complainant taken to the hospital and was given primary treatment. It is further the case of the prosecution that on 08th January, 2009 father of the complainant died. Therefore, a complaint to the said effect came to be registered with Joravarnagar Police Station on 10th January, 2009, which is registered as CR No. I-2 of 2009 for the offence punishable under Sections 452, 354, 302 and 114 of the Indian Penal Code.

Thereafter, as the case was exclusively triable by the Court of Sessions, the same was transferred to the Sessions Court, Surendranagar. Thereafter, charge was framed by the Sessions Court against the accused persons.

Thereafter the trial was conducted before the learned Judge. To prove the case of the prosecution, prosecution has examined 13 witnesses and also produced documentary evidence on record.

Thereafter, on completion of evidence by prosecution, statement of accused persons u/s 313 of the Code of Criminal Procedure, 1973 came to be recorded wherein the accused persons have denied the case filed against them and submitted that a false case is filed against them.

After hearing both the sides, the learned Sessions Judge, Surendranagar by his order dated 08th September, 2010 passed in Sessions Case No. 22 of 2009, convicted the Appellant-original accused No. 1 for the offence punishable u/s 304 Part II as stated above and acquitted the original accused No. 2 of the charges levelled against him.

Being aggrieved by and dissatisfied with the said judgment and order of conviction and sentence dated 08th September, 2010 passed by the learned Sessions Judge, Surendranagar, the Appellant hereinabove has preferred the present Criminal Appeal before this Court.

Heard Mr. Ashish Dagli, learned Counsel for the Appellant and Mr. H.L. Jani, learned Additional Public Prosecutor for the Respondent-State.

Mr. Dagli has read the charge at Exhibit 5 and contended that the present Appellant is convicted for the offence punishable u/s 304 Part II of the Indian Penal Code and is acquitted from the offence punishable under Sections 452, 376 and 302 of the Indian Penal Code. He has also contended that the prosecution has failed to prove the case beyond reasonable doubt against the Appellant. Mr. Dagli has read the Jail Report produced on record by Mr. H.L. Jani, learned Additional Public Prosecutor and contended that the Appellant has completed more than half sentence. He has further contended that looking to the facts of the case as well as evidence produced on record, conviction imposed upon the Appellant is very harsh. He has also contended that the Appellant is behind the bars for sufficient period. He has also contended that he is not arguing the matter on merits, but arguing the matter only for the purpose of quantum. He has also contended that the Appellant is a young man and is the only bread winner for his family and therefore, lenient view is required to be taken in the matter. He, therefore, contended that therefore, the Appellant is required to be set at liberty by reducing the sentence imposed upon him.

Heard Mr. H.L. Jani, learned Additional Public Prosecutor for the Respondent-State. He has supported the judgment and order of conviction passed by the learned Judge. He has contended that looking to the charge framed against the Appellant, order passed by the learned Judge is absolutely just and proper. He has also read the documentary evidence produced on record and contended that learned Judge has not committed any error in convicting the Appellant-accused. He, therefore, contended that the present appeal is required to be dismissed.

I have gone through papers produced before me and the judgment and order passed by the learned Judge. I have also perused the oral as well as documentary evidence led before the learned Judge and also considered the submissions made by learned Counsel for the parties.

It appears from the papers that the Appellant was acquitted from the offence punishable u/s 302 of the Indian Penal Code. Looking to the facts and circumstances of the case I am of the opinion that conviction imposed upon the Appellant is very harsh. I am of the opinion that when the Appellant has already undergone half of the sentence, if the sentence already undergone by the Appellant-convict may be treated as sentence, same would meet with the ends of justice. Even looking to the submissions advanced by the learned Counsel for the Appellant and circumstances of the case, sentence imposed upon the Appellant is required to be reduced and modified on the ground of sympathy also.

Hence, in view of the foregoing reasons, present appeal is partly allowed. The judgment and order of conviction dated 08th September, 2010 passed by the learned Sessions Judge, Surendranagar, in Sessions Case No. 22 of 2009, is hereby confirmed. However, the judgment and order of sentence dated 08th September, 2010 passed by the learned Sessions Judge, Surendranagar, in Sessions Case No. 22 of 2009 is hereby reduced and modified to the extent of sentence which the Appellant-accused has already undergone. The Appellant-accused is in jail. He is directed to set at liberty forthwith, if not required in any other case. Rest of the judgment and order dated 08th September, 2010 shall remain unaltered. Record and Proceedings, if any, be sent back to the trial Court concerned, forthwith.