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Judgment
K.S. Jhaveri, J.—Heard learned Additional Public Prosecutor for the appellant - State Mr. L.R. Pujari and learned Advocate Mr. for the respondents No. 1 - 4 Mr. Hardik K. Raval.
By way of Criminal Appeal No. 1504/2006 for enhancement of sentence of original accused Nos. 1 to 4, the Appellant - State has felt aggrieved by the judgment and order of sentence dated 31.05.2005 of the learned Presiding Officer, Fast Track Court No. 6, Jamnagar in Special Case No. 20/2002 whereby the respondents therein - original accused Nos. 1 to 4 were convicted and sentenced to undergo the following:-
U/s. 324 of the IPC (accused No. 1)
Simple imprisonment for 6 months and fine of Rs. 2,000/-, in default simple imprisonment for one month.
U/s. 324 of the IPC (accused No. 2)
Simple imprisonment for six months and fine of Rs. 2,000/-, in default simple imprisonment for one month.
U/s. 326 of the IPC (accused No. 2)
Rigorous imprisonment for 3 years and fine of Rs. 7,000/-, in default simple imprisonment for three months.
U/s. 325 of the IPC (accused No. 3)
Simple imprisonment for one year and fine of Rs. 3,000/-, in default simple imprisonment for one month.
U/s. 326 of the IPC (accused No. 4)
Rigorous imprisonment for three years and fine of Rs. 7,000/-, in default simple imprisonment for three months.
The respondents accused were acquitted of the offences punishable under Sections 143, 144, 147, 148, 307, 504 read with 149 in alternate 114 of the Indian Penal Code and under Sections 3(1)(10), 3(1)(15), 3(2)(5) and 6 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act and also under Sections 135(1) of the Bombay Police Act read with Section 149 in alternate 114 of the Indian Penal Code, against which, the State has filed Criminal Appeal No. 1507/2006 challenging the judgment and order of all the accused whereas Criminal Appeal No. 1442/2005 has been preferred by the original accused No. 1, 2, 3 and 4 challenging their conviction and sentence, as stated above.
The case in brief and the incident which occurred on 11.01.2002 are as under:-
3.1. Complainant Vijayaben W/o. Karamshi Bhikhabhai on 12.02.2002 lodged a complaint to the effect that she was doing labour work and staying with her family, i.e. her two children and husband at Mota Thavaria and that she had built a house on the forest land. The original - accused No. 1 was staying opposite to her house. It is further the case of the prosecution that there was an altercation between the two prior to two months from the date of the incident. It is alleged that on the said day at about 10.00 p.m., when the complainant was with her husband and children at her home, all the accused came there with their respective weapons and gave blows to the complainant, made derogatory remarks about their caste and also asked them as to ''why they have not gone to stay to another place?'' Allegedly, the accused No. 2 gave a pipe blow, the accused No. 3 came with a dhariya, the accused No. 4 came with an iron pipe and the accused No. 1 came with the stick. After causing severe injuries, all the accused went away. The husband of the complainant became unconscious and he was admitted in the hospital. On the above stated information, the accused were charged as stated above.
3.2. Pursuant to the complaint, investigation was carried out, and after having found sufficient material, the accused came to be charge-sheeted. As the case was triable by a Special Court, the case was committed to the Special Court at Jamnagar.
3.3. The accused pleaded not guilty to the charge and claimed to be tried and at the end of the trial, the learned Presiding Officer passed the order as above.
3.4. In support of its case, the prosecution examined the following witnesses:-
3.5. The prosecution also relied upon various documentary evidence, some of them are:-
Learned Additional Public Prosecutor Mr. L.R. Pujari for the State has submitted that the learned Judge ought to have appreciated the version of the complainant, her husband Karamshibhai as well as the medical officer and the certificate given by the medical officer which establishes the grievous hurt on the vital parts of the body of injured Karamshibhai and these injuries are sufficient in the ordinary course of nature to cause death. It is further submitted that the learned Judge erroneously altered the conviction under which the respondents accused were convicted instead of Section 307 which is improper. That the nature and seriousness of the offence are of aggravated category and the evidence led before the Court clearly establishes the guilt of the accused inasmuch as the intention and the knowledge of the accused persons were to inflict the serious blows to the injured on the vital parts of the body. It is further submitted that some complaints were pending against the injured witnesses and the accused persons cannot take law in their hands by attacking the complainant with deadly weapons like pipe, dharia etc. Considering the above, it is submitted that this is a fit case which requires interference of this Court and the judgment and order of the learned Judge be upturned and the punishment qua the accused be enhanced and also that the accused be convicted for the offences under which the learned Presiding Officer has acquitted them.
Learned Advocate for the accused Nos. 1-4 Mr. Hardik Raval has submitted that, on correct appreciation of the evidence on record, it has been successfully established that the place of offence was not the same as alleged by the prosecution. It is further contended that in view of the evidence on record, the sentence is required to be reduced and also considering the fact that the accused have left the village and now they are not residing there, a sympathetic view may be taken. It is further submitted that the period of imprisonment may be considered as the period of sentence and it may be treated as having been undergone.
We have heard the learned Advocates for the parties and perused the records of the case. While going through the medical evidence, it surfaces on record that the injured witnesses had taken treatment and the hospitalization ranged from three days to about eighteen days. It is very clear from the record of the case that the accused had gathered at the residence of the complainant and the incident had occurred. Though a submission is canvassed that there were serious contradictions in the evidence of the complainant, from the evidence it cannot be said that the accused have not committed the said acts. Further, we have considered the evidence of the complainant (PW 4), her husband (PW 5), Pravinbhai (PW 22) and various other eye witnesses, wherein detailed description surfaces qua the incident, the shifting of the injured to the hospital etc. Thus, considering the above, it can be said that the presence of the accused is proved beyond reasonable doubt. Hence, this Court is in full agreement with the reasons given and the findings recorded by the Trial Court while convicting and sentencing the accused. Under the circumstances, we are of the opinion that Criminal Appeal No. 1504/2006 and Criminal Appeal No. 1507/2006 are devoid of merits and stands dismissed.
Criminal Appeal No. 1442/2005 is preferred by the original accused against the judgment and order of sentence and conviction. The incident occurred in the year 2002 and almost 13 years have passed. The accused No. 1 is a senior citizen. We are of the opinion that this is a case where the Appeal preferred by the State sought for enhancement of sentence should have been allowed. However, considering the old age of the accused No. 1 as also the time that has elapsed, we are not inclined to interfere with the judgment and order dated 31.05.2005 of the learned Presiding Officer, Fast Track Court No. 6, Jamnagar in Special Criminal Case No. 20/2002. The State is at liberty to consider for remission the case of the accused No. 1, if so found fit.
All the accused shall surrender within a period of ten (10) weeks from today, failing which the concerned Trial Court shall issue non-bailable warrant in the name of the accused to secure their presence to serve the remaining period of sentence. Bail and bail bond, if any, stands cancelled. Record and proceedings be sent to the concerned Trial Court forthwith.