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CR.A/1364/2008 9/ 9 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
APPEAL No. 1364 of 2008
For
Approval and Signature: HONOURABLE
MR.JUSTICE D.H.WAGHELA
HONOURABLE
MR.JUSTICE J.C.UPADHYAYA
=========================================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To be
referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
=========================================================
HAYAT
DAWOOD DAFER & 1 - Appellant(s)
Versus
STATE
OF GUJARAT - Opponent(s)
=========================================================
Appearance
:
MR
SA QURESHI for Appellant(s) : 1 - 2. MR KARTIK PANDYA, APP for Opponent(s) : 1,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE D.H.WAGHELA
and
HONOURABLE
MR.JUSTICE J.C.UPADHYAYA
Date
: 09/09/2011
CAV
JUDGMENT :
(Per
: HONOURABLE MR.JUSTICE J.C.UPADHYAYA)
1. Challenge
in this appeal is to the impugned judgment and order dated 31/1/2008 rendered by the Ld. Addl. Sessions Judge & F.T.C. No.2, Ahmedabad [Rural] at Mirzapur, in Sessions Case No. 43/2006, whereby the appellants herein, who were original accused nos. 2 and 3, came to be convicted for the offences punishable under sections 333, 325 and 186 read with section 114 of the Indian Penal Code [IPC] and each of the appellants accused was sentenced to undergo rigorous imprisonment [RI] for 10 years and fine of Rs.2,000/- each and in default of payment of fine, simple imprisonment [SI] for one month for the offence punishable under section 333 read with section 114 of the IPC, RI for 2 years and fine of Rs.2,000/- each and in default of payment of fine, SI for one month for the offence punishable under section 325 read with section 114 of the IPC and RI for 3 months and fine of Rs.500/- each and in default of payment of fine, SI for 30 days for the offence punishable under section 186 read with section 114 of the IPC. The sentences of imprisonment were ordered to run concurrently and they were entitled to the set-off.
2. The
prosecution case, in nut-shell, is that the incident occurred on 20/12/2004 and according to the prosecution case, the police personnel including deceased policeman Mandanbhai and injured policeman Pravinsinh and others attempted to arrest the original accused no. 1 Juso alias Jusab Allarakhabhai and both the appellants accused and original accused no. 1 - Juso alias Jusab Allarakhabhai resisted the arrest. It is alleged that the original accused no. 1 - Juso alias Jusab Allarakhabhai inflicted a blow with knife on the body of the deceased policeman Mandanbhai and he succumbed to the injuries. So far as role attributed to the appellants original accused nos. 2 and 3 is concerned, they snatched away stick from policeman Pravinsinh and inflicted blow with stick on his left hand and he sustained grievous injury. Mr. B K Rana, PSI lodged FIR regarding the incident. During the course of investigation, statements of material witnesses were recorded and in presence of panchas, necessary panchnamas were prepared including for recovery of weapons. After the investigation was concluded, charge-sheet was filed in the Court of Ld. Judicial Magistrate First Class, Dholka, who committed the case to the Court of Sessions at Ahmedabad [Rural], which was registered as Sessions Case No. 43/2006.
3. Mr.
Shakeel Qureshi, Ld. Advocate for the appellants original accused nos. 2 and 3, at the outset, submitted that the instant appeal is pressed only on the quantum of sentence and the conviction of the appellants recorded by the trial Court for the offences punishable under sections 333, 325 and 186 read with sec. 114 of the IPC is not assailed. It is submitted that so far as the appellants are concerned, they have no criminal antecedent. While fixing the quantum of sentence for the offence punishable under section 333 of the IPC, the trial Court awarded the maximum sentence prescribed without assigning any cogent and convincing reasons. Mr. Qureshi, Ld. Advocate submitted that so far as appellant no. 1 [original accused no. 2] Hayat Daud Dafer is concerned, he is in jail undergoing sentence since about last 4 years; whereas the appellant no. 2 - [original accused no. 3] Kala Daud Dafer remained in jail in connection with this offence for the period of 3 years, 11 months and 13 days and thereafter by order of this Court, his sentence was suspended and was released on bail during the pendency of this appeal. It is, therefore, submitted that considering the facts and circumstances of the case and that so far as the charge of murder is held to be proved by the trial Court only qua the original accused no. 1 - Juso alias Jusab Allarakhabhai and, therefore, lenient view may be taken and the period undergone by them in the jail may be considered to be sufficient sentence. It is submitted that the appellants are hailing from weaker and poor strata of society and they are not capable to pay the total fine of Rs.4,500/- awarded to each of the appellants and, therefore, fine may be suitably reduced.
4. Mr.
Kartik Pandya, Ld. APP for the respondent - State vehemently opposed the submissions advanced on behalf of the appellants that the sentence deserves to be reduced. It is submitted that considering the facts and circumstances of the case, the sentence awarded to the appellants by the trial Court is just and appropriate and the appeal may be dismissed.
5. Since
the appeal is pressed only on the count of sentence, we do not deem it necessary to go into the evidence of the prosecution recorded by the trial Court. The trial Court, after appreciating the evidence on record, held that the prosecution successfully proved commission of the offences punishable under sections 333, 325 and 186 read with sec. 114 of the IPC against the appellants accused nos. 2 and 3. It is further pertinent to note that while fixing the quantum of sentence for the offence punishable under section 333 of the IPC, the trial Court awarded the maximum sentence of imprisonment for 10 years prescribed for the said offence, without assigning any cogent and convincing reasons as to why the maximum sentence is required to be awarded. It is further pertinent to note that as per the role attributed to the appellants, they caused grievous injury to policeman PW 12 Pravinsinh Pratapsinh, as according to the evidence on record, Pravinsinh was caught hold of by the appellant accused no. 1 Hayat Daud and the appellant no. 2 - Kava Daud inflicted blow with stick on the left hand of Pravinsinh. It is further pertinent to note that for the said injury, both the appellants came to be convicted for the offence causing grievous hurt to public servant punishable under section 333 of the IPC and for causing grievous hurt punishable under section 325 of the IPC. For causing grievous hurt punishable under section 325 of the IPC the trial Court awarded sentence of RI for 2 years.
6. In
the above view of the matter and considering the facts and circumstances of the case and the submissions advanced on behalf of both the sides, we are of the considered opinion that the period undergone by each of the appellants in jail in this matter for the offences punishable under sections 333, 325 and 186 read with section 114 of the IPC shall be the adequate sentence of imprisonment.
6.1. Now
so far as the fine is concerned, for the offence punishable under section 333 read with section 114 of the IPC, the trial Court imposed the fine of Rs.2,000/- and in default of payment of fine, SI for one month. The same deserves to be modified and reduced and each of the appellants shall pay fine of Rs.500/- and in default of payment of fine, shall undergo SI for one month for the said offence. For the offence punishable under section 325 read with section 114 of the IPC, the trial Court imposed the fine of Rs.2,000/- and in default of payment of fine, the appellants were ordered to undergo SI for one month. This is required to be modified and reduced and the appellants shall pay fine of Rs.500/- each and in default of payment of fine, the appellants shall further undergo SI for one month for the said offence. The trial Court imposed fine of Rs.500/- each to the appellants and in default of payment of fine, the appellants were directed to further undergo SI for one month for the offence punishable under section 186 read with section 114 of the IPC. The same is required to be modified and reduced and the appellants shall pay fine of Rs.250/- each and in default of payment of fine, shall further undergo SI for 15 days.
7. For
the foregoing reasons, the appeal is partly allowed on the count of sentence only. The sentence awarded by the trial Court to the appellants for the offence punishable under section 333 read with section 114 of the IPC to undergo RI for 10 years and to pay fine of Rs.2,000/- and in default of payment of fine, SI for one month and for the offence punishable under section 325 read with section 114 of the IPC to undergo RI for 2 years and to pay fine of Rs.2,000/- and in default of payment of fine, SI for one month and for the offence punishable under section 186 read with section 114 of the IPC to undergo RI for 3 months and to pay fine of Rs.500/- and in default of payment of fine, SI for one month, is modified and reduced to the period already undergone by each of the appellants accused in jail in this matter and to pay fine of Rs.500/- each and in default of payment of fine, SI for one month for the offence punishable under section 333 read with section 114 of the IPC, Rs.500/- each and in default of payment of fine, SI for one month for the offence punishable under section 325 read with section 114 of the IPC and Rs.250/- each and in default of payment of fine, SI for 15 days for the offence punishable under section 186 read with section 114 of the IPC.
[
D.H. WAGHELA, J. ]
[
J.C. UPADHYAYA, J.]
*
Pansala.
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