IBRAHIM DIPSINH GARASIA v. STATE — 1993 DIGILAW 15 (GUJ)

J. N. BHATT, J. ( 1 ) THE appellants have questioned the legality and validity of the judgment and order of conviction and sentence passed against them by the Sessions Court at Baroda in Sessions Case No. 171/83 on 10. 2. 1984 holding the accused persons guilty for the offence punishable under section 324 of the Indian Penal Code. The appellants/accused are sentenced to suffer rigorous imprisonment for six months and to pay a fine of Rs. 500 and in default to undergo rigorous imprisonment for two months for the offence punishable under section 324 of the Indian Penal Code. Learned counsel Mr. K. B. Anandjiwala who is appointed as an amicus curie by this court to aid and assist the appellants/accused who has raised the following two contentions: 1 That the prosecution has failed to establish the guilt of the accused under Section 324 of the Indian Penal Code beyond reasonable doubt. 2 That the order of sentence is harsh and excessive and in the alternative the accused persons are entitled to the benefit of probation. Learned A. P. P. Mr. Dave while appearing for the respondent-State has forcefully countenanced the aforesaid two contentions. In order to appreciate the merits of the appeal and the challenge against it it would be expedient at this juncture to have a look at the factual scenario emerging from the record of the present case. Appellants Nos. 1 and 2 are the original accused Nos. 1 and 2 in the aforesaid trial who are hereinafter referred to as accused Nos. 1 and 2 respectively for the sake of convenience and brevity. Accused No. 2 is the owner of a Hotel run in the name of Mugal Hotel in Wadi area of Baroda. Accused No. 1 was a servant working and serving in the said Hotel at the relevant time. The incident in question occurred between 8. 30 A. M. and 9 A. M. on 5. 5. 1983. ( 2 ) ACCORDING to the prosecution case the injured-Ashokbhai Ravjibhai Patel and the complainant one Rakeshbhai Kantilal alongwith two other persons went to the Hotel between 8. 30 A. M. and 9 A. M. for tea. The injured had ordered for two cups of tea and four glasses of water. 5. 1983. ( 2 ) ACCORDING to the prosecution case the injured-Ashokbhai Ravjibhai Patel and the complainant one Rakeshbhai Kantilal alongwith two other persons went to the Hotel between 8. 30 A. M. and 9 A. M. for tea. The injured had ordered for two cups of tea and four glasses of water. It was alleged that accused No. 1 a servant of the said hotel had brought two cups of tea but did not bring water as ordered or asked for by the injured. Therefore the injured reiterated and again requested for service of water. However accused No. 1 told to the injured that water will not be served. It appears that the injured and the other three persons were to take tea outside the hotel and accused No. 1 refused to serve water outside the hotel. The injured thereafter asked the accused No. 1 as to why water was not served as service of water is always given even outside hotel. There were some altercations between the accused No. 1 and the injured and the accused No. 1 became enraged. Therefore accused No. 1 threw a glass of water on the person of the injured-Ashokbhai which caused hurt to the injured on his face. Thereafter two friends of the injured intervened and had caught hold of accused No. 1. In the meantime accused No. 2 the owner of the said Hotel who was attending the counter came near the injured with a knife and inflicted two successive blows on the person of the injured. Thereafter because of intervention of other persons and personnel of S. R. P. the injured was taken to the hospital for treatment and one of the friends of the injured went to Wadi Police Station and lodged the complaint within almost an hour after the incident. ( 3 ) INVESTIGATION was carried out into the said allegations by the police pursuant to the complaint lodged by Rikesh Kantilal and on completion of the investigation both the accused persons were charge sheeted for the offences punishable under Sections 37 323 and 426 read with Section 114 of the Indian Penal Code and also under Section 135 (1) of the Bombay Police Act in the court of the learned Judicial Magistrate First Class Baroda on 27. 10. 1983. 10. 1983. However since the offence under Section 307 of the Indian Penal Code being exclusively triable by the Court of Sessions the learned Magistrate committed the case for trial to the Courts of Sessions at Baroda on 10. 11. 1983. The accused persons were charge-sheeted in the Sessions Court for the offences punishable under Sections 307 326 and 323 of the Indian Penal Code read with Section 114 of the Indian Penal Code and also for the offence under Section 135 of the Bombay Police Act 1951 to which the accused persons pleaded not guilty and claimed to be tried. ( 4 ) IN order to substantial the charges against the accused persons the prosecution relied on the evidence of following 11 prosecution witnesses: P. W. No. Name of the Witness Ex. No. - 1 Rikeshkumar Kantilal 8 2 Dr. Jagdishchandra Kantilal 9 3 Ashokkumar Ravjibhai Patel 11 4 Lalabhai Virchandbhai 12 5 Narendra Vallabhbhai 13 6 Vasantbhai Oghavbhai Patani 16 7 Arjun Devchand Patil 19 8 P. S. I. Mukund P Buch 21 9 Trambak Tulsiram Patil 22 10 Dhanajirao Kashiram Gagtap 23 11 Babubhai Devsibhai Goraiya 24 on appreciation and circumstances and the assessment of the evidence on record the learned Additional Sessions Judge at Baroda found the accused persons guilty for the offence punishable under Section 324 of the Indian Penal Code only and awarded six months rigorous imprisonment and also a fine of Rs. 500 and in default two months rigorous imprisonment on 10. 2. 1984. Hence this appeal under Section 374 of the Code by the accused persons challenging the conviction and sentence order recorded by the learned Additional Sessions Judge al Baroda. ( 5 ) AS regards the first contention raised by the learned counsel for the accused persons it can safely be concluded that it is not sustainable. The prosecution has successfully established the guilt of the accused persons beyond reasonable doubt for the offence punishable under Section 324 of the Indian Penal Code. The evidence of P. W. 3 Ashokkumar Ravjibhai Patel the injured has remained totally unshaken and fully credit-worthy and there is no reason to discard his evidence. Nothing is shown which would warrant the interference of this court in the appreciation of the evidence of the injured made by the learned Additional Sessions Judge. The evidence of P. W. 3 Ashokkumar Ravjibhai Patel the injured has remained totally unshaken and fully credit-worthy and there is no reason to discard his evidence. Nothing is shown which would warrant the interference of this court in the appreciation of the evidence of the injured made by the learned Additional Sessions Judge. Apart from that the reliable evidence of the injured is fully reinforced by two eye witnesses i. e. P. W. 1 Rikeshkumar Kantilal who is examined al Ex. 8 - the complainant and P. W. 4 Lalabhai Virchandbhai who is examined at Ex. 12. Their evidence is fully reinforced by the evidence of Dr. Jagdishchandra Kantilal who is examined at Ex. 9. 1t is very clear from the evidence of the Medical Officer that the injured Ashokkumar had sustained as many as five injuries on his person and most of them were on the vital parts of his body. Considering the entire evidence on record together with the promptitude with which the complaint was lodged and the facts and circumstances emerging from the record of the present case this court is of the opinion that the conclusion recorded by the learned Additional Sessions Judge for the offence under Section 324 of the Indian Penal Code against both the accused persons is fully justified and is required to be affirmed. Therefore the first contention raised by the learned counsel for the accused persons that the prosecution has failed to prove the guilt of the accused persons under Section 324 of the Indian Penal Code beyond reasonable doubt is totally without any substance. Hence the first contention is rejected. ( 6 ) SECONDLY it leads into the field the question of appreciation of the second contention raised before this court by the learned counsel for the appellants/original accused persons. In that it is contended that the accused persons are entitled to the benefit of probation under the Probation of Offenders Act 1958 It is contended that the trial court has committed serious illegality in not observing the provisions of Section 361 of the Code. This submission is also not supported by the facts on record. In that it is contended that the accused persons are entitled to the benefit of probation under the Probation of Offenders Act 1958 It is contended that the trial court has committed serious illegality in not observing the provisions of Section 361 of the Code. This submission is also not supported by the facts on record. It is true that special reasons are required to be recorded in a case where benefit of probation is not given wherein the court could have dealt with the case either under the provisions of Section 360 of the Code or under the provisions of the Probation of Offenders Act. There is no doubt about this proposition of law. At this stage therefore it would be necessary to refer to the provisions of Section 361 of the Code which read as under:"361 Special reasons to be recorded in certain cases- Where in any case the Court could have dealt with (a) an accused person under section 360 or under the provisions of the Probation of Offenders Act 1958 (2u of 1958) or (b) a youthful offender under the Children Act 1960 (60 of 1960) or any other law for the time being in force for the treatment training or rehabilitation of youthful offenders but has not done so it shall record in its judgment the special reasons for not having done so". It is true that special reasons are required to be recorded by the courts for not invoking the provisions of Section 360 of the Code or the provisions of the Probation of Offenders Act wherein the court could have dealt with the case under the said provisions. There is no quarrel about this proposition of law. However a bare perusal of the impugned judgment will indicate that the learned Additional Sessions Judge has recorded special reasons in the judgment for not invoking the provisions of Section 360 of the Code or the provisions of the Probation of Offenders Act. Therefore the contention that special reasons as contemplated under Section 361 of the Code are not mentioned or they are not recorded by the learned Additional Sessions Judge in the judgment as required under Section 61 of the Code is factually incorrect. Therefore this contention is also required to be rejected. Therefore the contention that special reasons as contemplated under Section 361 of the Code are not mentioned or they are not recorded by the learned Additional Sessions Judge in the judgment as required under Section 61 of the Code is factually incorrect. Therefore this contention is also required to be rejected. ( 7 ) AFTER having examined the special reasons recorded by the learned Additional Sessions Judge for non-invoking the provisions of Probation of Offenders Act it can safely be concluded that they are justified and reasonable which would disentitle the accused persons from taking the benefit of probation. The learned Additional Sessions Judge has clearly indicated in the judgment by recording special reasons that the accused persons do not deserve the benefit of probation. It is explicit from the impugned Judgment that the manner and mode in which the blows were inflicted successively and that too on vital parts of the body and also the cause for which the incident occurred and the manner in which the injured even after five blows were inflicted was thrown out have been inter alia considered by the learned Additional Sessions Judge as special reasons for non-invoking the provisions of the Probation of Offenders Act. After having given anxious thoughts to the facts and circumstances emerging from the record of the present case and the special reasons recorded by the learned Additional Sessions Judge in the judgment itself for not giving the benefit of Probation this court is also satisfied that the accused persons are not entitled to the benefit of probation and they are rightly refused the benefit of probation by the trial court. Therefore the contention that the accused persons should have been given benefit of probation is not sustainable and therefore it is rejected. ( 8 ) HOWEVER that is not all. Though the accused persons are not entitled to claim the benefit of probation in the peculiar facts and circumstances emerging from the record of the present case the court is obliged to lake into account the time lag which has elapsed in between. More than nine years period has elapsed. Considering the time factor and the modern trend prevalent in the realm of criminology and penalogy ends of justice will be satisfied if the substantive sentence if rigorous imprisonment of six months is reduced to one month and by raising fine of Rs. 500 to Rs. More than nine years period has elapsed. Considering the time factor and the modern trend prevalent in the realm of criminology and penalogy ends of justice will be satisfied if the substantive sentence if rigorous imprisonment of six months is reduced to one month and by raising fine of Rs. 500 to Rs. 5000 and in default to undergo further rigorous imprisonment for four months and also to pay an amount of Rs. 5000 of fine if paid to the injured P. W. 3 Ashokkumar Ravjibhai Patel by way of compensation under the provisions of Section 357 of the Code. In view of the facts and circumstances narrated hereinbefore while viewed in the light of the relevant case taw discussed hereinbefore the impugned order of conviction under Section 324 of the Indian Penal Code against both the accused persons/appellants herein is required to be confirmed and the impugned order of sentence is required to be partly modified. ( 9 ) IN the result the impugned order of conviction under Section 324 of the Indian Penal Code is confirmed. The order of substantive sentence of rigorous imprisonment for six months for the offence under Section 324 of the Indian Penal Code awarded by the trial court is reduced to one month only. However the sentence of fine of Rs. 500 awarded by the trial court is enhanced to Rs. 5000 and in default to suffer rigorous imprisonment for four months. Thus each of the appellant original accused persons is awarded and decided to suffer rigorous imprisonment for one month (instead of six months) and to pay a fine of Rs. 5000 (by each of the accused) and in default to suffer rigorous imprisonment for four months. An amount of Rs. 5000 out of the total amount of fine if paid shall be paid to the injured Prosecution Witness No. 3 Ashokkumar Ravjibhai Patel by way of compensation under Section 357 of the Code after due verification by the trial court. Appeal is partly allowed accordingly. .