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2015 DIGILAW 1164 (GUJ)

Lilabhai Pashabhai Raval v. State of Gujarat

2015-11-04

K.M.THAKER

body2015
JUDGMENT K.M. THAKER, J. 1. Heard Mr. Vaishya, learned advocate for the appellant and Mr. Dabhi, learned APP for the respondent-State. 2. The appellant has taken out present appeal against the judgment and order dated 31.3.2006 passed by learned Additional Sessions Judge, 2nd Fast Track Court, Deesa in Sessions Case No. 45 of 2002. 3. By the impugned judgment, the appellant is convicted for the offence punishable under Section 325 of the Indian Penal Code. The appellant herein and other accused person were charged for commission of offence punishable under Sections 307 and 34 of Indian Penal Code and Section 135 of the Bombay Police Act. By the judgment impugned in present appeal, the accused Nos. 2 to 4 are acquitted from the charge of offence punishable under Section 307 and Section 34 of Indian Penal Code by giving benefit of doubt, whereas the accused No. 1 (i.e. present appellant) is convicted for the offence punishable under Section 325 of Indian Penal Code. The accused No. 1 is not convicted for the offence punishable under Section 307 and Section 34 of Indian Penal Code. The learned trial Court has held that the prosecution failed to establish that the intention of the accused No. 1 was to cause death of the injured person. In the result, the learned trial Court convicted the accused No. 1 for offence punishable under Section 325 of Indian Penal Code and awarded the sentence as mentioned above. Aggrieved by the judgment and conviction as well as sentence, the appellant has taken out present appeal. 4. Bereft of other details, the facts of present case can be summarized thus:- 4.1 Some verbal altercations took place between the two accused persons and the complainant and other friends of the complainant. The verbal altercations developed into scuffle. The dispute allegedly arose with regard to the demand for rickshaw fare made by the victim-injured. The prosecution put-up the case before the learned trial Court that the injured-victim demanded rickshaw fare from the accused persons. The accused persons instead of paying rickshaw fare, started verbal altercations with the injured person and abused him and when the dispute developed into scuffle, the accused persons allegedly hit the injured person with stick blows at the vital part of the body of the injured person. The accused persons instead of paying rickshaw fare, started verbal altercations with the injured person and abused him and when the dispute developed into scuffle, the accused persons allegedly hit the injured person with stick blows at the vital part of the body of the injured person. On account of the assault, the injured was hurt and he received grievous injuries, and he had to be rushed to the hospital. Due to assault and blows allegedly inflicted by the accused persons, the injured person would have succumbed to death. On such allegations, the criminal case was filed which was committed to the sessions Court. The Sessions Court framed charge at Exh. 6. The statement of the accused persons were recorded. The accused persons pleaded not guilty and claimed to be tried. Consequently, the trial ensued. During the trial, the prosecution examined 13 witnesses and also placed on record and relied on, 14 documents. 4.2 After the stage of evidence was concluded, further statement of the accused persons was recorded by learned trial Court under Section 313 of the Code. All incriminating facts, material and circumstances were brought to the notice of the accused persons by learned trial Court. Except maintaining denial, the accused persons did not offer any explanation or reply at the time when further statement was recorded. Consequently, after considering the submissions by learned counsel for the accused and learned public prosecutor and upon considering the evidence on record, the learned trial Court passed the judgment dated 31.3.2006. The learned trial Court recorded that the prosecution failed to prove the offence against the accused persons No. 2 to 4 and the said accused persons No. 2 to 4 are entitled for benefit of doubt so far as charge of offence punishable under Section 307 read with Section 34 of Indian Penal Code is concerned. Consequently, the learned trial Court granted benefit of doubt to the accused persons Nos. 2, 3 and 4. Upon appreciation of evidence, the learned trial Court found that the charge of commission of offence punishable under Sections 307 and 34 is not established against accused No. 1, however, offence punishable under Section 325 of Indian Penal Code is established against the accused No. 1. 2, 3 and 4. Upon appreciation of evidence, the learned trial Court found that the charge of commission of offence punishable under Sections 307 and 34 is not established against accused No. 1, however, offence punishable under Section 325 of Indian Penal Code is established against the accused No. 1. Having reached to such conclusion, the learned trial Court convicted the accused No. 1 for offence punishable under Section 325 of Indian Penal Code and sentenced him to undergo rigorous imprisonment for 3 years and to pay fine of Rs. 200/-. The accused No. 1 is aggrieved by said decision and judgment. Hence, this appeal. 4.3 From the record, it appears that the appellant has not paid the fine. 5. During the hearing of present appeal, initially, the learned counsel for the appellant made some submissions so as to assail the judgment dated 31.3.2006 passed by the learned trial Court in Sessions Case No. 45 of 2002, however, subsequently, and upon noticing the evidence, the learned counsel for the appellant abandoned the submissions on merits and submitted that the learned trial Court failed to consider that this is first offence by the appellant and in that view of the matter, the appellant ought to have been granted benefit of probation under the Probation of Offenders Act, 1958 (hereinafter referred to as the Act). 6. Learned counsel for the appellant relied on the provisions under Sections 3 and 4 of the Act and submitted that having regard to the facts of the case and considering the fact that this is first offence by the appellant and also considering the gravity of the offence and nature of injury, this Court may accept the request of the appellant and grant benefit of probation under the Act. 7. The learned advocate for the appellant relied on the decision in case of Bharatbhai Somabhai Parmar vs. State of Gujarat, 1992 (1) GLH (UJ4) 9 and he submitted that on condition of payment of compensation, the benefit of probation may be granted. 8. Relying on the said decision, the learned counsel for the appellant submitted that the appellant is ready and willing to pay compensation in sum of Rs. 8. Relying on the said decision, the learned counsel for the appellant submitted that the appellant is ready and willing to pay compensation in sum of Rs. 15,000/- to the injured person and that the appellant would deposit the amount of compensation before the learned trial Court which may be paid to the injured person and on such condition, i.e. on condition that the appellant pay compensation in sum of Rs. 15,000/- the benefit under the Act may be granted. 9. So as to support the said submission and request, the learned counsel for the appellant has tendered an affidavit made by the appellant (who is presently enlarged on bail) stipulating, undertaking and declaring that he shall pay to the injured person a sum of Rs. 15,000/- towards compensation for the purpose of probation. 10. Learned counsel for the appellant submitted that today the appellant as well as appellant's mother are present in the Court and the appellant undertakes that he will not indulge into and not repeat such conduct or behavior in future and that on payment of compensation, benefit of probation may be granted since the appellant is the only person to look after the family. 11. In view of the said request by the appellant, the Court had called for the report of the Probation Officer. 11.1 In pursuance of and in compliance of the direction, the Probation Officer submitted his report to the registry. The registry placed the sealed cover containing report of the Probation Officer on record of this appeal. Therefore, the Court directed the Court Master to open the sealed cover containing report of the Probation Officer. 12. This Court has taken into consideration the report of the Probation Officer. The details mentioned by the Probation Officer in his report are in favour of the appellant and support the submission by the learned counsel for the appellant. 13. The Probation Officer has reported that the conduct and behavior of the appellant are good and any offence prior to the incident for which the proceedings of Sessions Case No. 45 of 2002 commenced or at any time thereafter is not filed against the appellant and the appellant is not involved in any offence and any offence is not registered against the appellant. It is also mentioned that the appellant is earning his livelihood as casual laborer and that the appellant is married and has three children and he takes care of his family. 14. In the backdrop of the said report by the Probation Officer, the Court also considered the medical certificate dated 14.3.2011 issued by the doctor (who examined the injured person) wherein the doctor has described the injury to the injured person. The remarks by the doctor in the said injury certificate reads thus:- "(1) Active bleeding from left ear is seen. (2) Swelling on left parietal and temporal region of read/s is seen." 14.1 From the deposition by PW No. 1 the doctor who examined and treated the injured person - it has emerged that according to the doctor, the injured person had swelling on left temporal region and the injured person was bleeding from left ear. According to the opinion of the doctor, the injury was caused by hard and blunt substance. In cross-examination, the PW No. 1 accepted that the swelling could have been measured, however, while he examined the patient (i.e. the injured person treated by him), he had not measured the swelling though CT scan and X-ray were taken out. The PW No. 1 also accepted in his deposition that the injury No. 1 (i.e. bleeding from left ear) was probably consequential and it occurred on account of the injury No. 2. The PW No. 1 also mentioned in his deposition that the injured person or the persons who brought the injured person to the hospital did not mention history of the incident. 14.2 The prosecution examined other doctor - PW No. 4 whose evidence is on the similar line as the evidence of PW No. 1. The doctor - PW No. 4 described two injuries. He also mentioned that the injured person had also suffered fracture on left temporal region. He also mentioned in his deposition that the type of injury which the injured persons suffered can be caused by hard and blunt substance. The doctor who was examined by the prosecution is PW No. 9 who said in his deposition that there were no other internal injuries. From the material on record, it appears that the injured person was not required to be admitted as indoor patient to undergo the treatment and he received the treatment as outdoor patient. 15. The doctor who was examined by the prosecution is PW No. 9 who said in his deposition that there were no other internal injuries. From the material on record, it appears that the injured person was not required to be admitted as indoor patient to undergo the treatment and he received the treatment as outdoor patient. 15. On examination of the other evidence on record, it has emerged that the panch witness turned hostile. However, from the deposition by PW No. 1 and PW No. 4 the injury to the injured person is established and the conclusion by the learned trial Court that the injured person received and suffered injuries on account of the scuffle during which the appellant had inflicted the blows with sticks is also established. 15.1 In light of the evidence of PW No. 1, PW No. 4, PW No. 8, PW No. 9 and PW No. 12, the occurrence of the incident, the fact that the assault was caused and blows were inflicted to the injured person on account of which he received the injuries (certified by the doctor) are established and in light of the said evidence, the conclusion recorded by the learned trial Court cannot be faulted. 16. In light of the facts and circumstances of the case and in view of the evidence on record, the conclusion by the learned trial Court holding accused No. 1 guilty for offence punishable under Section 325 cannot be faulted. The said conclusion by the learned trial Court is based on the evidence available on record. 17. So far as the sentence is concerned, as mentioned earlier, learned advocate for the appellant submitted that this is first offence by the appellant and neither in the past nor after present offence, the appellant is involved in any other incident or offence. Learned advocate for the appellant submitted that however these facts are not considered by the learned trial Court. He submitted that while determining and awarding the sentence, the learned trial Court ought to have considered the provisions under the Probation of Offenders Act, 1958 and in the facts of the case ought to have granted benefit of probation. Learned counsel for the appellant submitted that since the said aspect is not considered by the learned trial Court, this Court may consider the same and the said benefit may be granted. 18. Learned counsel for the appellant submitted that since the said aspect is not considered by the learned trial Court, this Court may consider the same and the said benefit may be granted. 18. As mentioned earlier, the report of the Probation Officer is supported by the request of learned advocate for the appellant. In the facts of the case, the Court is of the view that the appellant deserves to be granted the benefit of probation. Having considered the certificates issued by the doctors who examined and treated the injured person, it appears that the injury was not such that the benefit of probation should be denied to the appellant. Besides this, the appellant has also offered and stated that he is ready to pay compensation in the sum of Rs. 15,000/- to the injured person. 19. On considering the report of the Probation Officer and the injury certificate as well as the facts of the case and the evidence, the Court is of the view that the request by the learned counsel for the appellant deserves to be accepted and granted, more particularly in view of the fact that the appellant has also stipulated that he shall pay Rs. 15,000/- as compensation to the injured person and the said amount shall be deposited by him before the learned trial Court. Learned counsel for the appellant requested for some time to enable the appellant to deposit the amount. 20. In view of the foregoing discussion and for the reasons mentioned above, the appellant's appeal i.e. Criminal Appeal No. 799 of 2006 deserves to be partly allowed and therefore, it is hereby partly allowed. The judgment and order dated 31.3.2006 in Sessions Case No. 45 of 2002 recording conviction and awarding sentence against present appellant for offence punishable under Section 325 of the Indian Penal Code is not disturbed and is hereby confirmed. However, instead of immediately directing the appellant to undergo sentence of imprisonment awarded by the learned trial Court, the appellant is given benefit of probation under the provisions of the Probation of Offenders Act, 1958. However, the appellant shall, as declared by him in the affidavit made by him on 4.11.2015 and stipulated by learned advocate, pay sum of Rs. 15,000/- as compensation payable to the injured person. However, the appellant shall, as declared by him in the affidavit made by him on 4.11.2015 and stipulated by learned advocate, pay sum of Rs. 15,000/- as compensation payable to the injured person. The said compensation shall be deposited by the appellant within period of three weeks from today before the learned trial Court. 21. After the amount towards the compensation is deposited by the appellant, the learned trial Court shall issue appropriate intimation to the injured person and complete the procedure and formalities for making payment of the said compensation amount to the injured person. 21.1 Besides this, it is also directed that the appellant shall execute within one week from today, bond in the sum of Rs. 5,000/- under Section 4 of the Act read with Section 361 of the Code of Criminal Procedure with one surety of the like amount for the period of two years. The bond shall become inoperative on completion of period of bond i.e. 2 years. 21.2 The appellant shall also pay/deposit, within one week, Rs. 200/- i.e. the fine imposed by the learned trial Court by virtue of the judgment dated 31.3.2006 in Sessions Case No. 45 of 2002. 21.3 If the appellant fails to execute the bond as aforesaid and/or if the appellant fails to pay/deposit the amount of compensation as stipulated by him within above mentioned period, then, the learned trial Court shall issue non-bailable warrant of arrest against the appellant and require him to undergo sentence imposed by the judgment impugned in present appeal i.e. Criminal Appeal No. 799 of 2006. The order of substantive sentence imposed by the learned trial Court shall remain under suspension till period of probation. 21.4 If there is breach of any of the conditions of the bond to be executed under Section 4 of the Probation of Offenders Act read with Section 361 of the Code of Criminal Procedure by the appellant/original convict, the learned trial Court shall be at liberty to issue non-bailable warrant of arrest against the appellant/original convict to serve the sentence imposed by the learned trial Court. 21.5 The terms of the above mentioned bond to be executed by the appellant shall be settled by learned trial Court and the learned trial Court shall be at liberty to prescribe such conditions as may be considered appropriate in the facts of the case. 21.5 The terms of the above mentioned bond to be executed by the appellant shall be settled by learned trial Court and the learned trial Court shall be at liberty to prescribe such conditions as may be considered appropriate in the facts of the case. Rule is made absolute to the aforesaid extent in respect of Criminal Appeal No. 799 of 2006. The Record and Proceedings be sent back to the concerned learned trial Court forthwith. Direct service is permitted. Appeal Partly Allowed.