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2015 DIGILAW 1239 (GUJ)

Harji Makanbhai Dhamasiya v. State of Gujarat

2015-12-03

RAJESH H.SHUKLA

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JUDGMENT : Rajesh H. Shukla, J. 1. The present Appeal is directed against the impugned judgment and order rendered in Sessions Case No. 111 of 1995 by the learned Additional Sessions Judge, Rajkot dated 21.7.2009 recording the conviction of the Appellant/Original Accused for the offence under Section 307 and sentencing him R.I. for 10 years and fine of Rs. 50,000/- and in default S.I. for 2 years as stated in detail in the judgment. The compensation has also been ordered to be paid as stated in the impugned judgment. 2. The facts of the case briefly summarized are that the complainant and the present accused are the relatives as the wife of the accused and the wife of the complainant are sisters and in fact there are cross complaints which have been registered as the present Sessions Case No. 111 of 1995 where Dahyabhai Kanjibhai Patel is the complainant and the Appellant is the accused whereas in Sessions Case No. 62 of 2004 the present Accused Harji Makanbhai Patel is the complainant and Dahyabhai Kanjibhai Patel and Harji Kanjibhai Patel are the Accused. As it transpires from the material and evidence on record there was some quarrel in the field when the accused as well as the complainant confronted each other near the well. The present Appellant/Original Accused in Sessions Case No. 111 of 1995 is said to have ran the tractor towards the complainant resulting in a quarrel and the accused is said to have assaulted, as a result of which the leg of the complainant was required to be amputated. Therefore the FIR came to be registered as FIR No. 4 of 1995 with Padhdhari Police Station for the offence under Section 307 IPC. Similarly, the cross complaint was registered as FIR No. 3 of 1995. Therefore there were two cases being Sessions Case No. 111 of 1995 from which the present Appeal has arisen and Sessions Case No. 62 of 2004. 3. After the investigation was over the charge sheet was filed and as the offence under Section 307 IPC is triable by the court of Sessions, it was committed to the court of Sessions. Thereafter the learned Sessions Judge framed the charges for the offence under Section 307 IPC and proceeded with the trial. 4. 3. After the investigation was over the charge sheet was filed and as the offence under Section 307 IPC is triable by the court of Sessions, it was committed to the court of Sessions. Thereafter the learned Sessions Judge framed the charges for the offence under Section 307 IPC and proceeded with the trial. 4. In order to bring home the charges levelled against the present accused, the prosecution has examined the witnesses including the victim and other witnesses and also produced the documentary evidence which shall be referred to hereinafter. 5. After the recording of the evidence of the prosecution witnesses was over, the learned Sessions Judge recorded the further statement of the accused under Section 313 of the Code of Criminal Procedure. 6. After hearing the learned PP as well as learned Advocate for the Accused, the learned Additional Sessions Judge, Rajkot recorded the conviction of the Appellant accused for the offence under Section 307 IPC and sentenced him as stated herein above. It is this judgment and order which has been assailed in the present Appeal on the grounds stated in the memo of Appeal inter alia that the learned Additional Sessions Judge, Rajkot has committed an error while recording the conviction of the accused and has not considered the cross case which has been registered as Sessions Case No. 62 of 2004 where the present accused is the complainant. 7. Heard learned Advocate Shri A.R. Patel for the Appellant and learned APP Shri H.L. Jani for the Respondent State of Gujarat. 8. Learned Advocate Shri A.R. Patel referred to the material and evidence at length and has also referred to the testimony of the witnesses and tried to emphasize on the aspect of the cross complaint. He pointedly referred to the genesis of the offence that it was a quarrel with regard to the suspicion about the illicit relation of the complainant with the wife of the accused for which the accused had some suspicion though apparently the incident is said to have taken place near the field. He also referred to the charge for the cross case in Sessions Case No. 62 of 2004 where the accused is the complainant. Learned Advocate Shri Patel referred to the complaint in both the respective cases and also the testimony of the witnesses. He also referred to the charge for the cross case in Sessions Case No. 62 of 2004 where the accused is the complainant. Learned Advocate Shri Patel referred to the complaint in both the respective cases and also the testimony of the witnesses. He also referred to the testimony of the eyewitness PW-7 at Exh.57 and also the testimony of the I.O. PW-11 at Exh.77. Learned Advocate Shri Patel referred to the manner in which the investigation has been made which raises a doubt about the manner of investigation and submitted that it was not a fair investigation. In any case learned Advocate Shri A.R. Patel has submitted that looking to the background and the genesis of offence with the cross case and particularly when the accused and the complainant are the relatives, at least the sentence may be modified or reduced in the interest of justice. 9. Learned APP Shri H.L. Jani also referred to the papers at length and also the medical evidence with regard to the injuries and submitted that the incident and the injuries are established and the offence under Section 307 IPC is proved. He submitted that it has resulted in amputation of one leg of the complainant and therefore the court below has also awarded the compensation while passing the order of sentence of RI for 10 years. Learned APP Shri H.L. Jani therefore submitted that the present Appeal may not be entertained. He submitted that the Appellant Accused has undergone a sentence of only 6 years and 7 months as in October 2015 and therefore modification in the sentence may not be made. 10. In view of this rival submissions and having perused the impugned judgment as well as the material and evidence on record it is evident that it is a case of cross complaint between the two relatives. The genesis of the offence is with regard to the suspicion of the present accused for the relation of the wife with the complainant. May be there was only a suspicion or doubt, it was the cause for the quarrel in the field between the complainant and the accused resulting in altercation for which the aforesaid FIR has been registered for the offence under Section 307 IPC culminating into Sessions Case No. 111 of 1995. May be there was only a suspicion or doubt, it was the cause for the quarrel in the field between the complainant and the accused resulting in altercation for which the aforesaid FIR has been registered for the offence under Section 307 IPC culminating into Sessions Case No. 111 of 1995. The court below on appreciation of material and evidence has recorded the conviction of the Appellant accused which is assailed in the present Appeal. 11. Therefor the moot question which is required to be considered is whether while maintaining the conviction for the offence under Section 307 IPC it calls for any modification in the sentence. There is no quarrel with regard to the incident or the injury when the charges for offence under Section 307 IPC have been established. However, one cannot overlook the manner in which the incident has occurred and the genesis of the offence coupled with the fact that the testimony of the I.O. PW-11 at Exh.77 clearly reflect that the investigation is not fair. In fact in the cross complaint filed by the present accused, the investigation has not been made properly as initially it was only 'C' Summary which was not accepted by the court below and thereafter it was registered as Sessions Case No. 62 of 2004. Again, in that case ultimately the accused have been acquitted. It is this background which calls for the scrutiny and appreciation of evidence in background of the circumstances and when the present accused who is the complainant in cross case is also injured. Therefore the interest of justice would be served if the request made by learned Advocate Shri A.R. Patel for the Appellant Accused for modification of the sentence is accepted while maintaining the conviction as it is. 12. Though normally the court would not consider such prayer or the request considering the word of caution expressed by the Hon'ble Apex Court in catena of judicial pronouncements as well as considering the gravity of the offence under Section 307 IPC. The offence under Section 307 IPC is not only an offence qua human body or the concerned complainant but it is an offence against the society, and therefore, the liberal approach may not be welcomed. However, in the facts of the present case, the Appellant Accused has already served substantial sentence of 6 years and 7 months and conviction is maintained. However, in the facts of the present case, the Appellant Accused has already served substantial sentence of 6 years and 7 months and conviction is maintained. Further, the evidence of the I.O. with regard to the cross complaint reflect about the unfair investigation coupled with the fact that the complainant and the accused are relatives and therefore it has to be considered with the entire background of the facts and circumstances. Moreover the incident has occurred in a spur of moment and therefore there is no intention or the willful conduct suggesting the intention. It is in this background, the court is of the opinion that the interest of justice would be served, if, while maintaining the conviction as it is, the sentence is modified instead of 10 years to the sentence undergone as sufficient sentence. 13. Therefore the present Appeal stands allowed partly to the extent as stated above that while maintaining the conviction of the Appellant Accused for the offence under Section 307 IPC as it is, the sentence stands modified to the extent of the sentence undergone. The Appellant Accused HARJI MAKANBHAI DHAMASIYA is ordered to be released forthwith if he is not required in connection with any other case. The present Appeal stands allowed to the aforesaid extent.