Research › Search › Judgment

Gujarat High Court · body

2015 DIGILAW 1263 (GUJ)

Maluji Lachhuji Rajput v. State of Gujarat

2015-12-09

K.S.JHAVERI, R.P.DHOLARIA

body2015
JUDGMENT : K.S. Jhaveri, J. 1. Heard learned Advocate for the appellants - accused Mr. M.C. Barot, learned Advocate for the complainant Mr. Tushar Chaudhary and learned Additional Public Prosecutor for the respondent - State Mr. L.R. Pujari. 2. The appellant accused No. 3 - Madhaji Galaji Rajpur has expired on 07.10.2012. Hence, the appeal qua the accused No. 3 abates. Copy of the Death Certificate is ordered to be taken on record. 3. By way of this Appeal, the appellants - accused, being aggrieved, have challenged the judgment and order of conviction and sentence dated 29.01.2005 of the learned Additional Sessions Judge, Fast Track Court, Banaskantha at Deesa in Sessions Case No. 204/2000 whereby the accused were convicted and sentenced to undergo rigorous imprisonment for 6 years and fine of Rs. 5000/-, in default, rigorous imprisonment for 3 months more under Section 307 and 34 of Indian Penal Code and rigorous imprisonment for 3 years and fine of Rs. 3,000/-, in default rigorous imprisonment for 3 months more under Sections 325 and 35 of the Indian Penal Code. The accused were acquitted of the offences punishable under Sections 504, 506(2) of the Indian Penal Code and under Section 135 of the Bombay Police Act. 4. The case in brief and the incident which occurred on 24.07.1999 are as under:-- "3.1. It is the case of the complainant that his field is situated in Village Siya and the complainant and his family reside in the house constructed on the field itself. There is the field of the accused No. 3 which adjoins the field of the complainant, who also lives with his family. Both the complainant and the accused No.3 are related to each other. But there were some disputes going on with regard to the repair of boundary of the fields between the two families which could not be solved and they were not on talking terms. On the said night, the complainant required labourers to work in his fields so he had gone to call some labourers. As he was returning back to his field at about 12.00 in the night hours, the complainant saw that at main gate of his field the accused No. 1 was standing with an iron spear, the accused No. 2 with a dharia and the other accused with sticks. As he was returning back to his field at about 12.00 in the night hours, the complainant saw that at main gate of his field the accused No. 1 was standing with an iron spear, the accused No. 2 with a dharia and the other accused with sticks. It is alleged that all the accused asked the complainant as to why he was not allowing the accused No. 3 to repair the boundary of the field?, to which the complainant replied that he would not allow the repair of the boundary of his field and they could repair their own boundaries. The accused got incensed, gave filthy abuses to the complainant and threatened him to give his consent for repair of the boundary otherwise he would be killed. The accused No. 1 is alleged to have given a blow on the head and the right shoulder, the accused No. 2 tried to attack the complainant with the dharia, the complainant raised his hand and therefore, he received his injuries on the thumb and on the left shoulder. The accused No. 3 gave a stick blow on the left hand and the back of the complainant and the accused No. 4 gave a stick blow on the left leg. Seeing the complainant bleeding all the accused ran away. The complainant was there lying there all night and the next day, the son of the complainant and the complainant's brother went looking. Narrating the entire incident, a complaint was lodged, and the appellants accused were charged for the alleged offences. The accused did not plead guilty to the charges and claimed to be tried. 3.2. At the time of the trial, the prosecution examined the following witnesses:-- Particulars Exhibit PW1 Dr. Narrating the entire incident, a complaint was lodged, and the appellants accused were charged for the alleged offences. The accused did not plead guilty to the charges and claimed to be tried. 3.2. At the time of the trial, the prosecution examined the following witnesses:-- Particulars Exhibit PW1 Dr. Kishorebhai Shambhubhai Thakkar 10 PW2 Ratnaji Dudaji, Complainant and who suffered the injuries 16 PW3 Ranaji Ratnaji 17 PW4 Ranmalji Ravtaji 18 PW5 Arjanji Javraji 19 PW6 Vaghaji Vadaji 20 PW7 Bheraji Narnaji 26 PW8 Rupaji Dudaji 27 PW9 Gulabsinh Motiji 28 PW10 Baldevbhai Narsinhbhai 30 PW11 R.H. Chowdhury (Investigating Officer) 32 The prosecution also relied upon various documentary evidence, some of them are:-- Particulars Exhibit Yadi sent by the Police to the Dhanera Doctor 11 Medical Certificate given by the Doctor to the complainant 12 X-Ray of the injuries received by the complainant 13-15 Panchnama of the weapons and the arrest of the accused 21 The receipt signed by the panchas about spear and dharia 22-23 The receipt signed by the panchas about the seizure of the blood stained shirt of the complainant 24 Panchnama of the position of the body of the complainant the seizure of the blood stained shirt 25 Map of the area 29 Declaration 31 Complaint 33 Panchnama of the scene 34 Forwarding Note for the muddamal 35 Receipt for the muddamal received by the FSL 36 FSL Report alongwith the forwarding letter 37 Analysis Report of the FSL 38 Serological Report of the FSL 39 Yadi sent by the police for the map 40 Compilation 41 3.3. At the conclusion of the trial, the learned Additional Sessions Judge, Fast Track Court, Banaskantha at Deesa in Sessions Case No. 204/2000 passed the above stated judgment and order convicting and sentencing the accused." 5. Today, all the appellants accused as well as the complainant are present in the Court. The complainant is identified by learned Advocate Mr. Tushar Chaudhary. 6. Today, learned Advocate for the complainant Mr. Tushar Chaudhary places before this Court, an Affidavit filed by the complainant - Ratnaji Dhudaji Rajput which reads an under:-- "I, Ratnaji Dhudaji Rajput, aged 62, Occu : agriculture, resident of village : Siya, Taluka : Dhanera, District : Banaskantha - the complainant of I-C.R. No. 71/1999 registered with Dhanera Police Station, do hereby on solemn affirmation state as under : 2. I state that I am the complainant of I-C.R. No. 71/1999 registered with Dhanera Police Station against the present appellant, which FIR culminated in Sessions Case No.204/2000, tried by the Ld. Additional Sessions Judge, Fast Track Court, Banaskantha at Deesa. Vide the judgment and order dated 29.1.2005 of the trial court, the appellants have been convicted u/s. 307 r/w. S. 34 of IPC and have been sentenced to undergo R.I. for 6 years and fine of Rs. 5,000/- has been imposed and in default thereof to undergo R.I. for 3 months. The appellants were also convicted u/s. 325 r/w. S. 34 of IPC and have been sentenced to undergo R.I. for 3 years and fine of Rs. 3,000/- has been imposed and in default thereof to undergo R.I. for 3 months. Both the sentences were ordered to run concurrently. The appellants have preferred the captioned appeal against the said judgment and order of conviction. 3. It is stated that the appellant and the complainant are related to each other and reside in the same village i.e. Siya. It is further stated that after filing of the appeal, the appellants were enlarged on bail and no untoward incident has occurred between the appellants and other family members of both sides, including the present complainant. 4. It is further stated that as the appellants and the complainant are related, family members and other community persons intervened and persuaded the parties to amicably settle their inter se dispute and differences. That due to such intervention, the present appellants and complainant have arrived at an amicable settlement and the disputes, differences and issues between both the parties are now resolved. In that view of the matter, on account of the settlement arrived at between the appellants and the complainant, with the intervention of the above referred persons, there remains no grievance or difference between the complainant and the present appellants and the same have now been resolved. It is stated that the parties have settled the disputes/differences between them considering the well being and reputation of both the parties. It is further stated that in view the said settlement between the parties, amount of Rs. 2,25,000/- has been decided to be paid by the appellants to the complainant towards compensation and the said amount has already been deposited by the appellants with the mediator. It is further stated that in view the said settlement between the parties, amount of Rs. 2,25,000/- has been decided to be paid by the appellants to the complainant towards compensation and the said amount has already been deposited by the appellants with the mediator. That both the sides have decided to live with peace, harmony and love and the dispute between them has been amicably settled. In view of the above, the Hon'ble Court is humbly requested to pass appropriate order in the matter." The above Affidavit is ordered to be taken on record. 7. As a settlement is arrived at between the appellants accused and the complainant, while confirming the judgment and order dated 29.01.2005 of the learned Additional Sessions Judge, Fast Track Court, Banaskantha at Deesa in Sessions Case No. 204/2000 qua the conviction of the accused under Section 307, 325 and 34 of the Indian Penal Code, without entering into the merits of the matter, we are of the view that the interest of justice would be met by considering the principle rendered by the Apex Court in Ankush Shivaji Gaikwad v. State of Maharashtra reported in 2013 (6) SCALE 778. Hence, we are inclined to grant the benefit of the provision of Section 357 of Cr.P.C. to the appellants-accused. Accordingly, while granting benefit of judgment rendered in Ankush Shivaji Gaikwad's case to the appellants original accused, we are of the view that that if the appellants deposit a sum of Rs. 2,25,000/- (Rupees Two Lac Twenty Five Thousand Only) before the Registry of the concerned Sessions Court within a period of 10 weeks from today, which in turn, shall be paid as compensation to the complainant, the appellants are not required to undergo the remainder part of their sentence qua their conviction under Sections 307, 325 and 34 of the Indian Penal Code. On such a deposit being made, the Registry of the concerned Sessions Court shall pay the same to the complainant, after due verification. However, it is made clear that if the appellants fail to deposit the amount of Rs. 2,25,000/- within the stipulated period as stated above, the investigating agency shall take all necessary steps against the appellants accused for sending them to jail custody, for serving the remaining period of their sentence. 8. However, it is made clear that if the appellants fail to deposit the amount of Rs. 2,25,000/- within the stipulated period as stated above, the investigating agency shall take all necessary steps against the appellants accused for sending them to jail custody, for serving the remaining period of their sentence. 8. Criminal Appeal No.778/2005 is preferred by the appellant - State seeking enhancement of sentence awarded to the above accused vide the judgment and order dated 29.01.2005 of the learned Additional Sessions Judge, Fast Track Court, Banaskantha at Deesa in Sessions Case No. 204/2000. However, in view of the settlement arrived at by and between the parties and as peace is prevailing, Criminal Appeal No. 778/2005 is devoid of merits and stands dismissed. Bail and bail bond, if any, stands cancelled. Record and proceedings be sent the concerned Trial Court forthwith.