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2015 DIGILAW 596 (GUJ)

Lalji Kurji Maghodiya v. State of Gujarat

2015-06-11

ANANT S.DAVE, G.B.SHAH

body2015
JUDGMENT G.B. Shah, J. 1. This appeal by the appellants - original accused is directed against the judgment and order of conviction and sentence dated 30/03/2010 delivered by learned Additional Sessions Judge and Presiding Officer, Fast Track Court, Jamnagar in Sessions Case No. 122 of 2006 for the offence punishable under Sections 302 and 114 of the Indian Penal Code (for brevity "IPC") and Section 135(1) of the B.P. Act, whereby the appellants - original accused were convicted and sentenced to undergo imprisonment for life with fine of Rs. 1,000/- each, in default, to undergo further period of three months of imprisonment and for the offence punishable under Section 135(1), three months of simple imprisonment. All the sentences were ordered to run concurrently. 2. The case of the prosecution in brief is that in the sim of Village: Balambha, Taluka: Jodiya, District: Jamnagar agricultural lands of deceased Dharmendra @ Babubhai and the appellants - original accused were situated. Between their particular lands, there was a boundary wall, which as per the case of the appellants - original accused, was constructed by the deceased overnight and on 26/06/2006, the appellants - original accused broke the said wall and hence, the deceased and his friends tried to persuade them not to break the same and get the lands measured and then, if needed, break the wall to which, the appellants - original accused denied. It is the case of the prosecution that thereafter, the appellant No. 3 - original accused No. 3 attacked the deceased with Scythe, the appellant No. 1 - original accused No. 1 with Spade, the appellant No. 2 - original accused No. 2 with Axe and the appellant No. 4 - original accused No. 4 with Khapali. In consequence thereto, the deceased got severe injuries and eventually succumbed to the injuries and accordingly, a complaint for the aforesaid offences was lodged before Jodiya Police Station. Upon conclusion of investigation, since a prima facie case was found against the appellants, the Charge-sheet was filed against the present appellants - original accused in the Court. 2.1 As the offence against the accused was sessions triable, learned Judicial Magistrate First Class, Jodiya committed the case to the Court of Sessions. The learned trial Judge framed charge against the accused. The charge was read over and explained to the accused. The accused denied all the charges and pleaded to be tried. 2.1 As the offence against the accused was sessions triable, learned Judicial Magistrate First Class, Jodiya committed the case to the Court of Sessions. The learned trial Judge framed charge against the accused. The charge was read over and explained to the accused. The accused denied all the charges and pleaded to be tried. Hence, the prosecution was asked to prove the guilt against the accused. 2.2 To prove the guilt against the accused, prosecution examined 16 witnesses and has produced and relied upon several documentary evidence. 2.3 On submission of Closing Pursis by the prosecution, learned trial Judge recorded Further Statements of the accused under Section 313 of Code of Criminal Procedure, 1973 (for brevity, '"the Code") qua incriminating evidence. In the said Further Statements, the appellants - original accused have replied that they are innocent and have not committed any offence and have been falsely implicated. Upon affording opportunity of hearing to the learned advocates appearing for the respective parties, learned trial Judge delivered the impugned judgment convicting and sentencing the appellants as aforesaid in the earlier part of this judgment giving rise to prefer the present appeal. 3. Heard Mr. Mrudul Barot, learned advocate for Mr. M.K. Vakharia for the appellants - original accused, Ms. Krina P. Calla, learned Additional Public Prosecutor for the respondent - State and Mr. N.D. Gohil, learned advocate for the original complainant. 4. The learned advocate appearing for the appellants, at the threshold, submitted that appellant No. 1 - original accused No. 1 - Lalji Kurji Maghodiya has already died pending appeal. In support, he produced copy of his Death Certificate. In view of the said fact, the present appeal is abated qua appellant No. 1 - original accused No. 1. 5. The learned advocate appearing for the appellants - original accused submitted that the learned trial Judge has not properly appreciated oral as well as documentary evidence produced on record and has erred in holding that the prosecution has proved the charge against the accused beyond reasonable doubt. He submitted that the prosecution has examined in all 16 witnesses, however, the learned trial Judge has not properly appreciated the evidence of the said witnesses and thereby, the finding recorded by the learned trial Judge that the prosecution has proved the charge against the accused by leading legal, reliable and impeachable evidence, is contrary to the evidence available on record. He submitted that the alleged incident has occurred on the land of the appellants - original accused and not on the land belonged to the deceased. Further, he submitted that the accused did not possess any weapons used in the alleged offence, but it was the deceased who had come with the weapon with his friends, with a view to restrain the appellants from breaking the boundary wall that was built on the land belonged to accused and illegally trespassed on their land and assaulted accused No. 1 with Scythe due to which, handle of the Spade held by the accused No. 1 had broken down and in self-defence the incident might have occurred. He submitted that there is nothing on record to show that earlier there was any untoward incident and/or prior enmity between the deceased and the appellants which could have culminated in such an incident. He further submitted that there are material improvements and contradictions in the evidence of the eye-witnesses viz. Hatimbhai N. Trivedi, who is examined at exh. 47 and Haji Noormamad, exh. 62 and the medical evidence and considering the same, the prosecution case is not believable, however, the learned trial Judge has failed to appreciate the said fact. He submitted that the injuries sustained by the deceased as shown in the Inquest Panchnama differ from what is shown in the Post Mortem Report and there also appears contradictions in the same. Drawing our attention to the deposition of Dr. Sunil Rameshwar Prasad, exh. 25, the learned advocate appearing for the appellants submitted that this witness has categorically stated that most of the injuries sustained by the deceased could not occur by the alleged weapons more particularly, Khampali and Axe, alleged to have been used in the incident in question and in that view of the matter, the case of the prosecution is not believable. He also submitted that conduct of the so-called eyewitnesses being mute spectators at the time of the alleged incident creates doubt for the reason that though they alleged to have been present while the incident occurred, nobody had even tried to intervene and stop the offenders from committing such a crime, nor any one had shouted for the help, for the reasons best known to them, which is unbelievable. Moreover, he submitted that as per the case of the prosecution, there was hue and cry at the place of incident due to alleged incident as many people had accumulated there, however, except the so-called eye-witnesses who are the interested witnesses, no other independent witness has been examined by the prosecution in support of their case and hence, only on the depositions of these eye-witnesses, conviction cannot be sustained. Even, the prosecution has not examined Denish, who is nephew of the deceased, who was present at the spot after the incident and in whose presence, the Inquest Panchnama was drawn. Further, he submitted that so far as accused Nos. 3 and 4 are concerned, they were wrongly dragged and implicated in the incident as they reside at Rajkot since long and not at Village: Balambha where the incident in question had occurred and the learned trial Judge has erred in not believing the said fact and holding them too guilty of the charge. In above view of the matter, he urged that no conviction can be based but this is a clear case of at least giving benefit of doubt in favour of the appellants. In support of his case, he relied on the following decisions: i) AIR 2003 SC 854 (1) in the case of Lallu Manjhi and Another Vs. State of Jharkhand (Para 11, 12 and 13). ii) AIR 1987 SC 826 (1) in the case of Amar Singh and Others Vs. State of Punjab. iii) 2009 (3) GLH 618 in the case of Vinubhai @ Daghiyo Himmatbhai Goswami Vs. State of Gujarat. iv) (1996) 2 SCC 350 in the case of Harbans Lal Vs. State of Punjab. 5.1 He, therefore, prayed that the impugned judgment of conviction and sentence is required to be quashed and set aside and the appellants are required to be acquitted. 6. Per contra, Ms. Calla, learned Additional Public Prosecutor, drew attention of this Court on the impugned judgment and order and documents on record and submitted that while delivering the said judgment and order, the trial court has considered all the circumstances collectively and found that prosecution has proved the case against the appellants and came to irresistible conclusion that the appellants are the perpetrator of crime in question. She submitted that the prosecution eye-witnesses have categorically supported the case of the prosecution more particularly, the evidence of Hatimbhai N. Trivedi, whose deposition is at exh. 47 and Haji Noormamad, whose deposition is at exh. 62, which is substantiated by the documentary evidence forthcoming on the record. Moreover, the case of the defence that there was no land in the name of the deceased situated near the land of the appellants - original accused has been rebutted by relevant documentary evidence put forth before the trial Court. Moreover, the case of the defence that the deceased had assaulted first on the appellant No. 1 and the case of self-defence is not believable at all as there is nothing on record to show that either of the appellants has sustained any injury and has taken treatment for the same. Further she submitted that only on the count of eye-witnesses who were friends of the deceased being interested witnesses, living in the same village, their evidence cannot be discarded. They were eye-witnesses to the incident in question, appear natural and it was necessary for the prosecution to examine the said witnesses and evidence of such witnesses is corroborated by other documentary evidence, and hence, the same cannot be ignored and the learned trial Judge has rightly and properly appreciated the same. Moreover, in view of about 19 different injuries inflicted upon the deceased, the conduct of the eye-witness cannot be adjudged negatively on their being run away from the spot while the deceased was assaulted. She then submitted that the trial Court sought explanation of the appellants as regards incriminating material that has surfaced against them to which, they denied as being untrue, false and created and submitted that the appellants - original accused had only tried to put their case that they have been wrongly implicated by the prosecution, which is not believable at all in view of the evidence on record. She further submitted that, thus, all the aspects of the matter have been dealt with by the learned trial Judge by leaving no stone unturned and accordingly, the impugned judgment and order passed by the learned trial Judge is just, legal and proper as plausible reasons have been given which requires no interference at the hands of this Court and accordingly, present appeal deserves to be dismissed. In support, she relied upon following decisions: i) Sunder Singh Vs. In support, she relied upon following decisions: i) Sunder Singh Vs. State of Uttaranchal, reported in (2010) 10 SCC 611 ; ii) Ramanand Yadav Vs. Prabhu Nath Jha and Others, reported in AIR 2004 SC 1053; iii) Neel Kumar @ Anil Kumar Vs. State of Haryana, reported in (2012) 5 SCC 766 ; iv) Leela Ram (dead) through Dulichand Vs. State of Haryana and Another, reported in (1999) 9 SCC 525 . 7. We have also heard Mr. N.D. Gohil, learned advocate appearing for the original complainant. He, while adopting the submissions made by the learned Additional Public Prosecutor, submitted that the prosecution has succeeded in bringing home the charge against the appellants - original accused beyond reasonable doubt in view of the oral and documentary evidence available on record and accordingly, the learned trial Judge has rightly concluded in favour of the prosecution by delivering judgment and order of conviction and sentence, which is not required to be interfered by this Court and present appeal may be dismissed. 8. We have heard the learned advocates appearing for the parties and in light of the same, also gone through the impugned judgment and order and also the oral as well as documentary evidence on record. In the context of the prosecution case, depositions of Hatimbhai N. Trivedi, who is examined at exh. 47 and Haji Noormamad, who is examined at exh. 62 are of much importance for the reason that, as per the prosecution case, they had accompanied the deceased to his field and they are eyewitnesses to the incident in question. Moreover, it is Hatimbhai, who had given first information to the police on phone about the incident with full details about the incident, name of accused persons, the weapons which were used in the crime, place of incident etc. Moreover, these witnesses had also identified accused No. 4 - Hemraj Lalji Maghodiya during Identification Parade. Further, during examination, he has fully supported the case of the prosecution as per the details given in the complaint. So far as evidence of another witness Haji Noormamad, who is examined at exh. 62, who had also accompanied the deceased to his field along with Hatimbhai and is also an eye-witness to the incident in question, is concerned, he has also supported the case of the prosecution in toto. So far as evidence of another witness Haji Noormamad, who is examined at exh. 62, who had also accompanied the deceased to his field along with Hatimbhai and is also an eye-witness to the incident in question, is concerned, he has also supported the case of the prosecution in toto. These witnesses have clearly denied the story put forth by the appellants - original accused of inducement and assault by the deceased on accused No. 1. Further, if the deposition of witness Sandha Bhalu who is examined at exh. 64 is taken into consideration, this witness has also deposed that while he was going to Hirapar from Balambha by road, on hearing the hue and cry and seeing Hatimbhai Trivedi, Haji Noormamad and Adambhai, he stopped and inquired to which, Haji Noormamad had narrated the incident. He has also deposed that he had seen the accused leaving the place on a cart. Moreover, Panch Witness Vallabhbhai Tapubhai, who is examined at exh. 70, has also supported the Discovery Panchnama at exh. 71 and the fact of discovery of weapons used in the crime at the instance of accused No. 2 - Ashok Lalji and thereby, supported the case of the prosecution. Moreover, the case of the defence that the deceased had no land situated near the land of the accused and hence, there was no question of such happenings as put forth by the appellants - original accused in Further Statements dated 10/06/2009 recorded by the trial Court has been successfully rebutted by relevant revenue record at exh. 112 as well as the Map, exh. 92, prepared by the Circle Officer, whose deposition had been recorded vide exh. 91 before the trial Court and thereby, it was proved that lands of the deceased and the accused were situated adjacent to each other. So far as the contention of learned advocate appearing for the appellants as to self-defence and presence of only two accused out of four during the incident and the appellant Nos. 3 and 4 - original accused Nos. 3 and 4 being residents of Rajkot, the same is successfully rebutted by the depositions of eye-witnesses Hatimbhai N. Trivedi, exh. 47 and Haji Noormamad, exh. 62 according to whom, all the accused were present at the spot and while deceased trying to persuade the accused, they assaulted the deceased and got injuries to which he succumbed. 3 and 4 being residents of Rajkot, the same is successfully rebutted by the depositions of eye-witnesses Hatimbhai N. Trivedi, exh. 47 and Haji Noormamad, exh. 62 according to whom, all the accused were present at the spot and while deceased trying to persuade the accused, they assaulted the deceased and got injuries to which he succumbed. So far as the case of the defence that there are material contradictions in the evidence of the eye-witnesses and the medical evidence and hence, the appellants may be given benefit of doubt is concerned, it is fact that there appears minor contradictions as to the injuries sustained by the deceased in the evidence of the eye-witnesses and the evidence of doctor, who is an expert, however, if overall aspects of the matter are taken into consideration viz. evidence of the eye-witnesses and other corroborative oral as well as the documentary evidence, we are of the opinion that the case of the prosecution cannot be discarded on such a ground, which otherwise appears to be proved. 8.1 The learned trial Judge has, in the impugned judgment and order, considered all the aspects of the matter minutely and come to the irresistible conclusion that the prosecution has proved the case against the appellants - original accused beyond reasonable doubt and accordingly, passed the impugned judgment and order to which, in view of the above discussion and taking into consideration facts and circumstances of the case coupled with other evidence discussed herein above, it can be said that prosecution succeeded in proving the guilt against the accused beyond reasonable doubt and therefore, the trial Court has rightly convicted and sentenced the appellants - original accused for the alleged offence and we are in agreement with the same. 8.2 So far as the decisions relied upon by the learned advocate appearing for the appellants - original accused are concerned, there is no dispute about the ratio laid down in the same, however, considering the facts and circumstances of the case on hand and considering the fact that the prosecution has proved the case against the appellants - original accused beyond reasonable doubt, the eye-witnesses have supported the case of the prosecution, which is corroborated by other oral as well as documentary evidence and the fact that the appellants - original accused could not rebut the same, in the considered opinion of this Court, the said decisions would be of no help to the appellants as being not applicable to the case on hand. 8.3 The last submission made by the learned advocate for the appellants - original accused that requires to be dealt with at this stage is to the effect that, without prejudice to the rights and contentions, even if the case of the prosecution is accepted, in the alternative, considering the period of imprisonment undergone by the appellants who have no past criminal antecedents and also considering the jail conduct of the appellants, set off should be given to them for rest of the sentence. 8.4 Considering the injuries sustained by the deceased, which are about 19 in number, as well as cause of death of the deceased, it cannot be said that the appellants had no intention to cause death but had only intention that such act of theirs is likely to cause death or to cause bodily injury as is likely to cause death. In our opinion, such submission cannot be accepted considering the conduct of the appellants during and after the incident and also the injuries suffered by the deceased which, in no uncertain terms, points to only conclusion of their conviction as has been imposed upon the appellants by the trial Court. Moreover, if the sentence is further reduced, it would be a mockery and the purpose of sentence to create deterrent effect would be completely lost. The reference may be made to the decision of the Apex Court in the case of Sumer Singh Vs. Surajbhan Singh and Others, reported in (2014) 7 SCC 323 . Paras 33 and 36 related to exercise of power while imposing sentence, read as under: "33. The reference may be made to the decision of the Apex Court in the case of Sumer Singh Vs. Surajbhan Singh and Others, reported in (2014) 7 SCC 323 . Paras 33 and 36 related to exercise of power while imposing sentence, read as under: "33. It is seemly to state here that though the question of sentence is a matter of discretion, yet the said discretion cannot be used by a court of law in a fanciful and whimsical manner. Very strong reasons on consideration of the relevant factors have to form the fulcrum for lenient use of the said discretion. It is because the ringing of poignant and inimitable expression, in a way, the warning of Benjamin N. Cardozo in The Nature of the Judicial Process:- "The Judge even when he is free, is still not wholly free. He is not to innovate at pleasure. He is not a knight errant roaming at will in pursuit of his own ideal of beauty or of goodness. He is to draw his inspiration from consecrated principles. He is not to yield to spasmodic sentiment, to vague and unregulated benevolence. He is to exercise a discretion informed by tradition, methodized by analogy, disciplined by system, and subordinated to 'the primordial necessity of order in social life'." 34. xxx 35. xxx 36. Having discussed about the discretion, presently we shall advert to the duty of the court in the exercise of power while imposing sentence for an offence. It is the duty of the court to impose adequate sentence, for one of the purposes of imposition of requisite sentence is protection of the society and a legitimate response to the collective conscience. The paramount principle that should be the guiding laser beam is that the punishment should be proportionate. It is the answer of law to the social conscience. In a way, it is an obligation to the society which has reposed faith in the court of law to curtail the evil. While imposing the sentence it is the Court's accountability to remind itself about its role and the reverence for rule of law. It must evince the rationalized judicial discretion and not an individual perception or a moral propensity. But, if in the ultimate eventuate the proper sentence is not awarded, the fundamental grammar of sentencing is guillotined. While imposing the sentence it is the Court's accountability to remind itself about its role and the reverence for rule of law. It must evince the rationalized judicial discretion and not an individual perception or a moral propensity. But, if in the ultimate eventuate the proper sentence is not awarded, the fundamental grammar of sentencing is guillotined. Law cannot tolerate it; society does not withstand it; and sanctity of conscience abhors it. The old saying "the law can hunt one's past" cannot be allowed to be buried in an indecent manner and the rainbow of mercy, for no fathomable reason, should be allowed to rule. True it is, it has its own room, but, in all circumstances, it cannot be allowed to occupy the whole accommodation. The victim, in this case, still cries for justice. We do not think that increase in fine amount or grant of compensation under the Code would be a justified answer in law. Money cannot be the oasis. It cannot assume the centre stage for all redemption. Interference in manifestly inadequate and unduly lenient sentence is the justifiable warrant, for the Court cannot close its eyes to the agony and anguish of the victim and, eventually, to the cry of the society. Therefore, striking the balance we are disposed to think that the cause of justice would be best sub-served if the respondent is sentenced to undergo rigorous imprisonment of two years apart from the fine that has been imposed by the learned trial judge." (emphasis supplied) 9. In the above backdrop, the appeal having found without any substance, fails and is dismissed accordingly qua original accused Nos. 2, 3 and 4. So far as original accused No. 1 is concerned, the appeal is already abated since he died. The impugned judgment and order dated 30/03/2010 passed by the learned Additional Sessions Judge and Presiding Officer, Fast Track Court, Jamnagar in Sessions Case No. 122 of 2006, is confirmed. Since the original accused Nos. 2, 3 and 4 are in jail, no further orders are required to be passed. Registry to send back the record and proceedings to the trial Court forthwith after following due procedure for the same. Appeal Dismissed.