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2015 DIGILAW 921 (GUJ)

State of Gujarat v. Margub Salam

2015-09-18

G.B.SHAH, K.S.JHAVERI

body2015
JUDGMENT K.S. Jhaveri, J. 1. Present appeals have been directed against the judgment and order dated 13/10/2008 passed by the learned 3rd Additional Sessions Judge, Jamnagar in Sessions Case No. 124 of 2006, whereby, the learned trial Judge was pleased to convict the original accused Nos. 1 and 4 and for the offence punishable under Section 304(II) of the Indian Penal Code, 1860 (for brevity, 'the IPC') and accordingly, the original accused No. 1 was sentenced to undergo rigorous imprisonment for 05 years and a fine of Rs. 5,000/- and in default of payment of fine, to undergo further simple imprisonment for 03 months, whereas, the original accused No. 4 was sentenced to undergo rigorous imprisonment for 03 years and a fine of Rs. 3,000/- and in default of payment of fine, to undergo further simple imprisonment for 01 month. They were also convicted for the offence punishable under Section 201 r/w. Section511 of the IPC and accordingly, the original accused No. 1 was sentenced to undergo rigorous imprisonment for 03 years and a fine of Rs. 3,000/- and in default of payment of fine, to undergo further simple imprisonment for 01 month, whereas, the original accused No. 4 was sentenced to undergo rigorous imprisonment for 02 years and a fine of Rs. 2,000/- and in default of payment of fine, to undergo further simple imprisonment for 15 days. The original accused Nos. 2 and 3 came to be acquitted from the charges levelled against them. Accordingly, the Criminal Appeal No. 3131 of 2008 has been filed by the appellant - State for enhancement of sentence, whereas, the Criminal Appeal No. 2963 of 2008 has been filed by the appellant - original accused No. 1 against conviction. 2. It was the case of the prosecution that a complaint came to be lodged against the accused for the offence punishable under Sections 302, 323, 201, 341, 506(2) and 34 of the IPC and Section 135(1) of the Bombay Police Act in the Lalpur Police Station, Dist.: Jamnagar. Pursuant to the complaint, investigation was carried out. After investigation, charge-sheet was filed and as the case was triable by the Court of Sessions, it was committed to the Court of Sessions at Jamnagar. The trial Court framed charge against the accused. The accused pleaded not guilty to the charge and claimed to be tried. Pursuant to the complaint, investigation was carried out. After investigation, charge-sheet was filed and as the case was triable by the Court of Sessions, it was committed to the Court of Sessions at Jamnagar. The trial Court framed charge against the accused. The accused pleaded not guilty to the charge and claimed to be tried. Therefore, the prosecution produced oral as well as documentary evidence. In order to bring home the charge against the respondents - original accused, the prosecution has examined as many as 20 witnesses and also produced several documentary evidence. At the end of the trial and after recording the Further Statements of the accused under Section 313 of Criminal Procedure Code, 1973 (for brevity, 'the Code') and hearing arguments on behalf of prosecution and the defence, the learned Sessions Judge passed the aforesaid judgment and order against which, the present appeals have been preferred. 3. We have heard Mr. L.R. Pujari, learned Additional Public Prosecutor for the State, Mr. Y.S. Lakhani, learned senior advocate, assisted by Mr. V.H. Kanara, learned advocate for the original accused No. 1 and Mr. Mrudul Barot, learned advocate for the original accused No. 4. 4. At the outset, Mr. Lakhani, learned senior advocate for the original accused No. 1, submitted that the accused has already undergone almost 29 months and taking into consideration the circumstances in which the offence had occurred and the age and the carrier of the accused and more particularly, in view of the affidavit filed by the mother of the deceased stating that they have arrived at a compromise and if reasonable compensation is paid, she would not have any grievance and accordingly, since the accused is ready and willing to pay a substantial amount towards compensation, he requested that this Court may consider the said aspect and in the peculiar facts and circumstances of the case, convert the sentence into compensation in view of provision of Section 357 of the Code. Qua compensation, he relied upon a decision of the Hon'ble Apex Court in the case of Ankush Shivaji Gaikwad v. State of Maharashtra, reported in AIR 2013 SC 2454 and requested that this Court may pass appropriate order. 5. Mr. Qua compensation, he relied upon a decision of the Hon'ble Apex Court in the case of Ankush Shivaji Gaikwad v. State of Maharashtra, reported in AIR 2013 SC 2454 and requested that this Court may pass appropriate order. 5. Mr. Barot, learned advocate for the accused No. 4, also submitted that the mother of the deceased is 59 years of age and the matter is settled with the intervention of the religious heads and the family members of the accused and she would have no grievance if the suitable compensation is paid to her and accordingly, the accused may be set free. 6. Whereas, Mr. Pujari, learned Additional Public Prosecutor, for the State, is not in a position to show that the trial Court has committed any error apparent, which requires this Court to take a different view and enhance the sentence, however, on the aspect of the compensation in lieu of sentence, he requested this Court that in the facts and circumstances of the case, this Court may pass the appropriate order. 7. We have heard the learned advocates for the respective parties and also gone through the impugned judgment and order and the evidence on record. We have also gone through the decision of the Hon'ble Apex Court in Ankush Shivaji Gaikwad (supra) and the affidavit filed by the mother of the deceased. We find that the trial Court while considering the evidence on record, has very elaborately discussed the evidence adduced before it and after appreciating and duly evaluating the same, has come to such a conclusion. Further, the learned Additional Public Prosecutor is not in a position to show any evidence to take a contrary view in the matter or that the approach of the Court below is vitiated by some manifest illegality or that the decision is perverse or that the Court below has ignored the material evidence on record. In that view of the matter, we are of the considered opinion that the Court below was completely justified in passing impugned judgment and order and accordingly, we confirm the conviction recorded by the trial Court. In that view of the matter, we are of the considered opinion that the Court below was completely justified in passing impugned judgment and order and accordingly, we confirm the conviction recorded by the trial Court. However, in the peculiar facts and circumstances of the case and taking into consideration the decision of the Hon'ble Apex Court Ankush Shivaji Gaikwad (supra) and the fact that the parties have arrived at a compromise and the mother of the deceased has by filing the affidavit, categorically stated that in view of compromise, if suitable compensation is paid, she has no grievance if the accused is set free, we are of the opinion that the rest of the sentence can be converted into compensation in view of provision of Section 357 of the Code, if Rs. 4,50,000/- is paid to the mother of the deceased towards compensation by the accused and accordingly, the accused may not to have undergo the remaining sentence of imprisonment, as has been awarded by the trial Court. 8. In view of the aforesaid discussion, Criminal Appeal No. 2963 of 2008, filed by the appellant - original accused No. 1, succeeds and the impugned judgment and order dated 13/10/2008 passed by the learned Additional Sessions Judge, Jamnagar in Sessions Case No. 124 of 2006 is modified to the aforesaid extent and it is held that in lieu of remaining sentence to be undergone as has been imposed by the trial Court, the accused shall pay a sum of Rs. 4,50,000/- (Rupees Four lakh fifty thousand only) towards compensation to the mother of the deceased. Accordingly, two cheques of Rs. 4,50,000/- in all, drawn on Bank of Baroda and the Axis Bank, Dhrol Branch, in the name of Zohraben, the mother of the deceased, have been handed over to her son - Basirbhai through learned advocate Mr. Manraj Barot. The aforesaid order shall be subject to the realization of the aforesaid cheques submitted by the accused. Accordingly, Criminal Appeal No. 3131 of 2008, filed by the State for enhancement of sentence, shall stand dismissed. Bail bonds, if any, shall stand cancelled. Registry to return the R&P, if any, to the trial Court forthwith.