Research › Search › Judgment

Gujarat High Court · body

2015 DIGILAW 986 (GUJ)

State of Gujarat v. Anopbhai Mohanbhai Gohil

2015-10-06

G.B.SHAH, K.S.JHAVERI

body2015
JUDGMENT : K.S. Jhaveri, J. 1. This appeal under Section 377 of the Code of Criminal Procedure, 1973 is preferred for enhancement of sentence imposed by judgment and order dated 31.1.2006 passed by Additional Sessions Judge, Fast Track Court No. 12, Vadodara, in Sessions Case No. 187 of 2005, whereby the respondent-original accused was convicted for the offence punishable under Section 304, Part-I of the Indian Penal Code and sentenced to suffer rigorous imprisonment of five years and to pay fine of Rs. 500/-, in default of making payment of fine, the accused shall undergo further simple imprisonment of two months. 2. The facts in brief giving rise to the filing of present appeal are as under: 2.1 On 25.12.2004, the respondent-accused of this case lodged the complaint bearing C.R. No. I-111/2004 before Vadodara Taluka Police Station for the offence punishable under Section 302 of the Indian Penal Code stating that on 24.12.2004 at about 10.30 p.m. in the night, the complainant and the deceased Jashabhai @ Jashvantsinh went to Gotri at Narmada Canal. Three persons met them there and out of these persons, one person had given a fist blow on the chest of the deceased and the respondent-accused ran away from the place. On next day, he went to the police station to give complaint. The police and the respondent-accused went to Village-Ankodiya, where the police found dead body of Jashvantsinh @ Jashabhai Chauhan. On these facts, the police registered the offence vide C.R. No.I-111/2004 for the offence punishable under Section 302 of the Indian Penal Code. After investigation, police found that the complaint filed by the complainant-accused is false and after investigation charge sheeted against said complainant-accused, respondent herein, was filed in the Court of Judicial Magistrate, First Class, Vadodara. However, as the offence punishable under Section 302 of IPC was exclusively triable by the Court of Sessions, the case was committed to the Court of Sessions, Vadodara. The accused pleaded not guilty and claimed to be tried. 2.2 During the trial, the prosecution had examined following witnesses; Sr. However, as the offence punishable under Section 302 of IPC was exclusively triable by the Court of Sessions, the case was committed to the Court of Sessions, Vadodara. The accused pleaded not guilty and claimed to be tried. 2.2 During the trial, the prosecution had examined following witnesses; Sr. No. Name of the witness 1 Karansinh Bhavsinh Chauhan 2 Madhuben Karansinh 3 Dahyabhai Ranchhodbhai Parmar 4 Pravinsinh Prabhatsinh Rathod 5 Panch witness-Rameshbhai Bhikhabhai Chauhan 6 Panch witness-Rameshbhai Bachubhai 7 Raheman Fakirbhai 8 Firojaben Rahemanbhai Ghanchi 9 Anvarali Gemalsinh Rana 10 Sumiben Mangalbhai Vasava 11 Bhikhabhai Shankarbhai Ghanchi 12 Panch witness-Ahemad Malangbhai Mansuri 13 Naginbhai Ambalal, ASI 14 Vijaysinh Kalusinh Rathod 15 Dalsukhbhai Hirabhai Raval 16 Devshankar Rajabhai Ghamal 17 Dr/ Narendra Devraj Verma 2.3 The prosecution had also produced and relied upon following documentary evidence:- Sr. No. Description Exh. 1 Panchnama of the body of the accused 12 2 Panchnama of clothes 17 3 Panchnama of the clothes of the dead body 22 4 Complaint 29 5 Inquest panchnama 30 6 Panchnama of the place of offence 31 7 Police report to be sent with postmortem 33 8 P.M. of dead body 34 9 Case paper of SSG Hospital 36 10 Serological report 37 11 Muddamal sent analysis 38 2.4 At the end of trial, the Court below recorded further statement of accused person under Section 313 of Cr.P.C. and thereafter, passed the impugned judgment and order of acquittal, which has led to the filing of present appeal. 3. Learned APP, Ms. Shah appearing for the appellant-State has taken us through the oral as well as documentary evidence and contended that the trial Court has committed an error in imposing lesser sentence upon the accused inspite of voluminous evidence against him and also contended that the trial Court ought not to have imposed such a lesser punishment. She submitted that the prosecution has examined 17 witnesses in support of its case. The prosecution has also produced 11 documentary evidences on the record of the case. However, without appreciating those documentary as well as oral evidence available on the record of the case in its proper perspective, learned Judge has erred in imposing lesser punishment. She further submitted that the learned Judge has also erred in not properly appreciating the gravity of the offence committed by the accused while imposing the sentence and thereby committed grave error by imposing lesser punishment. She further submitted that the learned Judge has also erred in not properly appreciating the gravity of the offence committed by the accused while imposing the sentence and thereby committed grave error by imposing lesser punishment. She also submitted that the learned Judge ought to have imposed maximum sentence on the present accused as provided under Section 302 of Indian Penal Code. Hence, impugned judgment and order passed by learned Judge in imposing the lesser sentence deserves to be modified by this Hon'ble Court and the sentence imposed to the accused deserves to be enhanced to maximum sentence as provided under Section 302 of IPC. She also submitted that the learned Judge failed to appreciate the seriousness of the offence committed by the accused while imposing the sentence. The learned Judge also failed to appreciate that there is no sufficient and reasonable cause for the learned Judge to impose lesser punishment. She also submitted that the learned Judge failed to appreciate that there is no any mitigating circumstance to impose lesser punishment and it is very clear from the facts and circumstances of the case and the material available on record of the case that there is aggravating circumstances in which Hon'ble Judge ought to have imposed the maximum sentence as provided under the law. 4. On the other hand, learned counsel for the respondent-accused has contended that so far as imposition of punishment is concerned, learned trial Judge has not committed any error. He also submitted that after considering the evidence on record, the learned trial Judge has imposed proper punishment upon the accused, which cannot be said to be less. He submitted that since it is found by the trial Court that the accused is guilty of culpable homicide, the sentence imposed is proper and from the evidence on record, it cannot be said that the accused has committed an offence under Section 302 of IPC. He, therefore, submitted that considering the overall circumstances of the case, the accused cannot be said to be guilty of offence punishable under Section 302 of IPC and, therefore, present appeal may be dismissed. 5. We have heard learned APP for the appellant and learned advocate for the respondent-accused. We have also perused the record and gone through the impugned judgment. We have also gone through the evidence on record, particularly medical evidence. 5. We have heard learned APP for the appellant and learned advocate for the respondent-accused. We have also perused the record and gone through the impugned judgment. We have also gone through the evidence on record, particularly medical evidence. We have also considered the statements of the witnesses being PW-1, PW-3, PW-11 and PW-13 and all these witnesses have supported the case of the prosecution and none of them have turned hostile. We have also gone through the impugned judgment. In paragraph 15 of the impugned judgment it is observed by the trial Court that the following facts have been established. "(i) Accused and the deceased were going for labour work in a tempo of Rahemanbhai. (ii) On the date of the incident, the accused and the deceased went to Ankodiya village as the tempo was going to that place. (iii) Thereafter, Rahemanbhai came back to Vadodara with his tempo, however, the accused and the deceased did not return in said tempo. (iv) On the day of incident, the accused went to the house of Rahemanbhai late at night and wife of Rahemanbhai had given food to him. (v) Next morning, wife of Rahemanbhai, viz. Firojaben had given Rs. 50/- to the accused for treatment of the injury on his leg. (vi) On 25.12.2004 and 26.12.2004, the accused took treatment for his leg injury at SSG Hospital and in the case history it is stated that he has received such injury on 24.12.2004 at about 11 p.m. while he was running near Narmada Canal at Ankodiya Village, and his leg had dashed with the milestone. (vii) On 25.12.2004, the accused took the police to the place of incident, where dead body of the deceased was found." 5.1 It has been recently held by the Hon'ble Supreme Court in the case of Raj Bala v. State of Haryana & Ors. Etc. in Criminal Appeal Nos. 1049 to 1050 of 2015 decided on 18.2.2015, more particularly in paragraph Nos. 1 and 2, as under:-- "1. In Gopal Singh v. State of Uttrakhand, while focusing on the gravity of the crime and the concept of proportionality as regards the punishment, the Court had observed:-- "Just punishment is the collective cry of the society. While the collective cry has to be kept uppermost in the mind, simultaneously the principle of proportionality between the crime and punishment cannot be totally brushed aside. While the collective cry has to be kept uppermost in the mind, simultaneously the principle of proportionality between the crime and punishment cannot be totally brushed aside. The principle of just punishment is the bedrock of sentencing in respect of a criminal offence. A punishment should not be disproportionately excessive. The concept of proportionality allows a significant discretion to the Judge but the same has to be guided by certain principles. In certain cases, the nature of culpability, the antecedents of the accused, the factum of age, the potentiality of the convict to become a criminal in future, capability of his reformation and to lead an acceptable life in the prevalent milieu, the effect-propensity to become a social threat or nuisance, and sometimes lapse of time in the commission of the crime and his conduct in the interregnum bearing in mind the nature of the offence, the relationship between the parties and attractability of the doctrine of bringing the convict to the value-based social mainstream may be the guiding factors. Needless to emphasise, these are certain illustrative aspects put forth in a condensed manner. We may hasten to add that there can neither be a straitjacket formula nor a solvable theory in mathematical exactitude. It would be dependent on the facts of the case and rationalised judicial discretion. Neither the personal perception of a Judge nor self-adhered moralistic vision nor hypothetical apprehensions should be allowed to have any play. For every offence, a drastic measure cannot be thought of. Similarly, an offender cannot be allowed to be treated with leniency solely on the ground of discretion vested in a court. The real requisite is to weigh the circumstances in which the crime has been committed and other concomitant factors which we have indicated hereinbefore and also have been stated in a number of pronouncements by this Court. On such touchstone, the sentences are to be imposed. The discretion should not be in the realm of fancy. It should be embedded in the conceptual essence of just punishment." [Emphasis added] 2. Seven years prior to that, in Shailesh Jasvantbhai v. State of Gujarat, it has been held that:-- "7. The law regulates social interests, arbitrates conflicting claims and demands. Security of persons and property of the people is an essential function of the State. It could be achieved through instrumentality of criminal law. Seven years prior to that, in Shailesh Jasvantbhai v. State of Gujarat, it has been held that:-- "7. The law regulates social interests, arbitrates conflicting claims and demands. Security of persons and property of the people is an essential function of the State. It could be achieved through instrumentality of criminal law. Undoubtedly, there is a cross-cultural conflict where living law must find answer to the new challenges and the courts are required to mould the sentencing system to meet the challenges. The contagion of lawlessness would undermine social order and lay it in ruins. Protection of society and stamping out criminal proclivity must be the object of law which must be achieved by imposing appropriate sentence. Therefore, law as a cornerstone of the edifice of "order" should meet the challenges confronting the society. Friedman in his Law in Changing Society stated that: "State of criminal law continues to be-as it should be - a decisive reflection of social consciousness of society." Therefore, in operating the sentencing system, law should adopt the corrective machinery or deterrence based on factual matrix. By deft modulation, sentencing process be stern where it should be, and tempered with mercy where it warrants to be. The facts and given circumstances in each case, the nature of the crime, the manner in which it was planned and committed, the motive for commission of the crime, the conduct of the accused, the nature of weapons used and all other attending circumstances are relevant facts which would enter into the area of consideration. 8. Therefore, undue sympathy to impose inadequate sentence would do more harm to the justice system to undermine the public confidence in the efficacy of law, and society could not long endure under such serious threats. It is, therefore, the duty of every court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed, etc. This position was illuminatingly stated by this Court in Sevaka Perumal v. State of T.N." [Emphasis supplied] And again:-- "The court will be failing in its duty if appropriate punishment is not awarded for a crime which has been committed not only against the individual victim but also against the society to which the criminal and the victim belong. This position was illuminatingly stated by this Court in Sevaka Perumal v. State of T.N." [Emphasis supplied] And again:-- "The court will be failing in its duty if appropriate punishment is not awarded for a crime which has been committed not only against the individual victim but also against the society to which the criminal and the victim belong. The punishment to be awarded for a crime must not be irrelevant but it should conform to and be consistent with the atrocity and brutality with which the crime has been perpetrated, the enormity of the crime warranting public abhorrence and it should "respond to the society's cry for justice against the criminal"." 6. From the aforesaid facts, it is established that on the date of the incident, the accused and the deceased went in the tempo of Rahemanbhai to village-Ankodiya, however, they did not return with Rahemanbhai. It is also established that the accused was there till 11 p.m. and from the chain of circumstances it is established that the quarrel must have took place between the accused and the deceased. Therefore, the accused is rightly found guilty of the offence under Section 304, Part-I of IPC and we are in complete agreement with the view taken by the trial Court, however, we find that the sentence imposed by the trial Court is inadequate and it is required to be enhanced. We find that there were five injuries in column 17 of postmortem report and the cause of death is said to be rupture of liver. Not only that the circumstances goes to prove that the offence is committed by the accused. In view of this, no mercy could be shown towards the accused. Therefore, we enhance the sentence imposed by the trial Court and the accused is now ordered to undergo rigorous imprisonment of ten years instead of five years imposed by the trial Court by the impugned judgment. 7. For the foregoing reasons, this appeal is allowed. The impugned judgment and order dated 31.1.2006 passed by Additional Sessions Judge, Fast Track Court No. 12, Vadodara, in Sessions Case No. 187 of 2005 is modified and the sentence imposed by the impugned judgment is enhanced from five years rigorous imprisonment to ten years rigorous imprisonment. Remaining part of the impugned judgment shall remain unaltered. The impugned judgment and order dated 31.1.2006 passed by Additional Sessions Judge, Fast Track Court No. 12, Vadodara, in Sessions Case No. 187 of 2005 is modified and the sentence imposed by the impugned judgment is enhanced from five years rigorous imprisonment to ten years rigorous imprisonment. Remaining part of the impugned judgment shall remain unaltered. Since the accused is on bail, he shall surrender before the jail authorities within a period of ten weeks from today to serve the remaining period of sentence. Bail bond of the accused stands cancelled. Record and Proceedings, if lying here, be sent back to the concerned trial Court forthwith.