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2016 DIGILAW 256 (GUJ)

Jayantibhai Prabhubhai Patel v. State of Gujarat

2016-02-04

RAJESH H.SHUKLA

body2016
JUDGMENT : Rajesh H. Shukla, J. 1. Present Criminal Appeal is filed by the appellant- original accused under Section 374 of the Code of Criminal Procedure challenging the impugned judgment and order passed in Sessions Case No. 257 of 1997 by the learned Additional Sessions Judge, Court No. 18 at Ahmedabad on 18.06.1999 recording conviction and sentence of the appellant-original accused for the alleged offences punishable under Sections 330 and 323 of the Indian Penal Code, recording reasons for the same. 2. The facts of the present case briefly summarized are as follows: 3. As it transpires from the material and evidence on the record deceased Alkeshkumar Natwarlal Panchal was serving in the factory of the accused and the accused is alleged to have leveled allegation of theft and/or irregularities against the deceased for which deceased got upset and humiliated and consumed acid in the toilet of the factory. The deceased was taken to the hospital and succumbed to the death, for which initially on the basis of 'Janvajog' Entry No. 17/1999 inquiry was made. Thereafter, investigation was made and the FIR being CR. No. I-238/1997 was registered at Bapunagar Police Station. It was also required to be mentioned that mother of the deceased has given complaint before the Court of Magistrate and therefore M. Case No. 67 of 1997 was also registered and after further inquiry under Section 156(3) of the Code of Criminal Procedure the case was registered. 4. After investigation was over, the charge-sheet was filed and as the offence was triable by the court of Sessions, the case was committed to the City Civil and Sessions Court, Ahmedabad. 5. Thereafter, learned Additional Sessions Judge, City Civil and Sessions Court, Ahmedabad framed charges for the offences of the IPC and proceeded with the trial. 6. In order to bring home the charges leveled against the appellant -accused, the prosecution examined the witnesses including the victim and also produced documentary evidence which shall be referred to in the judgment hereinafter. 7. After recording the evidence of the prosecution witnesses was over, the learned Additional Sessions Judge, City Civil and Sessions Court, Ahmedabad recorded the further statement of the accused under Section 313 of Code of Criminal Procedure. 8. 7. After recording the evidence of the prosecution witnesses was over, the learned Additional Sessions Judge, City Civil and Sessions Court, Ahmedabad recorded the further statement of the accused under Section 313 of Code of Criminal Procedure. 8. After hearing learned APP as well as learned Advocate for the accused, the Additional Sessions Judge, City Civil and Sessions Court, Ahmedabad recorded the conviction of the appellant-original accused as stated above in the impugned judgment and order. 9. It is this judgment and order which has been assailed on the grounds stated in detail in the memo of appeal, inter alia, that the Additional Sessions Judge, City Civil and Sessions Court, Ahmedabad has failed to appreciate the material and evidence on the record. 10. Heard learned Advocate Ms. Bhavini Jani for learned Counsel Shri S.V. Raju for the appellant-original accused and learned Advocate APP Shri H.L. Jani for the Respondent-State. 11. Learned Advocate Ms. Bhavini Jani referred to the papers and the testimony of the witnesses in detail including the testimony of P.W. No. 1 Executive Magistrate who has recorded the dying declaration of the deceased and submitted that he has clearly stated about the cause for the suicide in his testimony. Learned Advocate Ms. Jani also referred to the other papers and submitted the ingredients for the offences punishable under Section 330 of the IPC are not attracted. It was submitted that dying declaration is there but it was not supported the case of the prosecution for the offence punishable under Section 330 of the IPC. She further referred to the FIR and the statement of the victim and submitted that the no case is made out against the present appellant and the Court below has erred in appreciating the material and evidence on the record. She submitted that there are discrepancies in the evidence inasmuch as the P.W.2 brother of the victim in his testimony at Exh. 12 has stated that the deceased could not able to speak and therefore, dying declaration could not have been recorded. She has therefore submitted that this aspect has not been corroborated in the testimony of P.W. No. 4 Dr. Nishitbhai Patel at Exh. 17 and P.W. No. 7 Dr. Rajendra Vishe at Exh. 27. She submitted that pursuant to this specific question, it has been appeared in the cross-examination that in the medical evidence at Exh. She has therefore submitted that this aspect has not been corroborated in the testimony of P.W. No. 4 Dr. Nishitbhai Patel at Exh. 17 and P.W. No. 7 Dr. Rajendra Vishe at Exh. 27. She submitted that pursuant to this specific question, it has been appeared in the cross-examination that in the medical evidence at Exh. 18 there is no endorsement that the patient was conscious and he was able to speak. Therefore, learned Advocate Ms. Jani submitted that Court below has failed to appreciate this material aspect and therefore, impugned judgment and order recording conviction may not be sustained. 12. In the alternative, learned Advocate Ms. Jani submitted that much time has elapsed from the date of the incident and the hearing of the present appeal and therefore, considering the facts and background in which the incident has occurred particularly when acquittal has been recorded for the offence punishable u/s. 306 of the IPC and conviction has been recorded only for the offence punishable u/s. 330 and 323 of the IPC, only the Court may consider for grant of benefit under the Probation of Offenders Act. Learned Advocate Ms. Jani also submitted that even before the Sessions Court prayer was made for grant of benefit under the Probation of Offenders Act. Considering the background of the facts as well as the fact that the accused is businessman without any antecedent and he had no motive or any intention and when the acquittal is recorded for the offence punishable u/s. 306 of the IPC, the benefit under Probation ought to have been granted, which has not been granted by the Court below and the same has to be considered subject to any strengthen condition including enhancement of fine. 13. Learned APP Shri H.L. Jani for the Respondent-State has referred to the testimony of witnesses including the testimony of P.W. No. 1 Executive Magistrate at Exh. 10 who has recorded the dying declaration. He submitted that in the dying declaration the victim has clearly stated about the cause for his suicide. Learned APP Shri Jani submitted that though the acquittal was recorded only for the offence punishable u/s. 306 of the IPC, the fact remains that conviction was recorded for the offences punishable u/s. 330 and 323 of the IPC. He has also referred to the testimony of other witnesses including P.W. No. 4-Dr. Patel at Exh. Learned APP Shri Jani submitted that though the acquittal was recorded only for the offence punishable u/s. 306 of the IPC, the fact remains that conviction was recorded for the offences punishable u/s. 330 and 323 of the IPC. He has also referred to the testimony of other witnesses including P.W. No. 4-Dr. Patel at Exh. 17 and submitted that Dr. Patel has stated in his testimony at E h.17 about the condition of the patient. He pointedly referred to the testimony and endorsement made in the treatment papers by P.W. No. 4 that "Patient is conscious and able to speak with difficulty." He therefore submitted that it cannot be said that the dying declaration is suffering any infirmity in light of the testimony of the Executive Magistrate as well as this medical evidence in the form of testimony of Dr. Patel at Exh. 17. Learned APP Shri Jani therefore submitted that if the facts and the background of the case are considered, the accused who was employer and the owner of the factory where the deceased was working has extern pressure, which may be imagine from the fact that the deceased has committed suicide. Therefore, learned APP Shri Jani submitted that charge was also liberal and framed for the offence punishable u/s. 330 of the IPC that the accused wanted confession or admission for the said offence alone. Therefore, bare perusal of Section 330 of the IPC suggests that the offence u/s. 330 of the IPC is committed for which conviction has been recorded. He therefore submitted that it cannot be said that Section 330 of the IPC would not be attracted as submitted by learned Advocate Ms. Jani for the appellant. Learned APP Shri Jani also submitted that manner in which the offence is committed and the severity of the offence which provided for the sentence up to 7 years and therefore, grant of benefit under probation may not be justified. He submitted that the same request was made and the Sessions court had declined and therefore, it may not be entertained and present appeal may be dismissed. 14. In view of these rival submissions and considering the totality of the facts and circumstances with appreciation and scrutiny of the evidence in detail, the moot question which is required to be considered is whether appeal can be entertained or not. 15. 14. In view of these rival submissions and considering the totality of the facts and circumstances with appreciation and scrutiny of the evidence in detail, the moot question which is required to be considered is whether appeal can be entertained or not. 15. Though the submission has been made by learned Advocate Ms. Jani on merits referring to the aspect of dying declaration suggesting about some kind of infirmity on the ground that deceased was not conscious and not able to speak and therefore it raises doubt, which is ultimately misconceived. In fact, as rightly emphasized by learned APP Shri Jani that Dr. Patel at Exh. 17 has recorded in the treatment papers regarding endorsement that patient was able to speak with difficulty and therefore, considering the testimony of the Executive Magistrate at Exh. 9 corroborated by the testimony of P.W. No. 4 at Exh. 17, the dying declaration cannot be brushed aside. However, leaving it there, since the acquittal has been recorded for the offence punishable u/s. 306 of the IPC, the record of the present appeal is required to be considered only for the aspect of other offences punishable u/s. 323 and 330 of the IPC recording conviction. The offence punishable u/s. 330 which provides for causing hurt to extort confession, or to compel restoration of property or valuable would certainly be attracted when the accused had called the victim with the purpose as stated above and therefore, the submission that offence punishable u/s. 330 of the IPC would not be attracted cannot be believed or accepted. 16. However, alternate submission made by learned Advocate Ms. Jani that while entertaining conviction the benefit under the Probation of Offenders Act may be extended. 17. Considering the background of the facts, the manner in which it has occurred and the fact that the accused is businessman without any antecedent and even than offence is not committed with any motive, particularly when the acquittal for offence u/s. 306 of the IPC was also recorded by the Trial Court, which requires close scrutiny of the evidence. Considering the totality of the facts and circumstances, it would reveal that much time has elapsed as the incident is said to have occurred in the year 1997, the conviction has been recorded in the year 1999 and the present appeal is heard in the year 2016. Considering the totality of the facts and circumstances, it would reveal that much time has elapsed as the incident is said to have occurred in the year 1997, the conviction has been recorded in the year 1999 and the present appeal is heard in the year 2016. The documents would indicate that as an employer the accused has called the victim who was working in his factory regarding some irregularities and thereafter, the incident has occurred. Though, initially the mother has lodged the complaint with the Magistrate for other offence u/s. 307 of the IPC, it was not believed. However, considering the manner in which the offence is said to have committed, the lapse of time as well as the background of the accused and the complainant, the Court is of the opinion that benefit should be extended while exercising discretion under Probation of Offenders Act. Section 4 of the Probation of Offenders Act provides for the powers of the Court to release the offender on probation of good conduct. The statements of objects and reasons and underlying philosophy of the Act has the idea of releasing certain offenders on probation of good conduct instead of sentencing imprisonment. Therefore, the same has to be considered read with Section 360 of the Code of Criminal Procedure. A useful reference can be made to the judgment of the Hon'ble Apex Court reported in AIR 2000 SC 1677 in the case of Dalbir Singh v. State of Haryana, wherein it has been observed that, "In the matter of release of a person convicted of an offence on probation of good conduct the Parliament has made it clear that it has to be only if the Court forms the opinion that it is expedient to release him on probation for his good conduct regard being had to the circumstances of the case. One of the circumstances which cannot be sidelined in forming the said opinion is "the nature of the offence." Parliament has left it to the Court to decide when and how the Court should form such opinion...." 18. The Hon'ble Apex Court has considered this aspect leaving it to the discretion of the Court, therefore the Court has to firm an opinion and as discussed above in the opinion of this Court, this Court has exercised the discretion considering the nature of offence as well as other circumstances. 19. The Hon'ble Apex Court has considered this aspect leaving it to the discretion of the Court, therefore the Court has to firm an opinion and as discussed above in the opinion of this Court, this Court has exercised the discretion considering the nature of offence as well as other circumstances. 19. A useful reference can also be made to the observation made by the Hon'ble Apex Court in a judgment reported in (2007) 2 GLH 154 in the case of Gurumukhdas Topandas v. State of Gujarat and also the judgment rendered by this Court in Criminal Appeal No. 309 of 2000 dated 27.03.2015. 20. Thus, in these circumstances considering the time lag as well as the nature of offence and other relevant factors and also considering that the appellant is businessman without any antecedent, present appeal deserves to be allowed partly to the limited extent on granting benefit of probation. Therefore, while entertaining conviction as it is, the benefit under Probation of Offenders Act deserves to be extended to the appellant- original accused, subject to the enhancement of the fine to the tune of Rs. 50,000/- (Rupees Fifty Thousand only) to be deposited with the City Civil and Sessions Court, Ahmedabad. 21. The Appellant-accused is, therefore, granted the benefit under the Probation of Offenders Act as provided under Section 4 of the Act read with Section 361 of the Code of Criminal Procedure. The appellant-accused is ordered to be released on probation of good conduct, subject to his executing bond of Rs. 10,000/- (Rupees Ten thousand only) for good moral conduct with one Surety of Rs. 10,000/- (Rupees Ten thousand only) or like amount, failing which the Court below shall issue non-bailable warrant of arrest against the appellant-accused to serve the sentence imposed by the Trial Court. The order of substantive sentence imposed on appellant-accused shall remain under suspension till the period of bond i.e. for a period of two years and if there is any breach of condition of the bond executed under Section 4 of the Probation of Offenders Act, the Trial Court shall have the liberty to issue non-bailable warrant against the appellant -accused for serving the sentence imposed against him. The amount of fine to the tune of Rs. The amount of fine to the tune of Rs. 50,000/- (Rupees Fifty Thousand only) shall be deposited at the time of execution of bond with the Trial Court (City, City and Sessions Court, Ahmedabad) and same may be disbursed on proper verification to the family of the victim on usual terms and conditions. 22. With the aforesaid observation, present appeal deserves to be allowed and accordingly stands allowed partly. 23. R&P is ordered to be sent back forthwith.