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2016 DIGILAW 397 (GUJ)

Amitji Amarsinh Thakor v. State of Gujarat

2016-02-18

RAJESH H.SHUKLA

body2016
JUDGMENT : Rajesh H. Shukla, J. 1. The present Appeal is filed by the Appellants - Original Accused persons under Section 376 of the Code of Criminal Procedure challenging the impugned judgment and order rendered in Special Atrocity Case No. 16 of 2011 by the learned Additional Sessions Judge and Special Judge, Gandhinagar dated 19.8.2013 recording conviction of the Appellants - Accused persons for the offences under Section 323of the Indian Penal Code imposing the sentence of SI for 15 days and fine of Rs. 1000/- by each of the Appellants - Accused persons. The facts of the case briefly summarized are as follows. 2. On 8.1.2011, the Complainant came out of her house on hearing the abuses to the husband and the children and she found that the Appellants - Accused persons were abusing them. Thereupon the Complaint is said to have intervened for not abusing by filthy language. The Appellants - Accused persons are said to have assaulted the Complainant and given her a slap. Thereafter when the sister-in-law and brother-in-law came, the Appellants - Accused persons ran away while further giving abuses about the caste which ultimately led to the complaint being II CR No. 6/2011. 3. On the basis of the complaint, the investigation was made and as the case is triable by the learned Special Judge, it was committed before the learned Special Judge (Atrocity). The learned Special Judge proceeded with the trial on appreciation of the material and evidence and recorded the conviction of the Appellants - Accused persons as stated herein above. It is this judgment and order which has been assailed in the present Appeal by the Appellants - Accused persons on the grounds stated in the Appeal. 4. Heard learned Advocate Shri A.B. Gateshaniya for the Appellants - Accused persons and learned APP Shri H.L. Jani for the Respondent - State of Gujarat. 5. Learned Advocate Shri A.B. Gateshaniya for the Appellants - Accused persons referred to the testimony of the Dr. Parul Shankarlal Parasara PW-1 at Exh. 10 referring to the history and also the testimony of PW-2 and PW-3 at Exh. 13 and 15 who turned hostile. Learned Advocate Shri Gateshaniya also referred to the other evidence and the testimony of PW-4 at Exh. 17 and submitted that it raises doubt about the manner in which the certificate is issued. Parul Shankarlal Parasara PW-1 at Exh. 10 referring to the history and also the testimony of PW-2 and PW-3 at Exh. 13 and 15 who turned hostile. Learned Advocate Shri Gateshaniya also referred to the other evidence and the testimony of PW-4 at Exh. 17 and submitted that it raises doubt about the manner in which the certificate is issued. Learned Advocate Shri Gateshaniya referred to and relied upon the judgment of the High Court reported in 2007 (3) GLH 701 in case of Rafikbhai S. Dodiya and Ors. v. State of Gujarat. He also referred to and relied upon the judgment reported in 2011(0) GLHEL-HC 224747 in case of Frukshah Latifshah Diwan v. State of Gujarat. 6. Alternatively, it was submitted that while maintaining the conviction, the court may impose the fine instead of imprisonment considering the background of the facts that they have been neighbours having a cordial relation and therefore the present Appeal may be allowed. 7. Learned APP Shri H.L. Jani resisted the Appeal and also referred to the evidence and submitted that the assault and injuries is established. However, he submitted that the defect in the investigation is not fatal. He submitted that in any case the judgment reported in 2009 (0) GLHEL-SC 43618 in case of State of M.P. v. Chunnilal @ Chunni Singh provided that even if the investigation is faulty, but, if the charges are also for the offences under the IPC along with the offence under the Atrocity Act, the same could be investigated for the offence under the IPC and it would not vitiate the entire investigation and trial. Learned APP Shri H.L. Jani therefore submitted that appropriate order may be passed with regard to the alternate submission while maintaining the conviction. 8. In view of this rival submissions and having regard to the background of the facts and circumstances, the injury to the complainant is established by medical evidence in the form of testimony of Dr. Parul PW-1 at Exh. 10. The injury certificate is also produced at Exh. 11 which refer to a simple injury. At the same time, the incident has occurred in the house and the testimony of PW-4 at Exh. Parul PW-1 at Exh. 10. The injury certificate is also produced at Exh. 11 which refer to a simple injury. At the same time, the incident has occurred in the house and the testimony of PW-4 at Exh. 17 refer to the manner in which the certificate is issued and therefore the acquittal has been recorded by the court below for the charges for the offence under the Atrocity Act which does not call for any interference. Therefore, the moot question is with regard to the conviction for the offence under Section 323 IPC. 9. The incident had occurred over a trivial matter with regard to cutting a branch of a tree due to obstruction to the flying kites by the children of the Complainant. They were otherwise neighbours and having a cordial relations as admittedly stated by the Complainant where she has stated that they had good relations and there was a verbal altercation over a trivial matter. It is in these circumstance the alternate prayer made by the learned Advocate for the Appellants for enhancement of fine and modification in the sentence require consideration. 10. The provisions of Section 323 clearly provide that it could be imprisonment for a term which may extend to one year or with a fine which may extend to one thousand rupees, or with both. 11. Therefore, considering the totality of the facts and circumstances, the interest of justice would be served, if the alternate submission made by learned Advocate Shri A.B. Gateshaniya for the Appellants - Accused persons for modification of the sentence only while maintaining the conviction is accepted. 12. Therefore the present Appeal deserves to be allowed only on the aspect of modification of sentence, which is substituted in place of SI, which is set aside. However, in lieu of such sentence, the Appellants are directed to pay towards the compensation under Section 357 of the Code of Criminal Procedure, to the victim to the extent of Rs. 1000/- (Rupees One thousand) each. It shall be deposited with the Sessions Court at Gandhinagar within a period of one month, failing which the Sessions Court will be at liberty to issue non-bailable warrant. 13. After the amount of compensation as stated above is deposited, the disbursement is directed to be made to the victim on proper verification on usual terms. The present Appeal stands allowed partly to the aforesaid extent.