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2019 DIGILAW 1002 (GUJ)

Vajeermiya Samsudden Kazi v. State of Gujarat

2019-10-21

ABDULLAH GULAMAHMED URAIZEE

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JUDGMENT : Abdullah Gulamahmed Uraizee, J. 1. These appeals emanates from the selfsame incident in respect of which two cross complaints came to be lodged. 2. Criminal Appeal No. 418 of 1998 is preferred by the appellants to assail the judgment and order on sentence dated 25.03.1998 passed by the learned Additional Sessions Judge, Kheda at Nadiad in Sessions Case No. 33 of 1993 whereunder while acquitting the co-accused persons, the appellant original accused No. 3 is convicted under Section 304(1) and Section 323 of Indian Penal Code ("I.P. Code" for short). For offence under Section 323 of I.P. Code he is sentenced to undergo for the period which he has already undergone and to pay fine of Rs. 2000/-, in default to suffer further simple imprisonment for 15 days while for an offence under Section 304(1) of I.P. Code he is sentenced to suffer rigorous imprisonment for five years and to pay fine of Rs. 10,000/-, in default to suffer further simple imprisonment for six months. 3. Criminal Appeal No. 445 of 1998 is preferred by the appellant to assail the judgment and order dated 25.03.1998 passed by the learned Additional Sessions Judge, Kheda at Nadiad in Sessions Case No. 226 of 1993 whereunder the appellant No. 1 is convicted under Section 323 while appellant No. 2 is convicted under Sections 323 & 324 of I.P. Code. The appellant No. 1 is sentenced to suffer imprisonment for 14 days for the offence under Section 323 of I.P. Code and to pay fine of Rs. 2000/-, in default to suffer further simple imprisonment for 15 days while appellant No. 2 is sentenced to suffer imprisonment for 13 days each for the offence under Sections 323 & 324 of I.P. Code. He is also directed to pay fine of Rs. 2000/- each under the said sections and in default thereof to suffer further simple imprisonment for 15 days. The appellants were not required to taken into custody as they had already undergone the substantive sentence of imprisonment pending trial. 4. Criminal Appeal No. 673 of 1998 is preferred by the appellant for enhancement of sentence imposed on the appellants of Criminal Appeal No. 445 of 1998. 5. The appellants of Criminal Appeal No. 418 of 1998 and appellants of Criminal Appeal No. 445 of 1998 are close relatives. 4. Criminal Appeal No. 673 of 1998 is preferred by the appellant for enhancement of sentence imposed on the appellants of Criminal Appeal No. 445 of 1998. 5. The appellants of Criminal Appeal No. 418 of 1998 and appellants of Criminal Appeal No. 445 of 1998 are close relatives. The incident happened on 09.01.1992 at about 3.30 p.m. on account of misunderstanding regarding theft of pumpkin in the field of Abdul Rahim. In the incident, Baxuddin died. Two separate complaints came to be filed in respect of the incident giving rise to two Sessions Case namely Sessions Case No. 33 of 1993 for the offence under Sections 302, 324, 323 and Section 504 read with Section 114 of I.P. Code and Sessions Case No. 226 of 1993 for the offence under Section 307 read with Sections 34, 323, 324, 447 and Section 504 of I.P. Code. 6. After conclusion of investigation, the charge-sheet was filed against the appellants in the Court of learned Judicial Magistrate First Class Court, Nadiad. As the offences were exclusively triable by the Court of Sessions, the learned Magistrate committed the case under Section 209 of the Code to the Court of Sessions, where the case came to be registered as Sessions Case No. 226 of 1993 and Sessions Case No. 33 of 1993. 7. The Sessions Court framed charges against the accused-appellants vide Exhibit-5. The same was read over and explained to the accused-appellants, who pleaded not guilty and claimed to be tried. The prosecution, therefore, adduced documentary and ocular evidence to prove the guilt of the accused-appellants. 8. Upon conclusion of the trial, the statement under Section 313 of the Code of the accused-appellants came to be recorded. The trial Court, after considering the evidence on record and arguments of learned APP and learned advocate for the appellants accused, convicted the appellants accused of the charges by the impugned judgment and order. 9. I have heard Mr. Darshan V. Shah, learned advocate for the appellants in Criminal Appeal No. 418 of 1998, Mr. S.A. Baqui, learned advocate for the appellants in Criminal Appeal No. 445 of 1998 and Mr. K.L. Pandya, learned APP for the appellant in Criminal Appeal No. 673 of 1998. 10. The appellants are close relatives and are residing in the same village. With the passage of time, they have settled their dispute. S.A. Baqui, learned advocate for the appellants in Criminal Appeal No. 445 of 1998 and Mr. K.L. Pandya, learned APP for the appellant in Criminal Appeal No. 673 of 1998. 10. The appellants are close relatives and are residing in the same village. With the passage of time, they have settled their dispute. Gulamnabi Rasulmiya Kazi-Appellant No. 1 of Criminal Appeal No. 418 of 1998, Vajeermiya Samsudden Kazi-Appellant No. 1 and Mustaqali Baxuddin Saiyad-Appellant No. 2 of Criminal Appeal No. 445 of 1998 are present in person in the Court. 11. The appellants and injured witness of Criminal Appeal No. 445 of 1998 have submitted their affidavit. It is taken on record. It is stated inter alia in paragraph No. 5 of the affidavit as under:- "5. That, during the pendency of both these appeals the parties have compromised both the above said matters, in order that peace and harmony may prevail between the two families and create good and amicable relations between them in their future. Both the parties resides in neighbourhood and are relatives of each other." 12. Mr. S.A. Baqui, learned advocate for the appellant, in view of the affidavit of the appellant, does not press Criminal Appeal No. 445 of 1998. 13. So far as the appellants of Criminal Appeal No. 418 of 1998 is concerned, in view of the settlement between the parties, Khatunben widow of Baxuddin Kazi, who is present in person in the Court is paid a sum of Rs. 1,30,000/- as compensation in terms of the settlement between the parties. She confirms that she has received Rs. 1,30,000/- in cash and has also passed receipt to acknowledge the same, which is taken on record. 14. Incident had happened in the year 1992, it is not brought to the notice of this Court that in the interregnum period no untoward incident has taken place between the parties or that the appellants have conducted themselves in any manner prejudicial to the law and order. The parties, who happens to be close relatives have with the passage of time and with the intervention of one Mr. Mukeshbhai Goverdhanbhai Valan, who is present in the Court, a common friend of both the parties, settled their dispute. Now, relations are restored and cordial between the parties. The parties, who happens to be close relatives have with the passage of time and with the intervention of one Mr. Mukeshbhai Goverdhanbhai Valan, who is present in the Court, a common friend of both the parties, settled their dispute. Now, relations are restored and cordial between the parties. The Court is informed that the relations between the parties are going to be further strengthened on account of matrimonial alliance between the children of both the families. I am, therefore, of the view that ends of justice will be served if the substantive sentence imposed on the appellants of Criminal Appeal No. 418 of 1998 is required to be reduced to already undergone while maintaining the sentence of fine. 15. As the parties have settled the dispute and peace and harmony is restored between the two families, I am, of the view that the Criminal Appeal No. 673 of 1998 preferred by the State for enhancement of sentence imposed on the appellant of Criminal Appeal No. 445 of 1998 deserves to be dismissed. 16. For the foregoing reasons, the Criminal Appeal No. 445 of 1998 stands dismissed as not pressed. 17. So far as Criminal Appeal No. 418 of 1998 is concerned, the judgment and order on sentence dated 25.03.1998 in Sessions Case No. 33 of 1993 passed by the learned Additional Sessions Judge, Kheda at Nadiad is hereby modified while maintaining the conviction, the substantive sentence of imprisonment is modified to already undergone without disturbing the punishment of fine. 18. Criminal Appeal No. 673 of 1998 is dismissed. 19. The accused-appellants are on bail and hence, the bail bonds stand cancelled and surety, if any, stands discharged. The rest of the judgment and order shall remain unaltered. 20. Record and Proceedings, be transmitted to the trial Court forthwith.