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2019 DIGILAW 1038 (GUJ)

Rajesh Manubhai Patel v. State of Gujarat

2019-10-23

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. 2551 of 2008 is preferred by the appellant under Section 374 of the Code of Criminal Procedure, 1973 ("the Code" for short) to assail the judgment and order on sentence dated 22.09.2008 passed by the learned Additional City Sessions Judge, Court No. 4, Ahmedabad in Sessions Case No. 143 of 2008, whereunder, while acquitting the co-accused persons, the appellants (original accused Nos. 1 & 2) came to be convicted for the offence under Sections 324 & 326 read with Section 34 of the Indian Penal Code ("I.P. Code" for short), the appellants are also acquitted for the offence under Sections 307, 146, 147, 148 and Section 135(1) of the Bombay Police Act ("B.P. Act" for short). The appellants are sentenced to suffer rigorous imprisonment for 3 years and to pay fine of Rs. 10,000/-, in default to suffer further simple imprisonment for 1 month for the offence under Section 324 while they are sentenced to suffer rigorous imprisonment for 5 years and to pay fine of Rs. 25,000/-, in default to suffer further simple imprisonment for 2 months. 3. Criminal Appeal No. 2533 of 2008 is preferred under Section 374 of the Code to assail the judgment and order on sentence dated 22.09.2008 passed by the learned Additional City Sessions Judge, Court No. 4, Ahmedabad in Sessions Case No. 263 of 2005, whereunder, while acquitting the co-accused persons, the appellant Nos. 1 & 2 are convicted under Sections 307, 324 read with Section 34 of I.P. Code and Section 27 of the Arms Act. They are acquitted for the offence under Section 135 of B.P. Act. The appellants are sentenced to suffer rigorous imprisonment for 5 years and to pay fine of Rs. 25,000/-, in default to further suffer simple imprisonment for 1 month while appellant No. 3 is sentenced to suffer rigorous imprisonment for 5 years and to pay fine of Rs. 25,000/-, in default to suffer further simple imprisonment for 2 months. 4. All the appellants are sentenced to suffer rigorous imprisonment for 3 years and to pay fine of Rs. 10,000/-, in default to suffer further simple imprisonment for 1 month for the offence under Section 324 of I.P. Code. 25,000/-, in default to suffer further simple imprisonment for 2 months. 4. All the appellants are sentenced to suffer rigorous imprisonment for 3 years and to pay fine of Rs. 10,000/-, in default to suffer further simple imprisonment for 1 month for the offence under Section 324 of I.P. Code. The appellant No. 2 is sentenced to suffer rigorous imprisonment for 7 years and to pay fine of Rs. 25,000/-, in default to suffer further simple imprisonment for 3 months for the offence under Section 27 of the Arms Act. 5. Shorn off unnecessary details, the facts giving rise to the present appeals as could be gathered from the impugned judgment and connected material are that on 18.07.1999 at about 8.30 p.m., an altercation took place between Alkesh Purshottamdas Patel (P.W. 2) original complainant of Sessions Case No. 263 of 2005 and the appellants of Criminal Appeal No. 2551 of 2008. As a fallout of this altercation, later in the night at about 10.15 p.m., another incident happened between the appellants of both the appeals. Therefore, in respect of these incident, a cross complaint came to be lodged with Meghaninagar Police Station. I-C.R. No. 146 of 1999 was registered at the instance of Alkesh Purshottamdas Patel (P.W. 2) of Sessions Case No. 263 of 2005 for the offence under Sections 307, 114 of I.P. Code, Section 135(1) of B.P. Act and Section 25(1)(b)(a) of the Arms Act while I-C.R. No. 147 of 1999 was registered at the instance of Rajesh Manubhai Patel (P.W. 1) of Sessions Case No. 143 of 2005 for the offence punishable under Sections 146, 147, 148, 149 and 307 of I.P. Code and Section 135(1) of B.P. Act. 6. The learned trial Judge convicted the appellants of both the appeals as aforesaid. 7. After conclusion of the investigation, charge-sheet was filed in the Court of learned Metropolitan Magistrate, Ahmedabad 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 City Sessions Court, Ahmedabad where they were registered as Sessions Case No. 263 of 2005 and Sessions Case No. 143 of 2005. 8. The Sessions Court framed charges against the accused-appellants vide Exhibit-2 in Sessions Case No. 263 of 2005 & Sessions Case No. 143 of 2005. 8. The Sessions Court framed charges against the accused-appellants vide Exhibit-2 in Sessions Case No. 263 of 2005 & Sessions Case No. 143 of 2005. 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. 9. 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. 10. I have heard Mr. Yogesh Lakhani, learned senior advocate assisted by Mr. Pravin Gondaliya, learned advocate for the appellants in Criminal Appeal No. 2551 of 2008, Mr. Panam C. Soni, learned advocate for the appellants in Criminal Appeal No. 2533 of 2008 and Mr. K.L. Pandya, learned APP for the respondent in both the appeals. The Registry is directed to accept the appearance of Mr. Panam C. Soni as learned advocate for original complainant in Criminal Appeal No. 2551 of 2008. 11. Mr. Rajesh Manubhai Patel, Mr. Jayantibhai Mohanbhai Patel and Mr. Rameshbhai Mohanbhai Patel-original complainant and injured witnesses respectively in Criminal Appeal No. 2551 of 2008 and Mr. Alkesh Purshottamdas Patel-original complainant in Criminal Appeal No. 2533 of 2008 are present in person in the Court. They have submitted their respective affidavits wherein they have stated in paragraph No. 4 as under:- "4. It is submitted that the incident was of year 1998 and by passage of time the relations between parties have revived and no untoward incident has occurred/happened between the parties during this period. I state and submit that the amicable settlement/compromise has been arrived at between both side parties without any undue coercion/threat/pressure and what happened in past was under sudden heat and aggravation which is mourned by both side parties." 12. They confirm that they have sworn the affidavits voluntarily without there being any force or coercion. They further stated that with the passage of time they have decided to settle the issue and they are residing in the nearby locality and relations between them are cordial. They confirm that they have sworn the affidavits voluntarily without there being any force or coercion. They further stated that with the passage of time they have decided to settle the issue and they are residing in the nearby locality and relations between them are cordial. They further stated that no other untoward incident had happened between them in the interregnum period and they had not have any criminal antecedents. They have, therefore, jointly urged that the Court may pass appropriate order in light of the settlement between them. 13. The parties have with the passage of time settled their dispute. 14. So far as the convictions of appellant No. 2 of Criminal Appeal No. 2533 of 2008 for the offence under Section 27 of the Arms Act is concerned, it emerges from the evidence that at the time of the incident, he was carrying licensed fire arm from which he is alleged to have open firing in the air. 15. Section 27 of the Arms Act reads as under:- "27. Punishment for using arms, etc. - (1) Whoever uses any arms or ammunition in contravention of section 5 shall be punishable with imprisonment for a term which shall not be less than three years but which may extend to seven years and shall also be liable to fine. (2) Whoever uses any prohibited arms or prohibited ammunition in contravention of section 7 shall be punishable with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life and shall also be liable to fine. (3) Whoever uses any prohibited arms or prohibited ammunition or does any act in contravention of section 7 and such use or act results in the death of any other person, shall be punishable with death." 16. Though, the learned trial Judge has not satisfied in the impugned judgment as to how under which provision of Section 27 of Arms Act, the appellant is convicted, but, it appears that he is convicted under sub-section (1) which is in respect of use of fire arm or ammunition in contravention of Section-5. Though, the learned trial Judge has not satisfied in the impugned judgment as to how under which provision of Section 27 of Arms Act, the appellant is convicted, but, it appears that he is convicted under sub-section (1) which is in respect of use of fire arm or ammunition in contravention of Section-5. Again, Section-5 provides that no person can (a) [use, manufacture], sell, transfer, convert, repair, test or prove, or (b) expose or offer for sale or transfer or have in his possession for sale, transfer, conversion, repair, test or proof unless he holds a license in that behalf issued in accordance with the provisions of the Act and Rules made therein. It is undisputed fact as is emerging from the record that the appellant was holding license duly issued by the competent authority for use of the firearms. Hence, in my view, the conviction of the appellant for the offence under Section 27 of the Arms Act becomes highly succinctible. Moreover, it emerges from the Exhibit-37, Panchnama of place of incident (Sessions Case No. 263 of 2005) that the police did not recover anything therefrom. Additionally, Exhibit-46, FSL report reveals that though the firearm was used but no opinion could be given regarding the time of firing from Exhibit-3 firearms. The appellant used his firearm in the instant in the open fire in the air. The Police had recovered empty cartridge from the place of incident, but, as noted above nothing was recovered by the Police from the place of incident. Hence, conviction of the appellant for the offence under Section 27 of the Arms Act, in my opinion, cannot be sustained. 17. Mr. Lakhani, learned senior advocate under instructions of the appellant, who is present in person in the Court, submits that the appellant has already deposited a sum of Rs. 25,000/- in the trial Court as fine for the offence under Section 27 of the Arms Act. He submits that the appellant, therefore, is entitled to refund of the said amount. However, the said amount instead of refunding to the appellant may be transmitted to the City Civil Court Legal Aid Services Committee for the noble purpose of utilizing it to extend the legal aid to the needy and poor people of the society. The gesture shown by the appellant deserves commendation. 18. However, the said amount instead of refunding to the appellant may be transmitted to the City Civil Court Legal Aid Services Committee for the noble purpose of utilizing it to extend the legal aid to the needy and poor people of the society. The gesture shown by the appellant deserves commendation. 18. The incident giving rise to these two appeals had happened in the year 1999. It is not brought to the notice of the Court that thereafter in the interregnum period the appellants have conducted themselves in any manner prejudicial to law and order or that they have come into conflict with the police. The parties have settled their dispute and now the relations between them are cordial. I am, therefore, of the view that in both the appeals ends of justice meet if the substantive sentence imposed on the appellants may be reduced to already undergone while maintaining the sentence of fine. 19. In view of the above and in view of the settlement between the parties, I am, of the view that the substantive sentence imposed on the appellants of both the Criminal Appeal is required to be reduced to already undergone while maintaining the sentence of fine. 20. For the foregoing reasons, the appeals succeed in part. 21. So far as the Criminal Appeal No. 2533 of 2008 is concerned, the conviction of the appellant for the offence under Section 27 of the Arms Act is set aside and the substantive sentence for rest of the offences is reduced to already undergone while maintaining the punishment of fine. The amount of fine of Rs. 25,000/- deposited by the appellant for the offence under Section 27 of Arms Act is ordered to be transmitted to the City Civil Court Legal Aid Services Committee, Ahmedabad. 22. So far as the Criminal Appeal No. 2551 of 2008 is concerned, while upholding the impugned judgment and order on sentence dated 22.09.2008 passed by the learned Additional City Sessions Judge, Court No. 4, Ahmedabad in Sessions Case No. 143 of 2005 the substantive sentence of imprisonment is reduced to already undergone without disturbing the punishment of fine. 23. The accused appellants are on bail and hence, the bail bonds stand cancelled and surety, if any, stands discharged. 24. Record and Proceedings, be transmitted to the trial Court forthwith.