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2019 DIGILAW 203 (GUJ)

Koli Jayantibhai Shivabhai v. State Of Gujarat

2019-03-07

A.G.URAIZEE

body2019
JUDGMENT : A.G. URAIZEE, J. 1. The appellants have assailed the judgment and order of conviction dated 04.11.2000 passed by the learned Additional Sessions Judge, Surendranagar in Sessions Case No.130 of 1991, whereunder, they came to be convicted for the offence punishable under Sections 323 and 326 read with Section 114 of Indian Penal Code. 2. The appellants-original accused have preferred this appeal under Section 374 of the Code of Criminal Procedure, 1973 (“the Code” for short) to assail the judgment and order passed by the learned Additional Sessions Judge, Surendranagar in Sessions Case No.130 of 1991 dated 04.11.2000, whereby and whereunder the learned Sessions Judge has convicted the appellants under Sections 323 and 326 read with Section 114 of Indian Penal Code and inflicted sentence as under: Nature of offence Sentence 326 5 years R.I, Fine Rs.3000/-, in default 6 months S.I. 323 5 years R.I, Fine Rs.3000/-, in default 6 months R.I. All the sentences shall run concurrently. 3. On conclusion of the investigation on the basis of the material collected against the respondent accused, as the investigating officer found a prima facie case against the respondents-accused, charge sheet came to be filed before the competent Court. The same was read over and explained to the accused-respondent who pleaded not guilty and claimed to be tried. The prosecution, therefore, adduced documentary and ocular evidence to prove the guilt of the accused persons. 4. Upon conclusion of the trial the statement under Section 313 of the Code of the accused-respondent came to be recorded. The trial Court, after considering the evidence on record, convicted the accused of the charges by the aforesaid judgment and order. 5. I have heard Mr. N.V. Solanki, learned advocate for the appellants and Mr. L.R. Pujari, learned Additional Public Prosecutor for the respondent. 6. Following order was passed on 31st January, 2019:- “Learned advocate Mr. N.V. Solanki for the appellants states that the incident in question occurred at spurs of the moment. He states that the complainant and the accused belong to same village. He also states that they are farmers and are now residing happily. According to him, they have settled the matter outside. In view of above submission, learned APP shall call the complainant and injured witnesses to remain present through the concerned police station. Learned APP shall also communicate the concerned police station. He also states that they are farmers and are now residing happily. According to him, they have settled the matter outside. In view of above submission, learned APP shall call the complainant and injured witnesses to remain present through the concerned police station. Learned APP shall also communicate the concerned police station. A copy of this order be supplied to learned APP. List on 18.02.2019.” 7. The defacto-complainant, Dhirubhai Devjibhai and Narubhai Devjibhai as well as the appellants-original accused persons are present in person in this Court in pursuance of the order dated 31st January, 2019. 8. Mr. Solanki, learned advocate for the appellants submits that the defacto complainant and the appellants are residing in the same locality and now relations between them are cordial. He, therefore, urged that looking to the cordial relations prevailing between the parties, this Court may show leniency with regards to sentence or any other appropriate order acquitting the appellants. 9. The defacto-complainant, Dhirubhai Devejibhai who is present in person in the Court confirms that relations between the parties are cordial and no untoward incident has occurred between them since the unfortunate incident which is the subject matter of the appeal. He has produced an affidavit wherein also he stated that after the occurrence of incident dated 30.04.1991 no untoward incident had happened and stated in the affidavit that appropriate order may be passed. The affidavit is taken on record. 10. Mr. Pujari, learned Additional Public Prosecutor submitted that the learned trial Judge has already shown leniency in favour of the appellants inasmuch as instead of convicting under Section 302 of Indian Penal Code, the appellants are convicted under lessor offence of Section 326. In his submission, no further leniency can be shown and the appellants may not be acquitted on the basis of affidavit filed by the defacto-complainant as it would send wrong signals in the society. 11. The affidavit of the defacto-complainant reads as under:- “In this matter, We (1) Dhirubhai Devjibhai and (2) Narubhai Devjibhai both aged adult, occupation-Agriculture, residing at Village Nadala, Taluka Sayla, District Surendranagar do hereby solemnly state on oath before this Honourable Court and verify that: 1. I Shri Dhirubhai Devjibhai am the original complainant of Sessions Case No.130 of 1991 and Narubhai Devjibhai happens to be my real brother. 2. Today, we have appeared in pursuance with the order earlier passed by this Honourable Court. I Shri Dhirubhai Devjibhai am the original complainant of Sessions Case No.130 of 1991 and Narubhai Devjibhai happens to be my real brother. 2. Today, we have appeared in pursuance with the order earlier passed by this Honourable Court. We humbly beg to State Your Lordships that we and the present appellants/accused are neighbours since long and are presently living at village Nadala as such neighbours. After the occurrence of alleged incident dated 30.04.1991, no untoward incident of any kind has happened thereafter amongst us. And we and our family members of both the families are also residing peacefully and happily since then till date. There is no any kind of bitterness, enmity of any dispute or other discordance at all between both the families. 3. In such prevailing peaceful situation, we and our family members have decided amongst us to forget and forgive everything that transpired earlier between both the families and accordingly have settled and squared up dispute or differences if any between both the parties. We thus, do not have any ill-will of any kind against the present appellants. 4. In view of this reality and present prevailing peaceful condition between both the parties, we do not have any objection of any kind if either any leniency with regard to sentence or any other appropriate order acquitting the present appellants from the charges leveled against them be passed by the Honourable Court in light of the statements made by us in this affidavit and filed before the Honourable Court accordingly. 5. The present affidavit has been filed by us quite voluntarily and of our own accord without therebing any pressure or other influence from any corner or any person whatsoever and after taking consent of all our family members. Whatever described in this affidavit is absolutely correct and we believe the same to be true. It is therefore, binding to both of us in every respect.” 12. Having heard the learned advocates for the appellants- accused persons and original complainant as well as learned APP for the respondent-State and having perused the affidavit tendered by the original complainant, I am of the opinion that the incident happened because of trivial dispute between the parties and since 2004, the parties have settled their dispute and their relation are cordial and they are living in peace in the same village. I am, therefore, of the view that while maintaining the conviction the sentence imposed on the appellants is required to be suitably modified. 13. For the forgoing reasons, the present appeal succeeds in part. While upholding the impugned judgment and order of conviction passed by the learned Additional Sessions Judge, Surendranagar passed in Sessions Case No.130 of 1991 dated 04.11.2000, modified whereby, while maintaining the fine the sentence already undergone by each of the accused persons is ordered to be treated as sufficient sentence. None of the accused person is required to undergo further sentence in respect of the offence in question. 14. Record and Proceedings is ordered to be remitted to the trial Court forthwith.