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Gujarat High Court · body

2019 DIGILAW 416 (GUJ)

VASANTBHAI VAJANBHAI GAMIT v. STATE OF GUJARAT

2019-04-15

V.P.PATEL

body2019
JUDGMENT : 1. This Criminal Revision Application is filed by the Applicant – Original Accused) under Section 397 read with Section 401 of the Code of Criminal Procedure, 1973 (for short “Cr.P.C.”) being aggrieved and dissatisfied with the judgment and order dated 05.09.2018 passed by the learned Sessions Judge, Surat in Criminal Appeal No. 94 of 2014 confirming the order dated 16.08.2014 passed by the learned Judicial Magistrate First Class, Mangrol in Criminal Case No. 964 of 2005. 2. The Applicant (Original Accused) was convicted for the offence punishable under Sections 324 of the Indian Penal Code and sentenced to undergo rigorous imprisonment of 2 year and pay fine of Rs.1000/- in default to further undergo 1 month simple imprisonment. Applicant was acquitted from the charges levelled against him under Section 323 and 504 of the Indian Penal Code and Section 135 of the Bombay Police Act. 3. Heard learned Advocate Ms. Samta R. Godiwala for Applicants and learned APP Mr. K.L.Pandya for the Respondent – State of Gujarat. 4. On 28.3.2019 this Court has passed the order as regards to report under Probation Offenders Act. The relevant portion of the order is as under; “4. It is submitted by the learned advocate Ms. Godiwala that she is not insisting for the reasoned order against the conviction, she is concerned with the sentence only and she pressed for reduction of sentence. 5. Considering the facts and circumstances of the case, call for the report of the Probation Officer from Surat under the probation of Section 4 of the Probation of Offenders Act, 1958. Concerned probation Officer of the Surat District has to report this Court on or before 8th April, 2019. Matter be listed on 9th April 2019.” 5. Learned Advocate for the Applicant / Accused submitted that she is not requesting for any reasoned order as regards the merit of the case. She has confined her arguments as regards to the sentence only. It is argued that the offence is not the grave offence. That if the benefit of probation under the Probation of Offenders Act is granted, the Applicant / Accused person will abide by the conditions imposed by this Court. 6. The Principal District Judge, Surat vide his letter Cri.O. N. No.5236/2019 dated 10.04.2019 report of the Chief Probation Officer, Probation Offenders Act, Surat dated 09.04.2019 for Applicant (Original Accused) – Vasanbhai Vajanbhai Gamit. 6. The Principal District Judge, Surat vide his letter Cri.O. N. No.5236/2019 dated 10.04.2019 report of the Chief Probation Officer, Probation Offenders Act, Surat dated 09.04.2019 for Applicant (Original Accused) – Vasanbhai Vajanbhai Gamit. Learned APP has requested to take the reports on record. Permission is granted. Both the reports are taken on record. 7. Learned APP has fairly submitted that as the learned Advocate has not pressed the appeal on merits, the aspect of benefit of the Probation of Offenders Act may be granted to the Applicants / Accused. 8. This court has perused the Probation Officers report, submitted by Shri L.B.Patel, Chief Probation Officer for Applicant. It is stated that the Applicant Vajanbhai Gamit has studied up to 4th standard, his father had been expired. His mother is aged. He has two daughters and one son. The financial condition is very poor. He is the only bread winner in the family. The liability of the whole family is on him. He has good relations with the other relatives. He is cooperative. He has harmonious relations with the village people. No other crime register in the Mangrol Police Station except the present one i.e. I-CR No. 37/2005 for the offences punishable under Sections 323, 324, 504 of IPC and Section 135 of the Bombay Police Act. He is a law abiding citizen and he has no criminal history. 9. After mentioning the above facts in the report, the Chief Probation Officer has considered that the Applicants / Accused are aged and have not indulged in any illegal activity in the past, they regret for the incident which took place in the past. The Chief Probation Officer has opined that the Hon'ble Court can consider the case of the Applicants / Accused for grant of benefit of probation under Section 4 (1) of the Probation of Offenders Act. 10. This court has considered Section 11 of the Probation of Offenders Act 1958. As per Section 11(1) of the Act, the High Court or any other court is empowered to try and sentence the offender to imprisonment and pass the order under the Act when the case comes before the High Court on Appeal or in revision. 11. As per Section 4 of the Act, if the person is found guilty of having committed an offence not punishable with death or imprisonment for life, then the Probation can be granted. 12. 11. As per Section 4 of the Act, if the person is found guilty of having committed an offence not punishable with death or imprisonment for life, then the Probation can be granted. 12. In the present case, the Applicants Accused are sentenced for the offence under Sections 324 of the IPC. Therefore Section 4 of the Act is applicable. 13. This court has considered the character of the offenders, nature of offence, the report of the Probation Officer, circumstances of the case and find that this is a fit case to exercise jurisdiction under Section 11 of the Act to grant probation to the Applicants / Accused Persons. 14. Having heard learned Advocate for the Applicants / Accused as well as learned APP for the Respondent – State, this Court has to decide as to whether the benefit under the Probation of Offenders Act can be extended or not as the learned Advocate for the Applicants / Accused has not pressed the Criminal Revision Application on merits and particularly agrees with the findings and the conclusions arrived at. At the same time, considering the material evidence on record and also the submissions that the Applicants / Accused are law abiding citizens and also having a very poor financial conditions and this is their first case, the benefit under the Probation of Offenders Act is required to be extended in light of the object of the said Act. 15. Therefore, the Court is of the opinion that the benefit under the provisions of the Probation of Offenders Act is required to be granted to the present Applicants / Accused while confirming the order of conviction. 16. In the result, the judgment and order dated 05.09.2018 passed by the learned Sessions Judge, Surat in Criminal Appeal No. 94 of 2014 confirming the order dated 16.08.2014 passed by the learned Judicial Magistrate First Class, Mangrol in Criminal Case No. 964 of 2005 recording the conviction of the Applicants / Accused for the offence under Sections 324 of the IPC is maintained. 17. However, while maintaining the conviction for the offence, the benefit of probation is required to be given under the Probation of Offenders Act. Therefore, the substantive sentence shall remain under suspension for a period of two years. 17. However, while maintaining the conviction for the offence, the benefit of probation is required to be given under the Probation of Offenders Act. Therefore, the substantive sentence shall remain under suspension for a period of two years. The Applicant / Accused is directed to execute a bond of good behaviour of Rs.15,000/- (Rupees Fifteen Thousand only) for two years with a surety of the like amount before the trial court within a period of fifteen days from the date of receipt of the writ of this judgment. It is also ordered that in case of breach of condition of the bond of good behaviour, the trial court shall issue bailable warrant against the Applicants / Accused for implementation and execution of sentence of remaining period. 18. As per the deposition of the Complainant – PW-3 - Fatehsinh Chhaganbhai at Exh.10 read with the deposition of Hansaben Ramsingbhai, the Complainant has received serious injuries on head due to knife blows. 19. The Complainant has suffered injury due to the act of Applicants – Accused. Therefore, he are entitled for compensation from the Applicant / Accused. 20. The Applicant Accused Persons shall pay the amount of compensation to the Complainant and the injured witnesses as under: Rs. 20,000/- to PW-3 - Complainant - Fatehsinh Chhaganbhai 21. It is expedient to release the Applicant / Accused on probation of good conduct for a period of two years from today. Their sentence of imprisonment shall remain suspended during this period. They are released on bail and shall continue to be so provided they execute a bond of Rs.15,000/- (Rupees Fifteen thousand) each to the satisfaction of the trial court within two weeks from today with surety of the like amount to appear and receive sentence when called upon during the said period of two years. In the meantime, the Applicants / Accused must keep peace and be of good behaviour. Sentence of imprisonment shall stand remitted if they do so. The Appeal is accordingly disposed of in the manner indicated above. 22. Copy of the judgment be sent to the Probation Officer, Surat. He will submit the report to the trial court on completion of every one year. Considering the report submitted by the Probation Officer, if found adverse against the present Applicants / Accused, the Trial Court shall implement and execute the impugned order without further reference to this court. 23. Copy of the judgment be sent to the Probation Officer, Surat. He will submit the report to the trial court on completion of every one year. Considering the report submitted by the Probation Officer, if found adverse against the present Applicants / Accused, the Trial Court shall implement and execute the impugned order without further reference to this court. 23. In view of disposal of main petition, Criminal Misc. Application does not survive and disposed of accordingly. Rule is made absolute to the aforesaid extent.