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2019 DIGILAW 458 (GUJ)

Velabhai Devshibhai Koli v. State of Gujarat

2019-04-24

A.G.URAIZEE

body2019
ORDER : 1. Through this office note, it has been pointed out that inadvertently, in para no. 13 of order dated 08.04.2019, the date of the impugned judgment and order is mentioned as 30.11.2004' instead of 06.08.2002'. 2. Accordingly, the same is rectified. Corrected para No. 13 of order dated 08.04.2019 shall be read as under: “13. For the foregoing reasons, the appeal succeeds in part. The judgment and order dated 06.08.2002 of the learned Additional Sessions Judge, Rajkot in Sessions Case No. 350 of 1993 is modified. While maintaining the conviction, the sentence imposed upon appellant Nos.1-Velabhai Devshibhai Koli and appellant No.3-Amrutben Velabhai Koli for the offence punishable under section 324 of IPC is hereby modified to the sentence already undergone. The fine imposed by the learned Trial Judge is raised to Rs. 2,500/-. The appellants are directed to deposit the balance amount of fine in the Trial Court within one month from today.” Note stands disposed of accordingly. JUDGMENT : 1. Appellant No.2 is reported to have expired during the pendency of the appeal. Hence, present appeal qua appellant No.2-Jilubhai Koli stands abated. 2. The appellants have, in this appeal, under section 374 of the Code of Criminal Procedure, 1973 have assailed their conviction recorded by the learned Additional Sessions Judge, Rajkot vide judgment and order dated 06.08.2002 rendered in Sessions Case No. 350 of 1993 whereunder the appellant Nos. 1 and 3 came to be convicted for offence punishable under section 324 of IPC and sentenced to suffer rigorous imprisonment for one year and to pay fine of Rs. 500/-, in default, simple imprisonment for one month. 3. The prosecution case against the appellants as could be gathered from the impugned judgment and connected material is that the field of the complainant and the appellants are situated side by side. On 14.02.1993, the defecto complainant was working in his filed along with his son Bhagwanji in the morning hours. At that time, son of his younger brother-Velabhai came to the field all of a sudden and gave kick blows in the stomach of Bhagwanji, the son of the complainant. Hasuben, daughter of the complainant, informed the complainant that the deceased appellant No.2 has given blow to Bhagwanji by means of spear. She also informed that while the spear was being removed from the stomach of Bhagwanji, Velabhai Koli (appellant No.1) gave blow on the head by pipe. Hasuben, daughter of the complainant, informed the complainant that the deceased appellant No.2 has given blow to Bhagwanji by means of spear. She also informed that while the spear was being removed from the stomach of Bhagwanji, Velabhai Koli (appellant No.1) gave blow on the head by pipe. As a result, Bhagwanji fell down and his intestine came out. In this scuffle, Amrutben, appellant No.3, wife of appellant No.1 and, Koli Raja Kana etc. assaulted complainant and other witnesses. As a result, Bachiben-wife of the complainant and Hasu and Hanu-daughters of the complainant also suffered injuries. The cause of the incident was that the complainant was demanding Rs. 300/- from his brother-appellant No.1 and on that account frequently, there was quarrel between them. The complainant gave an FIR in respect of this incident in the Rajkot Taluka Police whereas it was registered as C.R.No. 62 of 1993. 4. Upon conclusion of investigation, the charge-sheet was filed against them in the Court of learned Fifth Extra Assistant Judge, Rajkot. 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. 5. The Sessions Court framed charges against the accused vide Exhibit-1. 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 evidences to prove the guilt of the accused. 6. Upon conclusion of the trial, 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 accused, convicted the appellants-accused by the impugned judgment and order. 7. I have heard Mr. Keval Barot for the appellants and Mr. L.R.Poojari, learned APP and have also perused the record of Sessions Case No. 350 of 1993. 8. The trial Court, after considering the evidence on record and arguments of learned APP and learned advocate for the accused, convicted the appellants-accused by the impugned judgment and order. 7. I have heard Mr. Keval Barot for the appellants and Mr. L.R.Poojari, learned APP and have also perused the record of Sessions Case No. 350 of 1993. 8. At the outset, learned advocate for the appellants submitted that since the main accused, i.e. appellant No.2, who was convicted for offence punishable under section 307 of IPC, has expired during the pendency of the appeal and that since the remaining appellant Nos.1 and 3 are convicted for offence punishable under section 324 of IPC and are directed to suffer one year of imprisonment out of which, they have already undergone more than half sentence, they do not propose to challenge their conviction on merits. He further submitted that appellant No.1 is about 83 years of age while appellant no.3 is also now at an advanced age. According to his submission, the complainant and the appellants are family members and the incident had taken place owing to the monetary dispute. As more than 27 years have passed since the incident, the sentence imposed by the Trial Court may be modified to one undergone and the fine amount may be raised appropriately. 9. Mr. L R Poojari learned APP has supported the impugned judgment. He submitted that the deceased appellant No.2 had caused injury in the stomach of deceased by spear. The intestine of the deceased had come out and ultimately, he succumbed to the injuries. According to his submission, looking to the nature of injuries and the role played by the surviving appellants in facilitating the commission of crime by deceased appellant No.2, no leniency may be shown to the surviving appellants. He submitted that there is no merit in the appeal and therefore it may be dismissed. 10. I have given my thoughtful consideration to the rival submissions 11. It is an undisputed fact as it emerges from the prosecution case that the complainant and the appellants are family members. It also undisputedly emerges from the evidence that the incident had occurred because of monetary dispute between the defecto complainant and appellant No.1. 10. I have given my thoughtful consideration to the rival submissions 11. It is an undisputed fact as it emerges from the prosecution case that the complainant and the appellants are family members. It also undisputedly emerges from the evidence that the incident had occurred because of monetary dispute between the defecto complainant and appellant No.1. It emerges from the evidence of the important witnesses that the only role played by the present appellant Nos.1 and 3 is of giving feast blows to the deceased albeit appellant No.1 also gave blow on the head of the deceased by means of spade but from the medical evidence, it appears that it had not caused any serious injury to the deceased. Moreover, from the evidence of witnesses it emerges that there was no premeditation for commission of the crime and therefore, in my view, the learned Trial Judge has rightly convicted the surviving appellant and deceased appellant No.2, according to the role played by them in the incident. 12. The incident had happened in the year 1993. Twenty Five to Twenty Six years have elapsed since then. There is nothing on the record to indicate that after the unfortunate incident, any further incident had happened between the parties. Appellant No.1 Velabhai Koli is reported to be of very advanced age of 83 as also the appellant No.3 Amrutben Koli is also fairly at an advanced age. It further appears from the record that after the incident, all the accused persons were arrested on 16.02.1993 and came to be released pending trial by this Court on 02.07.1993. Thereafter, upon their conviction, they were released on bail pending appeal on 27.09.2002. It is thus very clear that they have undergone more than half of the sentence imposed on them. Under the circumstances, I am of the view that while maintaining the conviction inflicted on the appellants for the offence punishable under section 324 of IPC, ends of justice would meet if the conviction is modified to one already undergone and the fine is enhanced appropriately. 13. For the foregoing reasons, the appeal succeeds in part. The judgement and order dated 30.11.2004 of the learned Additional Sessions Judge, Rajkot in Sessions Case No. 350 of 1993 is modified. 13. For the foregoing reasons, the appeal succeeds in part. The judgement and order dated 30.11.2004 of the learned Additional Sessions Judge, Rajkot in Sessions Case No. 350 of 1993 is modified. While maintaining the conviction, the sentence imposed upon appellant Nos.1-Velabhai Devshibhai Koli and appellant No.3-Amrutben Velabhai Koli for the offence punishable under section 324 of IPC is hereby modified to the sentence already undergone. The fine imposed by the learned Trial Judge is raised to Rs. 2,500/-. The appellants are directed to deposit the balance amount of fine in the Trial Court within one month from today. 14. Since the accused persons are on bail, their bail bonds stand cancelled and surety, if any stands discharged. R & P to be transmitted to the Trial Court.