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2020 DIGILAW 120 (GUJ)

Kodarbhai Rupaji Varma v. State Of Gujarat

2020-01-22

V.P.PATEL

body2020
JUDGMENT : V.P. Patel, J. 1. The appellants original accused have filed this appeal under Section 374(2) of the Code of Criminal Procedure, 1973 (hereinafter referred as “the Code”), being aggrieved and dissatisfied with the order dated 31.05.2005 passed by the learned Additional Sessions Judge, Court No. 7, Ahmedabad (hereinafter referred as “the learned Trial Court”) in Sessions Case No. 286 of 2003. 2. Heard learned Advocate Mr. Pradip J. Patel, for the for the appellants, learned APP Ms. Jirga Jhaveri for respondent – State. Order under Challenge: 3. Learned Additional Sessions Judge, Court No. 7, Ahmedabad passed an order dated 31.05.2005, convicting the appellants for the offences under Section 323 of the Indian Penal Code (for brevity “IPC”) and were directed to undergo rigorous imprisonment for one year with fine of Rs.2000/- each. In default of payment of fine, the appellants were directed to undergo simple imprisonment for three months. The appellants were also convicted for the offences punishable under Section 294(b) of the IPC and were directed to undergo rigorous imprisonment for one month with fine of Rs.500/- each. In default of payment of fine, the appellants were directed to undergo simple imprisonment for one month. The appellants were also convicted for offence punishable under Section 506 of IPC and were directed to undergo rigorous imprisonment for six month with fine of Rs.1000/- each and in default of payment of fine, were directed to undergo simple imprisonment for three month. Appellants are entitled to get set off for the period of detention already undergone during the trial. The sentences shall run consecutively. Arguments of the Appellant: 4. The Mr.Pradip J. Patel, learned Advocate for the appellants has submitted that earlier learned Advocate Mr.Vinodkumar P. Shah was appearing for the appellants, however, as learned advocate for the appellants was not present, the Co-ordinate Bench of this Hon'ble Court had vide order dated 13/08/2019 been pleased to issue bailable warrant against the appellants. The said bailable warrants were returned unexecuted as the appellants were not found at the given address. 5. The learned advocate has further submitted that thereafter vide order dated 20/11/2019, the Coordinate Bench of this Hon'ble Court had been pleased to dismissed the present appeal for default for want non-prosecution with liberty to revive when accused are found. Learned Advocate has further submitted that the appellants has preferred Criminal Misc. 5. The learned advocate has further submitted that thereafter vide order dated 20/11/2019, the Coordinate Bench of this Hon'ble Court had been pleased to dismissed the present appeal for default for want non-prosecution with liberty to revive when accused are found. Learned Advocate has further submitted that the appellants has preferred Criminal Misc. Application No. 1 of 2020 in Criminal Appeal No.297 of 2005 for restoration of the Criminal Appeal. The Coordinate Bench of this Hon'ble Court has vide order dated 08/01/2020 had been pleased to allow the said Criminal Misc. Application and restored the Criminal Appeal to its original file. 6. The learned advocate has further submitted that Appellant No. 1 – Kodarbhai Rupaji Varma has died on 23/11/2014, in support of his submission learned Advocate has produced the death certificate dated 12/12/2014 issued by the Registrar, Birth and Death Registration, Raspur, District: Dungarpur, Rajasthan. Learned advocate has further submitted that since vide order dated 20/11/2019, the criminal appeal was dismissed for default for non-prosecution, the appellant No. 2 – Rambhai Kodrebhai Varma was arrested on 10/12/2019 and sent to judicial custody for undergoing remaining sentence. Since then he is in Jail. 7. The learned advocate for the appellants further submitted that the original complainant and injured were relatives. The accused No.1 was real brother of the original complainant and injured and accused No. 2 was son of his brother. That after conviction as the original complainant and accused were from same family and dispute was minor, dispute was settled long back but, the could not approach this Court at earlier point of time. Learned Advocate has further submitted that son of the original complainant has filed an affidavit-in-reply (Compromise affidavit) dated 16/01/2020 stating about settlement and expressing no objection to allowing the appeal and set aside the charges against the appellants accused. 8. The learned advocate for the appellant has submitted that the Appellant No. 1 – Kodarbhai Rupaji Varma has been died and the appellant No. 2 has undergone sentence for about 4 months and since 10/12/2019, he is in jail. The incident of the year 2000 and about 19 years has been lapsed, matter is amicably settled between the parties, therefore, the present appeal may be allowed in terms of affidavit dated 16/01/2020 affirmed by the son of the original complainant and set the appellant No.2 at liberty. Argument of Prosecution: 9. The incident of the year 2000 and about 19 years has been lapsed, matter is amicably settled between the parties, therefore, the present appeal may be allowed in terms of affidavit dated 16/01/2020 affirmed by the son of the original complainant and set the appellant No.2 at liberty. Argument of Prosecution: 9. Learned APP has submitted that the judgment of the Trial Court is legal, proper and just, therefore, appeal is required to be dismissed. However, considering the fact that the appellant No. 1 has been died and matter is settled between the parties as they are from same family with a view to maintain harmony and peach amongst family, the Hon’ble Court may pass an appropriate orders in the interest of justice. Facts of the Case: 10. Brief facts of the case is that on 06/04/2000 at about 8.30 in the morning the original complainant – deceased Maganbhai Rupabhai Verma was passing nearby the rooms at that time Ramabhai Kodarbhai Verma had dashed his bicycle between legs of the deceased Maganbhai Rupabhai Verma, for which quarrel was taken place and during that accused No.1 - Kodarbhai Rupabhai Verma came and caught hold of the complainant Maganbhai and the accused No. 2 Ramabhai Kodarbhai Verma had willingly caused fist blow on the chest, stomach, face of the complainant Maganbhai. The accused have also used abusive language for the complainant and threatened to kill him. That, because such blows given by the accused, the original complainant died on 10/04/2000 during his treatment at V.S. Hospital. For the incident F.I.R. Being II C.R. No.3007/2000 for the offences punishable under Sections 323, 294(b), 506(2) of IPC was lodged before Karanj Police Station, Ahmedabad. Thereafter as the complainant died, Section 302 of IPC was added. On completion of investigation charge sheet was filed and then the learned Magistrate passed an order of committal to the Sessions. Accordingly, Sessions Case No. 286/2000 was registered and on completion of trial, learned Additional Sessions Judge, Court No.7, Ahmedabad vide judgment dated 31/05/2000 convicted the accused and awarded sentence as mentioned here-in-above. Against which the present appeal. Merits of the Case: 11. Mr. Pradip Patel, learned advocate for the appellants submitted that the appellant No. 1 Kodarbhai Rupaji Varma is expired. Learned advocate for the appellant submitted that in the said note dated 16.01.2020 where in it is stated applicant no.1 viz. Against which the present appeal. Merits of the Case: 11. Mr. Pradip Patel, learned advocate for the appellants submitted that the appellant No. 1 Kodarbhai Rupaji Varma is expired. Learned advocate for the appellant submitted that in the said note dated 16.01.2020 where in it is stated applicant no.1 viz. Kodarbhai Rupaji Varma is died on 23-11-2014 and as the applicant no. 1 family member doesn’t want to pursue further so it is requested that above matter may kindly be placed on board and the abatement order may be passed. Death Certificate of the deceased Mr. Kodar is annexed herewith. 11.1 Perusing the death certificate following facts emerged: Sr. No. Particulars Facts 1 Name of the deceased Kodar Varnoti (Balai) 2 Date of Death 23.11.2014 3 Name of the father of deceased Rupaji 4 Date of issue 12/12/14 5 Date of Registration 26.11.2014 6 Registration Number 46 11.2 It is necessary to quote here Section 394(2) of the Code of Criminal Procedure which reads as under: “(2) Every other appeal under this Chapter (except an appeal from a sentence of fine) shall finally abate on the death of the appellant: Provided that where the appeal is against a conviction and sentence of death or of imprisonment, and the appellant dies during the pendency of the appeal, any of his near relatives may, within thirty days of the death of the appellant, apply to the Appellate Court for leave to continue the appeal; and if leave is granted, the appeal shall not abate.” 11.3 Here in this case, no near relative came forward to apply for continuation of appeal. Hence, the appeal against appellant No. 1 is required to be abated. Accordingly the appeal qua appellant No. 1 is accordingly abated. 12. Learned advocate for the appellant submitted that he confines his argument only for the sentence is concerned. He has no objection if conviction is upheld and sentence is reduced up to the period already undergone by the appellant-accused. 12.1 He submitted Affidavit-in-Reply on behalf of Respondent No. 2, wherein it is stated as under: “2. That after the conviction as we are from the same family and accused no. 1 and injured/deceased were real brother and disputes was minor hence we have already settled the disputes long back but we could not approached this court in earlier point of time. 3. That after the conviction as we are from the same family and accused no. 1 and injured/deceased were real brother and disputes was minor hence we have already settled the disputes long back but we could not approached this court in earlier point of time. 3. That now as the advocate of accused was not remain present the above Appeal came to be dismissed and Appellate no. 2 was sent to the Jail and after knowing this present ori. Complainant that means I personally approached the new advocate to get him out of jail as for long time we have vary good relation and disputes was already settled between the parties. 4. That the original appellant no. 1 has already died on 23-11-2014. 5. I have settled the matter with the present appellant/accused and therefore I don’t want to proceed further in the matter and I have no objection if the Appeal is allowed and charges are quashed and set aside and ori. accused may release from jail” 12.2 The original complainant Mr. Gautambhai Maganbhai Varma was present before the Court. He has identified his signature and stated that the contents of affidavit is true and correct. This Court satisfied about the genuinity of the affidavit. 13. Ms. Jirga Jhaveri, learned APP for the Respondent-State argued that considering the facts and circumstances of the case and the matter is settled between the parties, the Court has discretion for awarding less sentence. In view of this, it is requested that just and appropriate order be passed. She has submitted jail remarks. 13.1 As per the jail remarks submitted by the learned APP following facts emerged: Sr No. Particulars Facts 1 Prisoner’s Name and Age B/36308-Rambhai Kodarbhai Varma, Age 50 years 2 Sessions Case No. 286/2003 3 Sentence 1-Year, 7 montsh Rs. 3500/- 4 Sections 323, 294(b), 506 of IPC 5 Date of arrest 11.01.2000, Karanj Police Station ICR. No. 11 of 2000 6 Set off 00-01-01 (11.01.00 to 10.02.00) 7 Really undergone sentence 00-02-2009 (as on 21.01.2020) 8 Actual time spent in Jail 00-03-10 (3 months and 10 days) 14. 3500/- 4 Sections 323, 294(b), 506 of IPC 5 Date of arrest 11.01.2000, Karanj Police Station ICR. No. 11 of 2000 6 Set off 00-01-01 (11.01.00 to 10.02.00) 7 Really undergone sentence 00-02-2009 (as on 21.01.2020) 8 Actual time spent in Jail 00-03-10 (3 months and 10 days) 14. This Court considered Section 361 of the Code, it is stated that when provided that in any case, the Court could have dealt with the accused person under Section 360 under the provisions of Probation of Offenders Act, 1958, but has not done so and recorded its special reasons in the judgment the for not having done so. In this case, the learned Trail Court has not assigned such reasons for undergone probation to the accused. Now at this stage, when appellant No.2 has undergone already 1 years and 7 months imprisonment, probation is not advisable. 15. The appellant No. 2 has been convicted by the learned Trial Court for the offence punishable under Sections 323, 294(2) and 506 of the IPC. Now considering the facts of the case, this Court has to decide what punishment is adequate. This Court has considered following circumstances for awarding sentences and fine. (a) That the appellant No. 2 was arrested and thereafter released on bail during the trial. (b) During the pendency of appeal the appellant no. 2 was released on bail and he was on bail till the appeal is dismissed for default. (c) As per the jail remarks, he remained in jail for a period of 3 months and 10 days. At present he is in jail after appeal is dismissed for default. (d) The original complainant and present appellants are near relatives. They have settled their disputes amicably. (e) Now appellant and complainant have good and harmonious relations with each other. (f) The incident took place on 06.01.2000, i.e. more than 20 years ago. (g) The punishment prescribed for the offence convicted is imprisonment or fine or both. There is no minimum sentence prescribed under the law for the offence committed. 16. In view of the above discussion, facts and circumstances of the case, I am of the view that the end of justice shall be met with in case of sentence of imprisonment awarded by the learned Trial Court against the appellant be reduced to the period already undergone. Hence following order is passed. 16. In view of the above discussion, facts and circumstances of the case, I am of the view that the end of justice shall be met with in case of sentence of imprisonment awarded by the learned Trial Court against the appellant be reduced to the period already undergone. Hence following order is passed. :FINAL ORDER: (i) For the reasons recorded here-in-above, the present appeal is partly allowed. (ii) The appeal qua appellant No. 1 Kodarbhai Rupaji Varma is abated. (iii) The conviction under Sections 323, 294(b) and 506 of IPC vide judgment dated 31/05/2005 passed by the learned Additional Sessions Judge, Court No. 7, Ahmedabad in Sessions Case No. 286 of 2003 is confirmed. However, the sentence for the offence imposed by the learned Additional Sessions Judge, Court No. 7, Ahmedabad is hereby modified to the extent that the appellant No. 2 Rambhai Kodarbhai Varma is sentenced for the period already undergone and the fine of Rs. 3500/-. The fine if deposited, the same may be adjusted with the fine imposed. (iv) The accused be set at liberty forthwith if he is not required in any other crime. (v) The Registry is directed to send copy of this judgment to the concerned Court for certification under Section 388 of the Code. (vi) Direct service is permitted.