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2020 DIGILAW 56 (GUJ)

Rajendrakumar Mohanlal Patel v. State of Gujarat

2020-01-10

V.P.PATEL

body2020
JUDGMENT : 1. The original-appellant accused have filed this appeal under Section 374(2) of the CrPC (herein after referred to as 'the Code') being aggrieved and dissatisfied with the judgment and order dated 05.04.2005 passed by the learned Addl. Sessions Judge Fast Track Court Bharuch, Court No.5 (herein after referred to as 'the learned Trial Court') in Sessions Case No. 81/2000. 2. Heard learned advocate Mr. Vijay Patel for the appellant and learned APP Ms. Jirga Jhaveri for the State. The order under challenge 3. Learned Sessions judge has passed the judgment and order dated 05.04.2005 passed by the Trial Court in Sessions Case No. 81/2000. The learned Trial Court has convicted under Section 235(2) of the code, the appellant no. 1-Rajesh Patel, appellant no.2- Bharat Patel and appellant no.3 Dilipbhai Patel and appellant no.4 Kiritbhai Ratilal Patel and appellant no.5 Pareshbhai Bhatt for the offence under Section 143, 147, 148, 149, 435, 436, 506(2), 447, 423, 424 of the IPC read with Section 135 of the Bombay Police Act and sentenced as under. Nos. Offence Sentence In default 1 Under Section 323, 324 read with Section 149 of the IPC. 2 years rigorous imprisonment and fine of Rs.500/- 1 month simple imprisonment 2 Under Section 436 read with Section 149 of the IPC 3 years of rigorous imprisonment and fine of Rs.500/- 1 month simple imprisonment 3 Under Section 435 read with Section 149 of the IPC 3 years of rigorous imprisonment and fine of Rs.500/- 1 month simple imprisonment 4 Under Section 447 read with Section 149 of the IPC 1 month rigorous imprisonment and fine of Rs.100/- 7 days simple imprisonment 5 Under Section 506(2) read with Section 149 of the IPC 6 months rigorous imprisonment and fine of Rs.200/ 1 month simple imprisonment 6 Under Section 143, 147, 148 read with Section 149 of the IPC 6 months rigorous imprisonment and fine of Rs.200/- 1 month simple imprisonment 7 Under Section 135 of the IPC No punishment 3.1 It is further ordered that the accused shall undergo all the sentence concurrently and they are entitle to set of the period of detention, if any, undergone by them during the trial and investigation. Arguments for the appellant accused. 4. Learned advocate for the appellant-accused has submitted that the impugned judgment and order is bad in law. Arguments for the appellant accused. 4. Learned advocate for the appellant-accused has submitted that the impugned judgment and order is bad in law. That the learned trial court has not considered the evidence in true and proper perspective. That the finding of the trial court is contrary to the fact and evidence on record that the trial court has not considered the cross complaint filed by the accused Rajendra Mohanlal Patel. No panch witness has supported the prosecution case. That the injured witness Jadaben has not seen the incident. That the PW-11 Motibhai Parmar has not supported the incident. That Jadaben had hidden herself some story. No witness has stated any thing as regards to the mischief and damage property done by the accused. 4.1 Learned advocate for the appellant has further submitted that he has confined his arguments only for the sentence imposed for the offences punishable under Section 435,436 of the IPC. He further requested to allow the appeal and set aside the decision for the offences punishable under Section 435 and 436 of the IPC. He has further submitted that for the sentences as regards to the other offences, the accused have already undergone such sentences. It is fairly submitted that if court come to a conclusion that if compensation is required to be paid to the complainant, the appellants are ready to give compensation. Arguments of the prosecution 5. Learned APP has argued that the ingredients of the offences punishable under Section 435 and 436 of IPC are established by the cogent evidence. That the trial Court has appreciated the oral as well as the documentary evidence in proper perspective. Learned APP has vehemently submitted that ample evidence is on record to justify the conviction for the offences and sentence and fine imposed by the trial Court to the appellants. Hence, there is noting to interfere in the impugned order and requests to dismiss the appeal. The facts of the case: 6.1 The original complainant Kabhai Nanabhai Parmar has filed FIR at Vedach police station District Bharuch on 18.01.1997 at about 02.35 PM, the same complaint was registered vide CR No. I-03/1997 on 18.01.1997 for the offences punishable under Section 323, 324, 427, 143, 147, 148, 149, 394, 436, 506(2) of IPC and under Section 135 of Bombay Police Act. After the investigation is completed the investigating officer has filed the charge sheet before the learned judicial Magistrate Jambusar and the same is registered as Criminal Case No. 120/1998. Learned Judicial Magistrate First Class has committed the case under Section 209 of the Code to the Sessions Court Bharuch the said case is registered as Sessions Case No. 81/2000. 6.2 As per the prosecution case it is stated that on 18.01.1997 the complainant-Kabhai was present at his home at about 12 noon, the accused came with hockey and stick and threatened to vacate his farm otherwise they will kill him. The accused no.1 Rajubhjai has inflicted blow of hockey and stick to the complainant on his head. Another accused Lala Mohanbhai given a stick blow on his right leg. It is further stated that accused-Mohan Vishwanath is the brother of the complainant has beaten by stick to Somabhai. Another accused Sanabhai has inflicted blow of iron rod on the left hand and on the head. The injured witness who is the wife of the complainant has been beaten by lathi and hockey blow by the accused. Ratibhai Narmada Shankar the son of the complainant came with knife and inflicted blow to Somabhai on left hand. People who were working in the nearby farm came for rescue thereafter, the accused flee away. It is further stated that after the complainant and the injured witness went away, the house of the complainant was set on fire and caused damage to the household properties. 6.3 Learned trial Court has framed the charge vide Exh.4 on 24.02.2005 against 10 accused including the present appellants. The prosecution has examined 24 witnesses and produced 16 documentary evidence and further statement under Section 313 of the accused are recorded they have denied the case of the prosecution. After hearing the learned APP and learned advocate for the defence the trial court has passed impugned judgment and order dated 05.04.2005. Merits of the case. (A) For the offence punishable under Section 435 and 436 of the IPC. 7. Learned advocate for the appellant has confined his arguments only for the conviction for offences punishable under Section 435 and 436 of IPC. Merits of the case. (A) For the offence punishable under Section 435 and 436 of the IPC. 7. Learned advocate for the appellant has confined his arguments only for the conviction for offences punishable under Section 435 and 436 of IPC. On perusing the deposition of PW-10 Jadiben Kabhai Parmar at Ex 49 she has stated in para 4 of her deposition that after the incident she had admitted to hospital for treatment and she came back to her home and seen that accused have committed mischief by setting fire and damaged the property of their house. On perusing the cross-examination she has stated that she has not seen who has set fire on her house. 8. Another witness PW-13 Kabhai Nanabhai Parmar at Exh.52 on perusing the deposition, it is stated in para.2 that at the time of incident he and his brother Somabhai were flee away and the fact as regards to the fire on house is conveyed to him by his wife and he has no personal knowledge. It means the injured witness have no knowledge about setting the fire to their house and damage occurred to their property. 9. The prosecution has examined PW-15 Kabhai Channabhai is examined at Exh.55, who is the eye-witness. Perusing the deposition of this witness he has not supported to the prosecution case. This witness is declared as hostile by the prosecution. Learned APP was permitted to cross-examine this witness and upon perusal of the cross-examination this witness has nothing stated against the present appellant. 10. The prosecution has examined PW-19 Somabhai Nanabhai Parmar at Exh. 69. On perusing the deposition of this witness he has narrated the incident as regards to the quarrel between the parties and the altercations. He has not stated any thing as regards to the fact that the accused has set fire to the house of the complainant. This witness is the real brother of the complainant. 11. The prosecution has produced panchnama of scene of offence at Exh. 39 wherein it is stated that the damage of Rs.2,000/- was occurred, the prosecution has examined PW-6 Kanubhai at Exh. 38 as panch witness of panchnama of the scene of offence and he has not supported the case of the prosecution. 11. The prosecution has produced panchnama of scene of offence at Exh. 39 wherein it is stated that the damage of Rs.2,000/- was occurred, the prosecution has examined PW-6 Kanubhai at Exh. 38 as panch witness of panchnama of the scene of offence and he has not supported the case of the prosecution. The prosecution has examine PW-7 Ganpatbhai Dayabhai at Exh.40 as panch witness and he has also not supported the case of prosecution and has been declared hostile. Upon perusing the cross-examination nothing is revealed against the present appellant. The prosecution has examined PW-23 Abhaysingh Sirubhai Jadeja at Exh.84, this witness is PSI investigating officer who has prepared panchnama of the scene of offence. He has nothing stated about contents of panchnama. 12. Considering the reasons stated in the memo of the appeal and the arguments advanced by the learned advocate for the appellant and learned APP, oral as well as documentary evidence discussed herein above, this Court is of the view that the prosecution has failed to establish that the appellant-accused have committed mischief by fire intending to cause or knowing it t be likely that they will thereby cause, damage to any property to the amount of one thousand rupees or more. It is also not proved that the appellant have committed mischief by fire intending to cause, or knowing it to be likely that they will there by cause, the destruction of building which is ordinarily used as a place of human dwelling or as a place for the custody of property. The prosecution has not proved the ingredients of offence under Section 435 and 436 of the IPC. Therefore, the conviction held by the trial Court for the offence punishable under Section 435 and 436 is required to be quashed and set aside. (B) For the offence charged other than Section 435 and 436 of the IPC. 13. As the learned advocate for the appellant has confined the arguments only for conviction of the offence under Section 435,436 of IPC, this Court has discussed and appreciate the evidence for the purpose only for the offence under Section 435 and 436 of IPC. Learned advocate for the appellant has fairly submitted that he has nothing to say as regards to the conviction for offences other than section 435 and 436 of IPC, held by the learned trial Court. 14. Learned advocate for the appellant has fairly submitted that he has nothing to say as regards to the conviction for offences other than section 435 and 436 of IPC, held by the learned trial Court. 14. This Court has perused the oral as well as documentary evidence produced on record by the prosecution. Learned trial court has appreciated the evidence of the injured witness, eye-witness, medical witness etc. The trial Court has concluded that the prosecution has established their case for the offences punishable under Sections 143, 147, 148, 149, 506(2), 447, 323, 324 of the IPC and Section 35 of the BP Act. I have gone through the reasons stated by the trial Court for its conclusion. I find that the reasons given by the trial Court are adequate, legal and logical. Hence I held that the prosecution has made out the conviction case for the offences under Sections 143, 147, 148, 149, 323, 324, 447, 506 (2) of the IPC and under Section 135 of BP Act. (C) for the offence under Sections 427 15. Considering the oral as well as the documentary evidence on record, this Court is of the opinion that the prosecution has established that the appellant have committed mischief and thereby causes damages of more than Rs.50/-. Thus, appellant have committed the offence under Section 427 of the IPC. 16. The trial Court has not framed charge for the offences punishable under Section 427 of the IPC. As per section 222 of the CrPC, if a person is charged with the offence consisting of several particular and the combination of some only of which constitutes a complete minor offence and such combination is proved, the accused can be convicted for the minor offence though he was not charged with it. Thus the appellants are required to be convicted for the offence punishable under Section 427 of IPC. Awarding of sentence 17. In view of the above, this Court is of the view that the appeal is required to be partly allowed and accordingly partly allowed to the extent that the prosecution has established the case against the appellants under Section 143, 147, 148, 149, 427, 506(2), 427, 447, 323 and 324 of the IPC and under Section 135 of the Bombay Police Act. 18. 18. It is submitted by learned advocate for the appellants at bar that the possession of the disputed land for which the incident took place has been handed over to the third party by amicable settlement between the complainant and the present appellants. Further it is submitted at bar that the appellants are in harmonious relationship with the complainants. The appellants are agreed to pay the compensation to the complainant and the injured witness as deems fit by this Court. Learned advocate for the appellant has further requested that the appellant/accused may be sentence for the period already undergone by them. 19. Learned APP for the State has submitted that looking to the development of good relation between the parties and the facts and circumstances of the case, this Court has wide discretion to modify the sentence, it is required to pass just and legal order may be passed. 20. The law provides the punishments for the offences in which the appellants are convicted as under: Nos. Offences Punishment 1 u/s 143 of IPC 6 months imprisonment or fine or both 2 u/s 147 of IPC 2 years imprisonment or fine or both 3 u/s 148 of IPC 3 years imprisonment or fine or both 4 u/s 149 of IPC The same as for the offence 5 u/s 323 of IPC 1 year imprisonment or fine of Rs. 1000/- or both 6 u/s 324 of IPC 3 years imprisonment or fine or both 7 u/s 427 of IPC 2 years imprisonment or fine or both 8 u/s 477 of IPC 3 month imprisonment or fine of Rs.5000/- or both 9 u/s 506(2) of IPC 7 years imprisonment or fine or both 10 u/s 135 of BP Act 3 years imprisonment or fine of Rs.500/- or both Looking to the above punishment for all the offences for which conviction is held, the punishment is provided for imprisonment or fine or both. 21. Now, what will be the adequate punishment? This Court has to consider circumstances for awarding sentences and fine, which are as under: (a) that the accused have been arrested and remained in custody for 15 days. (b) The incident took place on 18.01.1997, approximately 22 years has been passed. (c) Appellant/accused are on bail during the trial and thereafter they were taken into custody at the time of concluding the trial. (b) The incident took place on 18.01.1997, approximately 22 years has been passed. (c) Appellant/accused are on bail during the trial and thereafter they were taken into custody at the time of concluding the trial. Again the bail was granted to appellant on admitting appeal. (d) The appellant and complainant/injured have settled their dispute amicably. (e) That appellant and complainant and the injured have good and harmonious relation with each other. (f) That appellants are ready to pay compensation. (g) It will be not justified to send the appellant to jail after 22 years, would be travensty of justice. (h) There is no minimum punishment prescribed for the offences in which conviction is held. 22. In view of the above discussion, fact and circumstances of the case, I am of the view that end of justice shall be met in case of sentence of imprisonment awarded by the trial court against the appellant accused be reduced to the period already undergone and increase fine substantially. Hence, following order is passed. FINAL ORDER (a) Accordingly, the appeal is allowed in part and the sentence of imprisonment awarded by the trial Court for all the offences against the appellants is reduced collectively to the period already undergone by appellants and all appellant shall pay fine individually as under: Nos. Offences Fine In default of fine, simple imprisonment of 1 u/s 143&149 of IPC Rs.1000/- 1 month 2 u/s 147&149 of IPC Rs.3000/- 2 months 3 u/s 148&149 of IPC Rs.5000/- 3 months 4 u/s 323&149 of IPC Rs.1000/- 1 month 5 u/s 324&149 of IPC Rs.5000/- 3 months 6 u/s 427&149 of IPC Rs.3000/- 2 months 7 u/s 477&149 of IPC Rs.5000/- 3 months 8 u/s 506(2)&149 of IPC Rs.8500/- 6 Months 9 u/s 135 of BP Act Rs.500/- 15 days (b) if fine is not paid within 60 days from today the trial court, shall proceed for its execution in accordance with law. (c) if fine is paid by the accused, the trial Court shall pay the amount of Rs. 40,000/- to PW-10-Jadaben Parmar and amount of Rs.40,000/- for PW-13 Kabhai Parmar and amount of Rs.40,000/- to PW-19 Somabhai Parmar under section 357 of the code by account pay cheque after proper verification. (d) bail bond stands discharged. (e) R&P be sent back forthwith.