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Gujarat High Court · body

2020 DIGILAW 78 (GUJ)

Chanubha Vardhaji Sodha v. State of Gujarat

2020-01-16

V.P.PATEL

body2020
JUDGMENT : 1. The Appellant/Original Accused has filed this Appeal under Section 374 of the Criminal Procedure Code (“the Code” for short) being aggrieved and dissatisfied with the judgment and order dated 25.5.2005 passed by the learned Presiding Officer and Additional Sessions Judge, Fast Track Court No. 5, Gandhidham Kachchh (“the learned trial court” for short) in Sessions Case No.40/2004. 2. Heard learned Advocate Mr. Viral Vyas for learned Advocate Mr. Ashish M. Dagli for the Appellant and learned APP Ms. Jirga Jhaveri for the Respondent – State of Gujarat and learned Advocate Mr. Malaykumar S. Patel for the son of Original Complainant and Injured. Order under Challenge: 3. The Appellant Accused has challenged the order dated 25.5.2005 passed by the learned trial court in Sessions Case No.40 of 2004. The trial court has convicted the Appellant Accused under Section 235(2) of the Cr.PC. for the offence punishable under Section 307 of the Indian Penal Code and imposed sentence of RI of 3 years and fine of Rs.1000/- in default of payment of fine to undergo SI of 6 months. The learned trial court has also convicted the Appellant Accused under Section 25(1) (B) (A) of the Arms Act and sentenced to suffer RI of 1 years and fine of Rs.500/- in default of payment of fine to undergo RI of 3 months. The trial court has also convicted the Appellant accused for the offence punishable under Section 135 of the Bombay Police Act and sentenced him to suffer RI of 3 months and fine of Rs.100/- in default of payment of fine to under RI of 15 days. It is also ordered that the Appellant Accused shall pay Rs.1000/- as compensation under Section 357 of the Cr.P.C. The Appellant has to undergo all the sentences concurrently and he is also entitled to set off the sentence already undergone. Arguments for the Appellant Accused: 4. Learned Advocate for the Appellant Accused has argued that the judgment and order of conviction is absolutely illegal and contrary to the law and fact. That the judgment and order is contrary to the facts on record and fundamental principles of criminal jurisprudence which is required to be quashed and set aside. That the learned trial court has not appreciated documentary as well as oral evidence on record in its proper perspective and committed serious error of law in convicting the Appellant Accused. That the judgment and order is contrary to the facts on record and fundamental principles of criminal jurisprudence which is required to be quashed and set aside. That the learned trial court has not appreciated documentary as well as oral evidence on record in its proper perspective and committed serious error of law in convicting the Appellant Accused. 4.1 It is further argued that though PW-1 who is the complainant, is not an eyewitness in spite of that much importance is given. It is further argued that PW-2 Yogesh Nathubhai Chauhan, who is the injured witness has turned hostile. The trial court has wrongly appreciated this evidence. It is further argued that the panchnama of scene of offence as well as the panchname are not proved according to law. That the medical evidence is a corroborative piece of evidence, it cannot be a basis for conviction. Argument of the prosecution: 5. Learned APP Ms. Jirga Jhaveri has argued that the trial court has considered the oral as well as documentary evidence in its proper perspective. The trial court has considered the deposition of the injured witness, and eyewitness. That they have supported the case of the prosecution. That the medical evidence is corroborated with the version of the injured witness. Thus the prosecution has established its case beyond reasonable doubt. It is further argued that a minor discrepancy cannot be taken into consideration. She submitted that ingredients of the offence are established and requested to dismiss the Appeal. Facts of the case: 6. The complainant - PW-1 - Motibhai Bhurabhai Chauhan has filed a complaint on 24.10.2003 at Rapar Police Station for the incident which took place on 23.10.2003. The said complaint was registered as I-CR No. 101/2003 for the offence punishable under Section 307 of the Indian Penal Code and for the offence punishable under Section 25(1) (B) (A) of the Arms Act as well as for the offence punishable under Section 135 of the Bombay Police Act. 6.1 After conducting the investigation, the chargesheet has been filed before the court of learned Judicial Magistrate First Class, Rapar, District Kheda. The same is registered as Criminal Case No. 297/2004. As the offence is triable by the court of Sessions, the learned JMFC, Rapar committed the case to the court of Sessions under Section 209 of Cr.P.C. The case is registered as Sessions Case No. 40/2004. The same is registered as Criminal Case No. 297/2004. As the offence is triable by the court of Sessions, the learned JMFC, Rapar committed the case to the court of Sessions under Section 209 of Cr.P.C. The case is registered as Sessions Case No. 40/2004. 6.2 The trial court has framed the charge at Exh.5 against the present Appellant Accused. Thereafter the prosecution has examined 19 witnesses and produced 29 documentary evidence in support of its case. After completing the recording of the evidence of prosecution, the trial court has recorded the further statement under under Section 313 of Cr.P.C.. After giving an opportunity to the prosecution and defence for hearing, the trial court has delivered the impugned judgment and order on 25.5.2005. The Appellant Accused was convicted under Section 235 (2) of the Code. Merits of the Case: 7. As per the complaint, the case of the prosecution is that the complainant was present at his residence on 23.10.2003 at about 6:30. At that time he has heard the firing voice. Thereafter his wife informed him that his nephew Yogesh is injured by the firing from the gun. Thereafter he has gone to the place of incident i.e. near the house of Nattu Maharaj where the injured Yogesh was lying down. It is stated that he has seen that Yogesh was injured on the right hand shoulder and on the abdomen part. Thereafter the injured Yogesh was removed to the government hospital, Rapar. That he had asked Yogesh how the injury is caused and in reply Yogesh stated that one person who has put on white shirt has fired against him and injury is caused. That he has seen the person who has fired was Anandji Valaji Soda (the Appellant) with gun in his hand. Thereafter the complaint was filed. 8. During the course of argument, he has confined his argument so far as sentence is concerned. He further argued that the Appellant Accused and the original injured person have made a compromise. They are of the same village, they have good relationship after the incident took place. It is further submitted that the original injured person PW-2 Yogesh Nathubhai Chauhan filed an Affidavit to that effect. It is requested that considering the case, arguments confined only to the sentence the Appellant Accused may be given sympathy and sentence may be modified to the already undergone. It is further submitted that the original injured person PW-2 Yogesh Nathubhai Chauhan filed an Affidavit to that effect. It is requested that considering the case, arguments confined only to the sentence the Appellant Accused may be given sympathy and sentence may be modified to the already undergone. It is further submitted that he has undergone 7 months and 3 days of imprisonment. It is also argued that the Appellant Accused is ready and willing to give compensation to the injured witness as this court may deem fit. 9. Learned Advocate Mr. Malaykumar S. Patel appeared on behalf of the son of the original complainant and the injured person – Yogesh Nattubhai Valand who has been examined as PW-2 at Exh.13. He has filed affidavit on 24.12.2019. Learned Advocate Mr. Patel has submitted that on 24.12.2019 the injured witness and the son of the complainant were present. The affidavit was taken on record vide order dated 24.12.2019. This Court (Coram: A.G.Uraizee, J.) has recorded the satisfaction as regards to the volition of the deponent as under : “Maheshbhai Motibhai Valand, who happens to be the son of the complainant, has expired in 2018 and Yogeshbhai Natubhai Chauhan (P.W.2) injured are present in person in the Court. They tender their respective affidavit wherein it is stated that they have settled the dispute with the appellant. Their respective affidavit is taken on record. They jointly submit that they have settled their dispute on their own volition without there being any threat or coercion from the appellant. They also state that now relations with the appellant are cordial and they are residing in the same village.” 9.1 Learned Advocate for the victim has cited judgment reported in (2005) 7 SCC 55 delivered in case of Badrilal v. Stat of M.P. The Hon'ble Supreme Court has held in paragraphs 4 and 5 as under: “(4) A joint petition of compromise has been filed on behalf of the parties in which prayer has been made for recording the compromise. The offence under Section 307 IPC is not a compoundable one, therefore, compromise cannot be recorded, but at the same time it is well settled that while awarding sentence the effect of compromise can be taken into consideration. It has been stated that the appellant has remained in custody for a period of about 14 months and there is no allegation that he assaulted the deceased. It has been stated that the appellant has remained in custody for a period of about 14 months and there is no allegation that he assaulted the deceased. In the facts and circumstances of the case, we are of the view that ends of justice should be met in case the sentence of imprisonment awarded against the appellant by the trial court and reduced by the High Court is further reduced to the period already undergone. (5) ACCORDINGLY, the appeal is allowed in part and the sentence of imprisonment against the appellants is reduced to the period already undergone. The appellant is directed to be released forthwith if not required in connection with any other case.” 10. On perusing the affidavit of Yogeshbhai Natubhai Chauhan (Valand), the following facts is stated in the affidavit: “I further say and submit that after the registration of the FIR there has been amicable resolution of the dispute between the parties. It is further submitted that the appellant and deponent herein are residing in the same village and there has been long standing cordial relation now. It is further submitted that the deponent herein participates in the family functions of the appellant. I say and submit that the incident in question is of 2003 and thereafter, the parties are having good relation. It is further submitted that the deponent herein has no objection if the Hon'ble Court is pleased to quash and set aside the conviction awarded to the appellant in the interest of justice. It is further submitted that after registration of the aforementioned FIR, the dispute between the parties have been amicably settled and therefore as of now there is no ill will or grievance between the parties. It is further submitted that the deponent and the appellant herein happens to from same village therefore, the matter is amicably resolved with the intervention of the family members. It is further submitted that no useful purpose would be survive with continuation of the proceedings and therefore also the case of the present appellant requires consideration. It is further submitted that the deponent and the appellant herein happens to from same village therefore, the matter is amicably resolved with the intervention of the family members. It is further submitted that no useful purpose would be survive with continuation of the proceedings and therefore also the case of the present appellant requires consideration. I further say and submit that I have not received any serious injury in the said incident and as of now there has been amicable resolution of dispute between the parties with the intervention of the family members, relatives and friends, the grievance and dispute between the parties have been resolved and therefore deponent herein has no objection if the captioned appeal is allowed by this Hon'ble Court in the interest of justice. 11. Mr. Maheshbhai Motibhai Valand has also filed affidavit dated 24.12.2019 wherein he has stated as under: “I further say and submit that my father herein original complainant who was expired on dated 17.07.2018 and therefore, I am aware about the facts and circumstances of the present case. I further say and submit that after the registration of the FIR there has been amicable resolution of the dispute between the accused and complainant but now the complainant was expired. It is further submitted that the appellant and the family members of the complainant herein are residing in the same village and there has been long standing cordial relation now. It is further submitted that the family members of the complainant herein participates in the family functions of the appellant. I say and submit that the incident in question is of 2003 and thereafter, the parties are having good relation. It is further submitted that I, the son of the complainant herein has no objection if the Hon'ble court is pleased to quash and set aside the conviction awarded to the appellant in the interest of justice. It is further submitted that after registration of the aforementioned FIR, the dispute between the parties have been amicably settled and therefore as of now there is no ill will or grievance between the parties. It is further submitted that no useful purpose would be survive with continuation of the proceedings and therefore also the came of the present appellant requires consideration. It is further submitted that no useful purpose would be survive with continuation of the proceedings and therefore also the came of the present appellant requires consideration. I further say and submit that dispute between the parties with the intervention of the family members, relatives and friends, the grievance and dispute between the parties have been resolved and therefore I have no objection if the captioned appeal is allowed by this Hon'ble Court in the interest of justice.” 12. Learned APP Ms. Jirga Jhaveri for the Respondent – State of Gujarat has submitted the jail remarks dated 16.1.2020 and requested to take the jail remarks on record. The same is taken on record. She has further submitted that looking to the development of relation between the parties the court has wide discretion to modify the sentence. 13. On perusing the jail remarks following facts are emerged. Sr. No. Description Remarks 1. Number, Name and present age of the Accused 3242/2004 – Chanubha Vardhaji Sodha 2. Court Additional Sessions Court, Gandhidham 3. Sections of IPC IPC 307, 114 4. Date of arrest 1/4/2004 5. Police Station and I-CR No. Rapar Police Station I-CR No. 101/2003 6. Total days spent in jail (As on 4.11.2004) Years – Month – Days 00 – 07 – 03 15. Remarks The Accused has not availed any temporary bail. 14. This court has gone through the contents of affidavit filed by the victim and son of the complainant. It appears that the Appellant accused and the victim have settled their disputes amicably. They have good relationship at present. The learned Advocate for the Appellant has confined his arguments limited up to the sentence imposed by the learned trial court to the Appellant Accused. Section 307 of the IPC is a non-compoundable offence. However, the fact that the incident is an old one, i.e. 2003, more than 17 years have been passed. The punishment is prescribed for a term which may extend to ten years. There is no minimum sentence is prescribed by law. 15. In view of the above, it has been stated that the Appellant Accused has remained in custody for the period of 7 months and 03 days. The punishment is prescribed for a term which may extend to ten years. There is no minimum sentence is prescribed by law. 15. In view of the above, it has been stated that the Appellant Accused has remained in custody for the period of 7 months and 03 days. In facts and circumstances of the case, I am of the view that ends of justice should be met in case if sentence of imprisonment awarded against the Appellant Accused by the learned trial court be reduced to the period already undergone and increase the fine. Hence, the following order is passed: FINAL ORDER (i) Accordingly, the Appeal is allowed in part and the sentence of imprisonment against the Appellant Accused is reduced to the period already undergone and fine of Rs.50000/- (Rupees Fifty thousand) in default of of fine, the Appellant Accused shall undergo simple imprisonment of 3 months. The Appellant Accused shall deposit the rest of the amount of fine within 45 days from today. (ii) If fine is paid, the trial court shall pay Rs.40000/- (Rupees Forty thousand) to the injured Yogeshbhai Nathubhai Chauhan (Valand) under Section 357 of the Code. (iii) Bail bond stands discharged. (iv) The Registry is directed to send copy of this judgment to the concerned court for certification under Section 388 of the Code. (v) R & P be sent back to the trial court forthwith.