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2011 Supreme(Guj) 223
2011 (2) GCD 1423 (Guj)
Hon’ble Mr. Justice Z.K. Saiyed
Jangubhai Bhotiabhai Rathva
Versus
State of Gujarat
Criminal Appeal No. 2607 of 2009—Decided on 05/04/2011
Appearance :
Mr. Hardik A. Dave, for the Appellant No. 1.
Mr H.L Jani, Ld. Addl. Public Prosecutor, for the Opponent No. 1.
Point in Issue :
Whether appellant is entitled to reduction of period of sentence awarded to him.
Headnote:Head Note :
[Indian] Penal Code, 1860 (Central Act 45 of 1860) — Section 307 — Arms Act, 1959 (Central Act 54 of 1959) — Section 25(1)(a) — Conviction — Sentence of seven years and fine — Claim for reduction of period of sentence — Scope of — Finding as to — Court held that prosecution has proved it’s case beyond reasonable doubt — The trial Court has committed no grave error in convicting the appellant — Looking to the fact that appellant is behind bar for almost three years and he is an old person, sentence imposed on appellant is harsh — Court as such confirming the conviction of appellant reduced the period of sentence to five years instead of seven years.
Held :
From the oral evidence of the medical expert as well as evidence of Police Inspector, it is true that prosecution has proved its case beyond reasonable doubt. Court find nothing to say that the learned Judge has committed any grave error. Court has also perused the submission made by the learned Counsel for the appellant that the appellant is behind the bars for almost three years. Looking to the facts and circumstances of the case, Court is of the opinion that conviction imposed upon the appellant is very harsh. Court is of the opinion that when the appellant is behind the bars for almost three years, if the sentence be reduced, same would meet with the ends of justice. Even looking to the submissions advanced by the learned Counsel for the appellant and circumstances of the case, sentence imposed upon the appellant is required to be reduced and modified on the ground of sympathy also. [Para 13]
However, the judgment and order of conviction dated 24th December, 2009 passed by the learned 4th Additional Sessions Judge, Vadodara at Camp Chhotaudaipur, in Sessions Case No. 70 of 2008 is hereby reduced and modified to the extent that now the appellant shall have to undergo rigorous imprisonment for a period of five years instead of seven years for the offence punishable under Section 307 of the Indian Penal Code. The rest of the judgment and order dated 24th December, 2009 shall remain unaltered. [Para 14]
Law Laid Down :
Where sentence imposed by trial Court on conviction is harsh, it need to be reduced in interest of justice.
Z.K. Saiyed J.—The appellant has preferred the present appeal against the judgment and order of conviction and sentence dated 24th December, 2009 passed by the learned 4th Additional Sessions Judge, Vadodara at Camp Chhotaudaipur, in Sessions Case No. 70 of 2008, whereby the learned Judge has convicted the appellant-accused for the offence punishable under Section 307 of the Indian Penal Code and sentenced him to undergo rigorous imprisonment for a period of seven years, and also imposed fine of Rs.1,000/-, and in default of payment of fine, sentenced him to undergo simple imprisonment for a further period of six months. The appellant has also convicted for the offence punishable under Section 25(1)(a) of the Arms Act and sentenced him to undergo simple imprisonment for a period of six months, and also imposed fine of Rs.500/-, and in default of payment of fine; sentenced him to undergo simple imprisonment for a further period of one month. However, the appellant was acquitted from the offence punishable under Section 504 of the Indian Penal Code, Section 40 of the Arms Act and under Section 135 of the Bombay Police Act.
2. It is the case of the prosecution that on 20th May, 2008 at village Zaab, the complainant and other persons were sitting in open space just opposite to the house of Bhagubhai Bavabhai Rathava. It is the case of the prosecution that at that point of time, the present appellant and other accused persons came there and abused the complainant and other persons. It is further the case of the prosecution that thereafter the appellant had came there with gun in his hand and the other two accused persons had came there with stick and sword in their hand and thereby the appellant fired the arms four times. Because of firing, the complainant and other persons got injured.
3. Therefore, a complaint to the said effect was registered by the complainant with Karali Police Station. Thereafter, as the sufficient evidence found, the accused persons came to be chargesheeted before the Court of Chhotaudaipur. Thereafter, as the case was exclusively triable by the Court of Sessions, the same was transferred to the Court of Sessions.
4. Thereafter, charge came to be framed at Exhibit 4 against the accused persons for the offences punishable under Sections 307, 504 and 114 of the Indian Penal Code and under Section 30 of the Arms Act. Thereafter, as the accused persons pleaded not guilty to the charge framed against them, trial commenced.
5. Thereafter, the prosecution has produced oral as well as documentary evidence on record in support of their case. Prosecution has examined 13 witnesses and also produced 18 documentary evidence on record.
6. Thereafter, after filing closing pursis by the prosecution, under Section 313 of the Code of Criminal Procedure, 1973 further statements of the accused persons were recorded. Neither the accused had examined defence witnesses nor the accused had given any evidence on oath.
7. After hearing both the sides, the learned 4th Additional Sessions Judge, Vadodara at Camp Chhotaudaipur, by his judgment and order of conviction dated 24th December, 2009 passed in Sessions Case No. 70 of 2008, convicted the appellant as stated above. The learned trial Judge was pleased to acquit the original accused Nos.2 and 3 from the charges levelled against them.
8. Being aggrieved by and dissatisfied with the said judgment and order of conviction dated 24th December, 2009 passed by the learned 4th Additional Sessions Judge, Vadodara at Camp Chhotaudaipur in Sessions Case No. 70 of 2008, the appellant here-in-above has preferred the present Criminal Appeal before this Hon’ble Court.
9. I have heard Mr. Hardik A. Dave, learned Counsel for the appellant and Mr. H.L. Jani, learned Additional Public Prosecutor appearing on behalf of the respondent-State.
10. Mr. Dave has taken me through the evidence of prosecution witnesses and the documentary evidence and submitted that from the evidence produced on record it i
