Gujarat High Court
Dolaram Laduji Vanzara vs State Of on 18 April, 2013
Author: S.G.Shah
Bench: S.G.Shah
DOLARAM LADUJI VANZARA....Applicant(s)V/SSTATE OF GUJARAT....Respondent(s) R/CR.RA/314/2007 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL REVISION APPLICATION NO. 314 of 2007 With CRIMINAL REVISION APPLICATION NO. 315 of 2007 TO CRIMINAL REVISION APPLICATION NO. 317 of 2007 FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE S.G.SHAH ================================================================ 1 Whether Reporters of Local Papers may be allowed to see the judgment ?2
To be referred to the Reporter or not ?3
Whether their Lordships wish to see the fair copy of the judgment ?4
Whether this case involves a substantial question of law as to the interpretation of the Constitution of India, 1950 or any order made thereunder ?5
Whether it is to be circulated to the civil judge ?
================================================================ DOLARAM LADUJI VANZARA....Applicant(s) Versus STATE OF GUJARAT....Respondent(s) ================================================================ Appearance:
MR PRAVIN GONDALIYA, ADVOCATE for the Applicant(s) No. 1 MR NJ SHAH, APP for the Respondent(s) No. 1 ================================================================ CORAM:
HONOURABLE MR.JUSTICE S.G.SHAH Date : 18/04/2013 ORAL COMMON JUDGMENT Heard Ld. Advocate Mr. Pravin Gondalia, appearing for the petitioners in all the applications and Ld. APP Mr. NJ Shah, for the respondent State.
2 The incident in question is dated 31/1/1999, when there was a quarrel between the children of the complainant and accused, namely Pravin Bhagvanbhai Vanzara with one Ashokbhai Bhimajibhai being neighbours at the place of residence of both. Due to such quarrel between the children, an unwarranted incident had taken place on the next day i.e. 01/02/1999 when both the groups had a quarrel amongst them with some weapons and/or instruments like iron rod, pipe, dhariya, etc., which resulted into injuries to the members of both the parties. Due to such incident, cross complaints were filed. So far as the complaint filed by present petitioners is concerned, where the present complainant and his colleagues were accused, after the trial, they all had been acquitted by the trial Court. Whereas against present petitioners, complaint being FIR No. I-40 of 1999 was registered in the Shaher Kotda Police Station wherein after investigation, police has filed charge-sheet before the Metropolitan Magistrate Court, Ahmedabad. Such charge-sheet was registered as Criminal Case No. 306 of 1999 wherein the trial Court has convicted the petitioners by his judgment and order dated 31/8/2006 under section 248 [2] of the Criminal Procedure Code [for short Cr. P.C. ] for the offences punishable under sections 323, 324, 325, 427 and 114 of the Indian Penal Code [for short IPC ] and ordered to undergo imprisonment for 2 years with fine of Rs.2,000/- and in default of payment of fine, to undergo imprisonment of additional 6 months. Out of the total fine of Rs.8,000/- that may be recovered from 4 accused present petitioners, the trial Court has awarded Rs.1,200/- to the complainant Bhagvanbhai Pratapji Vanzara towards damages for his scooter and cycle at the time of the incident.
3 Criminal Appeal Nos.
86 to 89 of 2006 filed by all the 4 petitioners before the Sessions Court, Ahmedabad, were dismissed by the judgment and order dated 7/6/2007 confirming the order of conviction and sentence passed by the trial Court.
4 Thus, there is concurrent findings of both, the trial Court and first appellate Court against the present petitioners regarding commission of offence as alleged, wherein several persons had got injuries; whereas the complainant Bhagvanbhai Pratapji Vanzara has received grievous injuries including fracture of lateral malleolus.
5 During the course of arguments, petitioners were unable to demonstrate from the available evidence on record as to how and why concurrent orders of conviction can be converted into acquittal. Since there is no reasons to interfere with the concurrent findings of fact regarding commission of offence, since there was cross complaints, it was difficult for the petitioners to deny the incident and thereafter relying upon the outcome of the incident i.e. injuries to the complainant and witnesses in the present case, the learned advocate for the petitioners had pointed out that in fact before the lower Court also they had prayed for extending benefit of Probation of Offenders Act, 1958 [for short the Act ] to the petitioners, but both, lower courts have declined to extend such benefits to the petitioners. In view of such position, the learned advocate for the petitioners has requested the Court to extend the benefit of the Act to the petitioners considering the fact that incident had taken place in the year 1999 and that since then, the petitioners are on bail and that petitioners have realized their mistake during such long period wherein they were arrested and then released on bail and also undergone marathon of trial and appeal as well as mental torture/ pain and huge expenses, etc. It is also submitted by Mr. Gondalia that now after passage of two decades, practically in the area, the social atmosphere has been calm down and there is no enmity amongst the people, but if present petitioners are directed to undergo the sentence awarded by both the lower Courts, then practically it would amount to reopening of the forgotten unwarranted incident which had taken place before more than one decade, inasmuch as if four persons from the locality have to undergo sentence for 2 years, because of the quarrel between the children, though the complainant and other witnesses have received some injuries, it would result into fresh disturbance, if not serious or tense atmosphere, but amongst different families and groups in the same area, which would ultimately result into unhappy situation in the locality. Therefore, learned advocate for the petitioners has prayed to extend the benefit of the Act, may be with strict conditions.
6 In view of the above development, when the petitioners themselves have prayed for extending benefit of the Act, practically they have admitted that the concurrent findings and conviction by both the lower Courts against them is sufficient to confirm the conviction against them and, therefore, I do not see any reason to enter into the minor details of the incident and concurrent judgments of conviction of each petitioner by the trial Court as well as Sessions Court in the impugned judgments. Thereby practically the order of conviction against each petitioner is confirmed.
7 Considering such submission, when record shows, while request of the petitioners to extend such benefits was declined by the trial Court, the trial Court has even not called for the report of the Probation Officer as required under the statute, by an order dated 22/2/2013, it was thought proper to call upon the report of the Probation Officer.
8 In pursuance of such order dated 22/2/2013, Ld. APP has called upon the report from the concerned Probation Officer and produced the same in sealed cover with forwarding letter dated 1/4/2013. Such cover is opened in the open Court and perused the reports dated 1/4/2013, which are ordered to be taken on record in each revision application as per the name of the petitioner.
9 This Court has perused the report of the Probation Officer, which is positive i.e. in favour of the petitioners, wherein it has been categorically stated by the Probation Officer that the conduct of the petitioners in their area is good. According to the reports of the Probation Officer, the petitioners in Criminal Revision Application Nos. 314 and 316 of 2007 are doing tailoring work for their livelihood; whereas the petitioners in Criminal Revision Application Nos. 315 and 317 of 2007 are working as drivers in private company. Therefore, it is clear that none of them are involved in any such activity which is otherwise in any manner creating disturbance in the neighbourhood. The Probation Officer has also annexed relevant documents like identity card of Election Commission of India and proof regarding LPG connection of the petitioners with details of their family members, which show that all of them are residing with their families including wife and children. Therefore, it cannot be said that any of the petitioners is having anything against them so as not to extend the benefits of the Act.
10 This leads to the only issue regarding whether benefits of the Act can be extended to the present petitioners or not. As already discussed hereinabove, the report of the Probation Officer is positive and in favour of the petitioners. It is submitted by advocate of petitioners that except this incident, there is no other complaint against them and they are never involved in any other case. It is further submitted that the incident had taken place because of the quarrel between the children which ultimately resulted into unhappy episode, for which the petitioners have undergone sufficient punishment in form of arrest, trial and thereby harassment, mental agony, etc. It is also submitted that the damage to the property of the complainant, as reported during the investigation i.e. Rs.1,200/- was already compensated by the trial Court by awarding amount of Rs.1,200/- to the complainant from the amount of fine being imposed upon the present petitioners. It is further submitted that now execution of the impugned judgments by way of undergoing imprisonment awarded to the petitioners may probably result into fresh disturbance amongst the families and neighbours. It is also submitted that all the petitioners are only earning members amongst their families and if the petitioners have to undergo the imprisonment for 2 years, members of their families would practically disturbed and suffer a lot for no fault on their part. Considering above position, I am of the opinion to extend benefit of the Act to all the petitioners. For coming to such conclusion, I am relying upon the following decisions :
[1] Abdul Qayum v. The State of Bihar reported in AIR 1972 SC 214 [2] Dilbag Singh v.
State of Punjab reported in AIR 1979 SC 680 [3] Ved Prakash v. State of Haryana reported in AIR 1981 SC 643 [4] Masarullah v. State of T.N. Reported in AIR 1983 SC 654 [5] Manubhai Jethabhai v. State of Gujarat reported in 1991 [2] GLH [U.J.] 22.
11 The sum and substance of all such cited cases are such that, benefit of the Probation of Offenders Act can be extended even by the High Court or Hon ble Supreme Court when accused were neither hardened criminals nor associated with hardened criminals, on the contrary, to sentence such person would itself achieve the object of associating him with hardened criminals.
12 When the incident found to have suddenly flared up on account of quarrel, and when antecedents of the accused persons were clean, benefit of probation should be given to the accused, the petitioners herein.
13 The Hon ble Supreme Court has categorically observed that sentencing the accused persons is a sensitive exercise of discretion and not routine or mechanical prescription acting on hunch. The trial Court should have collected materials necessary to help in awarding a just punishment in the given circumstances. The social background and the personal factors of the crime-doer are very relevant although in practice Criminal Courts have hardly paid attention to the social milieu or the personal circumstances of the offender. Even if Section 360 of the Cr. P.C is not attracted, it is the duty of the sentencing Court to be activist enough to collect such facts as have a bearing on punishment with a rehabilitating slant. In given cases, the Hon ble Supreme Court has considered the age of the accused, their family members and their status as well as long period of litigation against little period of imprisonment, which will surely served as a deterrent. In a given case, even when injuries were by unauthorized fire-arm, when the report of the Probation Officer was positive and when the Probation Officer recognized that opportunity be given to the appellant to improve himself and bring up his family by honest labour so that the interests of social defence may be secured, the Hon ble Apex Court has extended the benefit of Probation of Offenders Act to the accused.
14 In the present case also, when the petitioners admit the concurrent findings of both the Courts and request to extend benefit of the Act and when such request was made before the trial Court also, considering over-all situation, which is narrated and discussed hereinabove regarding the incident, status of the parties and report of the Probation officer, I am of the view to extend benefit of the Act to all the petitioners, however, confirming their conviction and hence all the petitions are partly allowed. However, considering the injuries to the victim complainant, I would also like to exercise the powers conferred under Section 5 of the Act to award compensation to the victim. The provisions of Sections 4 and 5 clearly entitle this Court to extend the benefit and to award compensation to the victim. Hence the petitions are partly allowed with following directions :-
I The petitions are partly allowed. The impugned judgments and orders are confirmed so far as the decision regarding conviction of the petitioners are concerned, but it is modified so far as the decision of awarding sentence is concerned. Thereby it is directed that the petitioners be released under Section 4 [1] of the Probation of Offenders Act, 1958 read with section 361 of the Criminal Procedure Code and instead of sentencing them, it is directed that they be released on entering into bonds; which is to be executed as per the provisions under Section 4 of the Probation of Offenders Act read with section 361 of the Criminal Procedure Code by the petitioners original convicts, before the trial Court with two sureties; to appear and receive sentence when called upon during the period of three years from the date of release and in the meantime to keep the peace and be of good behaviour. Such undertaking and surety should be for Rs.10,000/-. In addition the Probation Officer shall have to supervise over the offenders for a period of three years and shall make report once in a year to the trial Court about the conduct of the petitioners.
II. The amount of fine of Rs.2,000/- each is enhanced and thereby fine is increased from Rs.2,000/- to Rs.4,500/- each, which shall be deposited on or before execution of the bonds for good behaviour before the trial Court as directed hereinafter. Such additional amount of fine, which would be Rs.10,000/-, in aggregate, shall be paid by the trial Court to the original complainant victim as compensation under Section 5 of the Probation of Offenders Act.
III. I further direct that thereby the order of substantive sentence imposed upon by the impugned judgments shall remain under suspension till the period of the bond i.e. for three years and it shall become inoperative on completion of three years. However, failing to submit sureties and bonds as aforesaid within a period of six weeks from the date of such judgment and/or if there is a breach of any of the conditions of bond, the trial Court shall be at liberty to issue non-bailable warrant against the petitioners original convicts to serve the sentence imposed by the trial Court and as confirmed by the impugned judgment of the Sessions Court.
15 The bail bonds executed by the petitioners original convicts pending these petitions, shall stand discharged on the date on which the petitioners original convicts execute the bonds under Section 4 of the Probation of Offenders Act read with section 361 of the Criminal Procedure Code before the trial Court as directed hereinabove.
(S.G.SHAH, J.) * Pansala.
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