Gujarat High Court
State Of Gujarat vs Laxmanbhai @ Amit Motibhai Chavda & on 9 October, 2015
Author: Ks Jhaveri
Bench: Ks Jhaveri, G.B.Shah
R/CR.A/999/2009 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL APPEAL NO. 999 of 2009
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE KS JHAVERI
and
HONOURABLE MR.JUSTICE G.B.SHAH
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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 or any order made thereunder ?
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STATE OF GUJARAT....Appellant(s)
Versus
LAXMANBHAI @ AMIT MOTIBHAI CHAVDA &
1....Opponent(s)/Respondent(s)
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Appearance:
MR LR PUJARI, ADDL PUBLIC PROSECUTOR for the Appellant(s) No. 1
MR. HARDIK K RAVAL, ADVOCATE for the Opponent(s)/Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE KS JHAVERI
and
HONOURABLE MR.JUSTICE G.B.SHAH
Date : 09/10/2015
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R/CR.A/999/2009 JUDGMENT
ORAL JUDGMENT
(PER : HONOURABLE MR.JUSTICE KS JHAVERI)
1. The State of Gujarat, by way of filing the present appeal, before this Court has questioned the impugned judgment and order dated 20.01.2009 passed by the learned Additional Sessions Judge, Ahmedabad in Sessions Case No. 180 of 2005 with Sessions Case No. 230 of 2008 whereby the original accused no. 1 has been sentenced to five years rigorous imprisonment and fine of Rs. 25000/-, in default, rigorous imprisonment for two years for the offence under sections 307, 323, 325, 294 & 114 of Indian Penal Code as also under section 135(1) of B.P. Act. Original accused no. 2 has been sentenced to four years rigorous imprisonment and fine of Rs. 25000/-, in default, rigorous imprisonment for two years for the offence under sections 307, 323, 325, 294 & 114 of Indian Penal Code as also under section 135(1) of B.P. Act. The trial court however granted probation to both the accused and ordered them to be released on probation on their depositing a sum of Rs. 25000/- each towards fine and on their executing a bond with a separate surety in the sum of Rs. 25000/- as also personal undertaking to appear and receive the sentence when called upon during the period of three years from the date of judgement of the trial court. The present appeal is filed for enhancement of the sentence awarded and the probation granted by the trial court.
2. It is the case of the prosecution that on 23.10.2004, one Jayesh Makwana who was working as a labourer on a lathe machine in a factory situated in Swaminarayan Estate objected to the welding work being done outside Unnati Page 2 of 6 HC-NIC Page 2 of 6 Created On Thu Oct 15 00:42:27 IST 2015 R/CR.A/999/2009 JUDGMENT Industries situated near the factory where Jayesh was working. It is the case of the prosecution that a scuffle took place between the accused persons and Jayesh on 23.10.2004 and thereafter on 25.10.2004, original accused no. 1 & 2 and the absconding accused accompanied by other persons, laced with iron pipes came to the factory where Jayesh was working. Accused no. 1 called one Chandrakant and Jayesh out of their factory and after having a scuffle, gave iron pipe blow on the head of Jayesh as a result of which he sustained injuries and was taken to hospital. During the quarrel, one Jayantibhai Patel intevened but the absconding accused caught hold of him and accused no. 2 started giving fist blows in the abdomen as well as chest of Jayantibhai Patel.
2.1 A complaint was lodged accordingly and pursuant to the complaint, investigation was carried out. After investigation, chargesheet was filed and as the case was triable by the Court of Sessions, it was committed to the Court of Sessions. The trial Court framed charge against the accused. The accused pleaded not guilty to the charge and claimed to be tried. Trial was initiated against the accused and during the course of trial the prosecution examined as many as 18 witnesses as oral evidence and also exhibited as many as 7 documents as documentary evidence.
2.2 At the end of the trial and after recording the further statement of the accused under section 313 of Cr.P.C., and hearing arguments on behalf of prosecution and the defence, the learned Additional Sessions Judge convicted original accused as mentioned aforesaid. Being aggrieved by and dissatisfied with the aforesaid judgement and order passed by Page 3 of 6 HC-NIC Page 3 of 6 Created On Thu Oct 15 00:42:27 IST 2015 R/CR.A/999/2009 JUDGMENT the Sessions Court, the present appeal has been preferred by the State.
3. Mr. Pujari, learned APP appearing for the State has submitted that the sentence imposed upon original accused is on lower side and inadequate looking to the gravity of the offence. He submitted that the sentence is required to be enhanced looking to the evidence of witnesses and the documents on record.
4. Mr. Hardik Raval, learned advocate appearing for the respondent - accused submitted that considering the facts and circumstances of the case, this appeal does not call for enhancement of sentence.
5. We have heard learned advocates for the parties. We have gone through the medical evidence on record. It is well settled that a question of a sentence is a matter of discretion and when discretion has been properly exercised along accepted judicial lines, an appellate Court should not interfere to the detriment of an accused person except for very strong reasons which must be disclosed on the face of the judgment. In a matter of enhancement, there should not be interference when the sentence passed imposes substantial sentence. Interference is only called for when it is manifestly inadequate.
6. Having considered minutely the evidence on record, oral as well as documentary, which we have appreciated, re- appreciated and reconsidered in light of the latest decisions of the Apex Court we find that the finding of facts as far as the Page 4 of 6 HC-NIC Page 4 of 6 Created On Thu Oct 15 00:42:27 IST 2015 R/CR.A/999/2009 JUDGMENT conviction of the original accused under Sections 307, 323, 325, 294 & 114 of Indian Penal Code as also under section 135(1) of B.P. Act of Indian Penal Code is concerned, the same is just and proper. Moreover, since there is no appeal filed by the accused against the conviction and sentence, we confirm the conviction imposed upon the original accused. However, it is required to be noted that Jayeshbhai was seriously injured because of head injuries sustained by him and was unconscious for about three or four days and had also suffered paralysis on left side and also had multiple brain hemorrhage. Therefore, going by the injuries sustained by the injured persons, we are of the view that the trial court though has rightly convicted and sentenced the accused, but the benefit of probation granted to them is erroneous. We are inclined to quash the probation granted to them.
7. In the premises aforesaid, the conviction and sentence imposed upon the respondents - original accused under Sections 307, 325, 323, 294 and 114 of the Indian Penal Code and Section 135 of B.P. Act vide judgment and order dated 20.01.2009 passed by the learned Additional Sessions Judge, Court No. 6, Ahmedabad in Sessions Case No. 180 of 2005 with Sessions Case No. 230 of 2008 is upheld. However, the order granting probation to the accused persons is hereby quashed and set aside. The accused persons are directed to surrender before the authorities within a period of ten weeks from today in order to serve out the sentence imposed by the trial court. The period of sentence already undergone, if any, shall be considered for remission and set off in accordance with law. The judgement and order dated 20.01.2009 is modified accordingly. Appeal is allowed to the Page 5 of 6 HC-NIC Page 5 of 6 Created On Thu Oct 15 00:42:27 IST 2015 R/CR.A/999/2009 JUDGMENT aforesaid extent.
(K.S.JHAVERI, J.) (G.B.SHAH, J.)
divya
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