(Per : HONOURABLE MR.JUSTICE D.H.WAGHELA) 1. The appellant herein is convicted for the offences punishable under Section 304 of IPC and Section 135 of the Bombay Police Act and sentenced to simple imprisonment for 10 years and total fine of Rs. 10,200/-.
2. Learned counsel, Mr. Pratik Barot, appearing by way of legal aid for the appellant, submitted that the appeal was proposed to be pressed only for the purpose of reduction of sentence and fine, in view of the fact that the appellant is belonging to extremely poor and backward class of the society and has already undergone imprisonment for nearly 7 years without any parole or temporary bail. He submitted that, as discussed in the impugned judgement, the quarrel between the victim and elder brother of the appellant had taken place on a trivial matter of recovery of Rs. 50/- and the appellant had appeared on the scene of offence afterwards, even according to the case of the prosecution. He further submitted that the appellant was aged hardly 20 years at the time of offence and had no criminal antecedent. Learned counsel also pointed out that the appellant had lost his father at an early age, was yet to marry, and upon his conviction alongwith his elder brother, his widowed mother was left to fend for herself at an advanced age.
3. Learned APP submitted that according to jail record of the appellant, he has already undergone 6 years and 9 months of imprisonment without any temporary bail or parole and he has returned in time to jail when he was released on furlough in the years 2008, 2009 and 2011; and his behavior in jail is stated to be good. He also submitted that in view of the loss suffered by the family of the victim, the meager amount of compensation awarded by the impugned judgement, to be paid out of the amount of fine, has also to be considered as an essential part of punishment.
4. Since there is no dispute about the factual findings recorded by the trial court, after elaborate discussion and appreciation of the evidence, it is clear that serious verbal altercation had taken place between the victim and the other accused person on 30.04.2005 at late night. Thereafter, the other accused person had brought a heavy iron rod from his house and called the appellant in aid and the victim had died due to injuries inflicted upon him by both the accused persons. The elder brother of the appellant also had the reputation of being a bully in the area, but the fact remains that the appellant was called by his brother in aid and he was proved to have weilded a pipe as a weapon.
5. Having regard to the facts and circumstances of the case, particularly, the age of the appellant and lack of evidence of motive or intention on his part in commission of the offence, the sentence of imprisonment imposed upon him is required to be modified; and the amount of fine imposed upon him is required to be reduced in view of his incapacity to pay any amount as stated by learned counsel, Mr. Barot. Accordingly, the appeal is partly allowed and the order of punishment imposed upon the appellant by the impugned judgement and order dated 24.07.2006 of learned Additional Sessions Judge, Surendranagar in Sessions Case No. 40 of 2005 is modified to the extent that the appellant shall undergo simple imprisonment for total period of seven years and pay fine of Rs. 10,000/-; and in default of payment of fine, shall undergo further simple imprisonment for a period of six months. The appeal stands partly allowed accordingly.
[D.H.WAGHELA, J.] [N.V.ANJARIA, J.] Jyoti