1. The present appellant - State has preferred this Appeal under Section 377 of the Code of Criminal Procedure, against the judgment and order of conviction and sentence dated 19.7.2005 passed by the learned Additional Sessions Judge (Fast Track Court No.18), Vadodara in Sessions Case No.178 of 2004, whereby the learned Sessions Judge has convicted and sentenced the appellant to undergo R.I. for five years for the offence punishable under Section 304 (Part-I) of the Indian Penal Code and to pay the find of Rs.500/-, in default, further S.I. for 15 days. Therefore, for enhancement of the sentence imposed by the learned Sessions Judge, the State has preferred this Appeal.
The brief facts of the prosecution case is as under:
2. As per the case of the prosecution in brief is that the complainant lodged complaint before Nasvadi Police Station complaining that some fifteen years back, Mr. Singabhai, father of the accused abused as witch, sorceress lady, known black magic to the grand-mother of the complainant, for which the deceased Ramatbhai (brother of the present accused) had the occasion of saying few hards to the father of the accused to which, he did not receive in good taste by picking up quarrels and also assaulted the deceased physically and situation was brought under control by the intervention of few high profile people of the village and under the formula of compromise worked out accordingly, the father of the accused was made to leave the village Dabba and he had to settle down in the village Mathasankad, Ta. Nasvadi for the rest of his life. The complainant has further stated in his complaint that the accused had harbouring animosity over the issue, all these years and on 29.6.2004, when a meeting was held under the auspices of one voluntary organization called "Rajpipla Society Service Association" at village Mathasankad pertaining to the problems faced by the villagers in relation to the land of forest and in which the residents of surrounding villages assembled where the deceased the complainant and many people of their village also went to participate in the meeting. As per say of the complainant, the meeting started at about 12:15 noon and the deceased set on the Otala of school and the complainant was also there and at about 1:00 o'clock, the accused came with towel wrapped on his body, the complainant immediately identified him, the accused alleged to have proceeded near the otala, where the deceased was sitting and after reaching near the deceased, the accused carried with him the weapon spear (Jamiya) in a concealed manner and all of a sudden gave a blow of spear to Ramatbhai, the deceased on his left side of abdomen and the deceased after receiving the blow immediately fell down in the pool of his own blood. The accused thereafter, with blood stain spear attempt to run away, who came to be chased by few people of the village of the complainant along with him and one of them namely Nimji Pandya Du. Bhil caught hold of the accused and successfully snatched the weapon spare from the acused but the people of village Mathasankad forcefully got the accused relieved from the clutches of Nimji Pandya and others and the accused escaped. Therefore, the complaint was lodged before Nasvadi Police Station.
3. Thereafter, statements of the witnesses were recorded, panchnama was drawn and accused was arrested. There was sufficient evidence against the appellant, charge-sheet was filed. Thereafter, as the case was exclusively triable by the Court of Sessions, the learned Magistrate has committed the case to the Court of Sessions, which was numbered as Sessions Case No.178 of 2004.
4. Thereafter, the charge was framed against the appellant. The appellant - accused has pleaded not guilty and claimed to be tried.
5. To prove the case against the appellant, the prosecution has produced documentary evidence and also examined the witnesses before the Sessions Court.
6. Thereafter, after examining the witnesses, further statement of the appellant - accused under Section 313 of the Code of Criminal Procedure was recorded in which the appellant - accused has denied the case of the prosecution.
7. After considering the oral as well as documentary evidence and after hearing the parties, learned Additional Sessions Judge, Fast Track Court No.18, Vadodara vide judgment and order dated 19.7.2005 held the appellant - accused guilty to the charge levelled against him as stated above.
8. Feeling aggrieved and dissatisfied with the impugned judgment and order of conviction and sentence passed by the learned Additional Sessions Judge, Fast Track Court No.18, Vadodara , the present appellant has preferred this appeal.
9. Learned APP Mr. Parikh appearing on behalf of the appellant- State submitted that the order of sentence passed by the learned Sessions Judge in unduly lenient and inadequate. He further submitted that under Section 304 (Part - 2) of the Indian Penal Code, the maximum sentence is inflicted, but the learned Judge has not considered the provisions of the Section. He further submitted the learned Sessions Judge has not assigned further special reasons for inflicting the sentence, which is less than what is provided under the Act. He further submitted that the learned Sessions Judge has imposed sentence of five years only for the offence punishable under Section 304 Part -I by adopting very lenient view and therefore, it is not sufficient and the learned Sessions Judge ought to have considered the offence under Section 302 of the Indian Penal Code, but having not considered the same, the enhancement regarding sentence is required to be considered.
10. Learned advocate Mr. M.T. Saiyed is appointed amicus-curie by this Court. He has contended that the learned Judge has rightly imposed the sentence and therefore, the appeal is not required to be entertained. Learned Sessions Judge, after considering all the aspects, the learned Sessions Judge imposed the sentence of R.I. for 5 years for the offence punishable under Section 304 (Part- I) of the Indian Penal Code.
11. I have perused the records and considered the submissions made by the learned APP. I have also perused the judgment and order passed by the learned Sessions Judge. From the perusal of the judgment and order, I am of the view that learned trial Judge has rightly observed the evidence and also rightly sentenced the appellant. I am in total agreement with the findings assigned by the learned Sessions Judge. The learned Sessions Judge has clearly observed in his order that the accused has been held guilty for committing culpable homicide not amounting to murder. As per the provisions of Section 304(Part I), the Court can award the punishment for life or imprisonment for 10 years and fine. Learned Sessions Judge has rightly considered the evidence in the matter and rightly convicted the accused by taking into consideration all the aspects of the matter. He has considered the interest of the family members of accused. Therefore, this Court is not inclined to interfere with the findings given by the learned Sessions Judge.
In view of the above observation, the Appeal is dismissed.
(Z.K.SAIYED,J.) ynvyas Top