Honourable Mr. Justice Z.K. Saiyed

1. The present appellants have preferred this Appeal under Section 374(1) of the Code of Criminal Procedure, against the judgment and order of conviction and sentence dated 7.12.2006 passed by the learned Special Judge (Atrocity), Gandhidham, Dist. Kutch in Sessions Case No. 51 of 2004, whereby the learned Special Judge has convicted the appellants under Sections 325, 506(2), 333, 342, 114 of the Indian Penal Code. Learned Special Judge was pleased to order the appellant No. 1 to undergo R.I. for five years and to pay a fine of Rs.500/-, in default, to further undergo six months S.I. for the offence punishable under Section 325 of the Indian Penal Code and for the offence punishable under Section 506(2) of the Indian Penal Code, the appellant No. 1 was ordered to undergo R.I. for five years and fine of Rs.500/-, in default, to further undergo six months S.I. and for the offence punishable under Section 333 of the Indian Penal Code, the appellant was ordered to undergo R.I. for five years and fine of Rs.500/-, in default, further R.I. for six months. The appellant No. 1 was also ordered to undergo one year R.I. and to pay a fine of Rs.100/-, in default, to undergo one month S.I. for the offence punishable under Section 342 of the Indian Penal Code. The appellant No. 2 was ordered to undergo three years R.I. and fine of Rs.200/-, in default, to undergo for one month S.I. for the offence punishable under Section 333 of the Indian Penal Code. Learned Special Judge was pleased to order the appellant No. 3 to undergo three years R.I. and fine of Rs.500/-, in default, to undergo six months S.I. for the offence punishable under Section 506(2) of the Indian Penal Code and for the offence punishable under Section 333 of the Indian Penal Code, the appellant No. 3 was ordered to undergo three years R.I. and fine of Rs.200/-, in default, to undergo further one month S.I. The appellant No. 4 is ordered to undergo R.I. for three years and fine of Rs.200/-, in default, to undergo further one month S.I. All the sentences shall run concurrently.

The brief facts of the prosecution case is as under:

2. The allegations levelled against the accused are that on 7.9.2003, at about 8:00 to 12:00 hours, the A.S.I. of Chatrod village was on petrolling, during that time, at about 10:30 Hrs. in the chowk of the old school and at that time Mr. Hussain Ibrahim Siddi was quarreling with one Mr. Babubhai. During that the complainant reached there and asked Mr. Babubhai why you are quarreling in public, come at the Police Station, therefore, Babubhai told that nothing such that, thereafter, the accused Hussain Ibrahim Siddi caught hold of the Uniform of the complainant and told that who is bringing me at Police Station and pushed forcefully and broken two teeth of the complainant and as he was sustained injuries and blood coming from it, Babuabhai interfered and rescued them. At the time of incident, the accused Nos. 2, 3 and 4 came there and quarreled with the complainant and the accused No. 1 and 3 threatened to kill the complainant. Therefore, the complaint C.R. No. I 65 of 2003 was registered against the appellants - accused for the offences punishable under Sections 325, 504, 506(2), 333, 342 read with 114 of the Indian Penal Code, with Bhimasar Police Station.

3. Thereafter, statements of the witnesses were recorded, panchnama was drawn and accused were arrested. Charge-sheet was filed before the learned Judicial Magistrate First Class, Rapar. Thereafter, as the case was exclusively triable by the Court of Sessions, the learned Judicial Magistrate First Class has committed the case to the Court of Sessions, which was numbered as Sessions Case No. 51 of 2004.

4. Thereafter, the charge was framed against the appellants at Exhibit 1. The appellants - accused pleaded not guilty and claimed to be tried.

5. To prove the case against the appellants, the prosecution has produced documentary evidence and also examined 13 witnesses before the trial Court.

6. Thereafter, after examining the witnesses, further statement of the appellants - accused under Section 313 of the Code of Criminal

Procedure was recorded in which the appellants - accused have denied the case of the prosecution.

7. After considering the oral as well as documentary evidence and after hearing the parties, learned Special Judge (Atrocity), Gandhidham, Dist. Kutch vide judgment and order dated 7.12.2006 held the appellants - accused guilty to the charge levelled against them and sentenced them as stated above.

8. Feeling aggrieved and dissatisfied with the impugned judgment and order of conviction and sentence passed by the learned Special Judge, the present appellants have preferred this appeal.

9. Learned advocate Ms.Sadhna Sagar for Ms. Jayshree Bhatt, learned advocate appearing on behalf of the appellants submitted that the quarrel took place between the accused No. 1 with one Babubhai and at that time, the complainant reached there and tried to use his force and power and the complainant caught hold the accused No. 1 and the complainant at that time fell down and sustained injury. Therefore, the accused No. 1 had not tried to push the complainant. But the learned Special Judge has not considered properly the real facts and convicted wrongly the appellants. The appellants No. 2 to 4 were not present at the place of incident and they were wrongly implicated in the offence.

10. Learned advocate Ms. Sadhna Sagar, submitted that the appellant No. 1 has already been released from the jail after considering his 75% undergone period. Therefore, she does not press the appeal for the appellant No. 1. But so far as the appellants No. 2 to 4 are concerned, the sentence imposed upon them is very harsh in nature and therefore, it is required to be reduced as the appellants No. 3 and 4 are the lady accused and appellant No. 2 is a very young aged person.

11. The learned APP Mr. Jani for the State submitted that the appellants are involved in the serious offence and, therefore, no lenient view is required to be considered in favour of the appellants. Later on, he submitted that if the sentence is reduced to some extent, the State has no objection.

12. I have perused the judgment and order and reasons given by the learned Judge also. After the considering the evidence, the learned Sessions Judge has rightly held the appellants guilty of the offences and sentenced the appellants. The appellants were ordered to undergo R.I. as stated above. I have considered the submission advanced by the learned advocate Ms. Sagar for the appellants. The appellant No. 1 has already been released from the jail on 1.5.2010. The jail report is produced by the learned APP, which I have perused and it is taken on record. Therefore, the question regarding sentence imposed upon the appellants No. 2 to 4 is required to be considered here. Out of the appellants No. 2 to 4, the appellants No. 3 and 4 are lady accused and the appellant No. 2 is a young person as per the submission of the learned advocate for the appellants. The State has also no objection, if the sentence is reduced imposed upon the accused. Therefore, I am of the view that if the 50% sentence is reduced then it would meet the ends of justice.

13. In view of the above observation, the Appeal is partly allowed. The judgment and order dated 7.12.2006 passed by the learned Special Judge (Atrocity) Gandhidham Kutch in Sessions Case No. 51 of 2004, is hereby modified to the extent of 1 and half years instead of 3 years imposed by the learned Special Judge. If the appellants No. 2 to 4 are on bail, they are hereby directed to surrender before the Jail Authority within four weeks from the date of this order, failing which, the concerned Court shall issue non-bailable warrant to effect the arrest of the appellants No. 2 to 4. Rest of the judgment of the learned Sessions Court shall remain unaltered. Record and proceeding be sent back to the concerned trial Court.