Gujarat High Court
Patel Babubhai Bhagvandas vs State Of Gujarat on 8 May, 2025
Author: Ilesh J. Vora
Bench: Ilesh J. Vora
NEUTRAL CITATION
R/CR.A/85/2009 JUDGMENT DATED: 08/05/2025
undefined
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 85 of 2009
With
R/CRIMINAL APPEAL NO. 307 of 2009
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE ILESH J. VORA
and
HONOURABLE MR. JUSTICE SANDEEP N. BHATT
==========================================================
Approved for Reporting Yes No
==========================================================
PATEL BABUBHAI BHAGVANDAS & ORS.
Versus
STATE OF GUJARAT
==========================================================
Appearance:
ABATED for the Appellant(s) No. 3
MR PRANAV RAVAL ADVOCATE for the Appellants No. 1,2
MS CM SHAH APP for the Respondent
==========================================================
CORAM:HONOURABLE MR. JUSTICE ILESH J. VORA
and
HONOURABLE MR. JUSTICE SANDEEP N. BHATT
Date : 08/05/2025
COMMON ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE ILESH J. VORA)
1. Since, the facts of the case and issue involved in captioned appeals are identical and arise out of the same judgment, the appeals are taken up together and are being disposed of by this common judgment.
Page 1 of 24 Uploaded by P.S. JOSHI(HC00177) on Thu May 08 2025 Downloaded on : Fri May 09 06:19:22 IST 2025NEUTRAL CITATION R/CR.A/85/2009 JUDGMENT DATED: 08/05/2025 undefined
2. The conviction appeal (Criminal Appeal No.85 of 2009) is fled by the accused herein against the judgment of conviction and order of sentence dated 31.12.2008 passed by the learned Sessions Judge, Gandhinagar in Sessions Case No.90 of 2007, whereby the accused viz. (I) Babubhai Bhagvandas, (II) Vasant Bababhai (III) Bababhai Ishwarbhai and (IV) Jashiben Babubhai came to be convicted for the ofences punishable under Sections 307, 324, 323, 504 read with Section 114 of the Indian Penal Code and they were sentenced as under:
Accused Convicti Punish Fine In default of on ment (Rs.) fne under IPC Patel S.307 RI for 3 2,000/- RI for 2 Babubhai yrs months Bhagavan das (A-1) Patel S.324 RI for 1 1,000/- RI for 1 Babubhai yr month Bhagavan das (A-1) Patel S.323 RI for 3 500/- SI for 10 Babubhai months days Bhagavan das (A-1) Patel S.504 RI for 3 500/- SI for 10 Babubhai months days Bhagavan das (A-1) Patel S.307 RI for 3 2,000/- RI for 2 Vasantbh years months ai Page 2 of 24 Uploaded by P.S. JOSHI(HC00177) on Thu May 08 2025 Downloaded on : Fri May 09 06:19:22 IST 2025 NEUTRAL CITATION R/CR.A/85/2009 JUDGMENT DATED: 08/05/2025 undefined Bababhai (A-2) Patel S.324 RI for 1 1,000/- RI for 1 Vasantbh years month ai Bababhai (A-2) Patel S.323 RI for 3 500/- SI for 10 Vasantbh months days ai Bababhai (A-2) Patel S.504 RI for 3 500/- SI for 10 Vasantbh months days ai Bababhai (A-2) Patel S.307 RI for 3 2,000/- RI for 2 Bababhai yrs months Ishwarbh ai (A-3) Patel S.324 RI for 1 1,000/- RI for 1 Bababhai yr month Ishwarbh ai (A-3) Patel S.323 RI for 3 500/- SI for 10 Bababhai months days Ishwarbh ai (A-3) Patel S.504 RI for 3 500/- SI for 10 Bababhai months days Ishwarbh ai (A3) Patel S.323 RI for 3 500/- ---
Jashiben months
Babubhai
(A4)
Page 3 of 24
Uploaded by P.S. JOSHI(HC00177) on Thu May 08 2025 Downloaded on : Fri May 09 06:19:22 IST 2025
NEUTRAL CITATION
R/CR.A/85/2009 JUDGMENT DATED: 08/05/2025
undefined
3. The appeal (Criminal Appeal No.307 of 2009) under Section 377 of the Cr.P.C. is fled by the State against the aforesaid sentence on the ground of its inadequacy.
4. Facts and circumstances giving rise to fle these appeals are as follows:
4.1 The accused Babubhai Bhagvandas and complainant PW:1 Prahalad Patel are real brother. The co-accused Patel Vasant Bababhai, Bababhai Ishwarbhai and Jashiben Babubhai also belong to the same family. The accused and the complainant party are resident of Village: Bilodara, Dist.: Gandhinagar. Prior to the incident, the dispute about the right to access from the land of the accused was going on. According to the say of PW:1 complainant, he was having right to use the boundary of the land allegedly belongs to the accused for the use of his farm as a right of way, whereas the accused had strong objection against the use of their land. The farm land of the parties are adjacent to each other. In these background facts, on 29.11.2006 at about 06:00 o'clock evening, the altercation took place between the parties on the issue of right of way which led to causing physical injuries to PW:1 and other members of his family.
According to the case of the prosecution, raising Page 4 of 24 Uploaded by P.S. JOSHI(HC00177) on Thu May 08 2025 Downloaded on : Fri May 09 06:19:22 IST 2025 NEUTRAL CITATION R/CR.A/85/2009 JUDGMENT DATED: 08/05/2025 undefined dispute of land, the accused assaulted the PW:1 with the weapon sword, pipe and stick. As per the version of PW:1, the accused Babubhai Bhagvandas caused voluntarily hurt on his head by sword, whereas the accused no.2 Vasant Bababhai also inficted a sword blow on his head and accused no.3 Bababhai Ishwarbhai gave a blow on his wrist with iron pipe. It is further case of the prosecution that due to hue and cry, the family members i.e. daughter and wife viz. PW:5 Manishaben Patel and PW:6 Manguben Patel and others came to his rescue and they were also assaulted by the accused.
4.2 The injured PW:1 Prahalad Patel was taken to the Civil Hospital, Gandhinagar where he was treated by PW:8 Dr. Dipen Patel and thereafter, for further examination, he was referred to the Civil Hospital, Ahmedabad. The PW:1 lodged an FIR with the Gandhinagar Police against the accused for causing voluntary hurt to him as well as the witnesses and later on, Section 307 - attempt to murder was invoked by the police agency.
4.3 PW:14 PSI Shankar Nanji Pandor had been entrusted the investigation of the case and during the course of the investigation, he took visit the place of the incident and by drawing the panchnama, collected the Page 5 of 24 Uploaded by P.S. JOSHI(HC00177) on Thu May 08 2025 Downloaded on : Fri May 09 06:19:22 IST 2025 NEUTRAL CITATION R/CR.A/85/2009 JUDGMENT DATED: 08/05/2025 undefined necessary samples for chemical analysis. The I.O. then recorded the statements of eyewitnesses, obtained the medical case papers, seized and recovered the weapons allegedly used by the accused, sent the muddamal articles to FSL for chemical analysis. Accordingly, the accused were chargesheeted for the ofences, as referred above.
5. After due framing of the charge and upon accused pleaded not guilty, the trial commenced before the Sessions Court, Gandhinagar.
6. In the course of trial, the prosecution examined in all 14 witnesses and exhibited 14 documents.
Oral evidence PW 1 - Exh.32 Prahladbhai Bhagwandas Patel, Complainant PW 2 - Exh.34 Bharatbhai Vishnubhai Patel, panch witness PW 3 - Exh.41 Dilawarsinh Deepsinh Raol, panch witness PW 4 - Exh.46 Revabhai Vitthalbhai Prajapati, panch witness PW 5 - Exh.51 Manishabhen Prahaladbhai Patel (daughter of complainant) PW 6 - Exh.54 Manguben Prahaladbhai Patel (wife of complainant) PW 7 - Exh.55 Kiritji Nathalal Patel, panch witness PW 8 - Exh.58 Dr. Dipenbhai Manibhai Patel, Medical Ofcer PW 9 - Exh.61 Ashwin Kumar Chimanlal Bhavsar, Circle Ofcer PW 10-Exh.65 Dr. Nitinbhai Janakarai Dave, Medical Ofcer PW 11-Exh.68 Parthiji Kantji Dabi PW 12-Exh.71 Salimbhai Rasoolbhai Khokar, SSO, Mansa Police Station Page 6 of 24 Uploaded by P.S. JOSHI(HC00177) on Thu May 08 2025 Downloaded on : Fri May 09 06:19:22 IST 2025 NEUTRAL CITATION R/CR.A/85/2009 JUDGMENT DATED: 08/05/2025 undefined PW 13-Exh.73 Ishwarbhai Varvabhai Rabari, PSO, Mansa Police Station PW 14-Exh.77 Shankarbhai Nanjibhai Pandor, Investigationg Ofcer Documentary evidence Exh.33 FIR Complaint Exh.31 Panchnama of Scene of Ofence Exh.42 Panchnama of weapons in possession Exh.35 Panchnama of possession of clothes of complainant Exh.45 Panchnama of physical examination of body of accused Vasanbhai, Bababhai and Babubhai. Exh.47 Panchnama of physical examination of body of accused Bababhai Exh.48 Panchnama of physical examination of body of Jasiben Exh.60 Medical Certifcate of Complainant Exh.59 Police List Exh.67 Complainant Treatment Certifcate from Ahmedabad Civil Hospital Exh. 78 Reservation Note Exh.79 Receipt List, Letter of FSL dated 29.12.06 Exh.80 FSL Segregation Report Exh.82 FSL Serological Report
7. After closure of the prosecution evidence, the appellants were questioned under Section 313 of the Cr.P.C. to which, they stated that after the partition of the land, the complainant had to give them agreed money and parcel of land, but somehow he did not have complied the agreed terms and therefore, in order to escape from the liabilities, the false case due to the land dispute was being fled against them.
Page 7 of 24 Uploaded by P.S. JOSHI(HC00177) on Thu May 08 2025 Downloaded on : Fri May 09 06:19:22 IST 2025NEUTRAL CITATION R/CR.A/85/2009 JUDGMENT DATED: 08/05/2025 undefined
8. Though opportunity was extended, no evidence was tendered from the side of the appellants accused.
9. The learned Sessions Judge, relying principally on the depositions of the complainant PW:1, PW:5 Manish Patel and PW:6 Manguben Patel, found the appellants guilty for the charge of attempt of murder and causing voluntary hurt and accordingly, they were convicted and sentenced, as enumerated above.
10. Challenging the said conviction and sentence, the appellants have fled the criminal appeal, whereas the State has fled enhancement appeal against the quantum of sentence.
11. We have heard learned counsel Mr. Pranav Raval, Ms. C.M. Shah, learned APP for the respective parties.
12. Before we proceed to examine the legality and correctness of the judgment of the conviction and order of conviction, we may take a note of passing away of the accused Bababhai Ishwarbhai (original accused no.3) and appeal against him stands disposed of as abated.
13. Mr. Pranav Raval, learned counsel appearing for and on behalf of the appellants, submitted that the injured Page 8 of 24 Uploaded by P.S. JOSHI(HC00177) on Thu May 08 2025 Downloaded on : Fri May 09 06:19:22 IST 2025 NEUTRAL CITATION R/CR.A/85/2009 JUDGMENT DATED: 08/05/2025 undefined PW:1 sustained simple injuries on his head and as per the opinion of the doctor, the injuries were simple in nature. In addition to that, he submitted that the parties are related to each other and their respective felds are also situated in the same boundary and as per the case of the prosecution, there was a boundary dispute on the aspect of right of way and therefore, the altercation took place between the parties which led to a physical assault to PW:1 and therefore, there was no intention on the part of the accused appellants to cause a fatal injuries nor knowledge would be attributable on their part that the act would have caused the death. In nutshell, he submitted that in absence of the requisite intention and knowledge on the part of the accused, there can be no ofence of attempt to murder and thus, the essential ingredients as required to prove the charge for attempt to murder are missing in this case and thus, the conviction under Section 307 of the IPC is not sustainable in law. So far as conviction under Sections 324, 323, 504 of IPC are concerned, he submitted that the accused have a clean antecedents and this is their frst ofence and the incident occurred on the spur of moment, he prayed that either conviction is reduced to the term already undergone or the Court may grant the beneft of probation.
Page 9 of 24 Uploaded by P.S. JOSHI(HC00177) on Thu May 08 2025 Downloaded on : Fri May 09 06:19:22 IST 2025NEUTRAL CITATION R/CR.A/85/2009 JUDGMENT DATED: 08/05/2025 undefined
14. On the other hand, opposing the contentions, Ms.C.M. Shah, learned APP would urge that the accused had gone to the feld of PW:1 and assaulted him with the weapon sword, scythe and iron pipe and manner in which, the assault was done at the vital part of the body, which can be inferred that there was intention on the part of the accused and knowledge of the alleged act of assault and therefore, the essential ingredients to prove the charge of attempt to murder have been established in the facts of the present case. So far as reduction of sentence and alternate prayer of extending the benefts of probation is concerned, the learned APP strongly oppose the contentions and submitted that this is not a ft case to extend the beneft of probation.
15. Before dealing with the rival contentions of the parties, it would be useful to analysis the evidence of relevant witnesses:
(1) PW-1 - Prahlad Patel, being a complainant as well as victim, has stated on oath that, on 29.11.2006, when he was sitting on cot at his farm, the accused appellant came with deadly weapons and assaulted him on his head and also caused injuries to his wife PW-6 and daughter PW-5.Page 10 of 24 Uploaded by P.S. JOSHI(HC00177) on Thu May 08 2025 Downloaded on : Fri May 09 06:19:22 IST 2025
NEUTRAL CITATION R/CR.A/85/2009 JUDGMENT DATED: 08/05/2025 undefined (2) PW-5 Manisha Prahlad Patel, being eye witness of the incident, has stated that on the day of incident, the accused assaulted his father with deadly weapon and thereafter, when she and her mother intervened, they had been assaulted by accused Babu Patel.
(3) PW-6 Manguben Patel, being eye-witness of the incident, has stated that, on the day of incident, raising dispute of right of way, the accused assaulted her husband with the deadly weapon and then, she had been given a blow with stick by accused Jashiben, wife of the principal accused.
(4) PW-8 Dr. Dipen Patel, being a Medical Ofcer, Government Hospital, Gandhinagar, has stated that he had examined the injured Prahlad Patel and after examination, he noticed the following injuries :
(i) CLW on right parietal region (6 cm X 0.5 cm X 0.5 cm.)
(ii) CLW on parietal region (3 cm X0.5 cm X0.5 cm)
(iii) Transverse CLW on forehead and abrasion on right knee.
According to say of the doctor, the patient complaint him about giddiness and for safety he had been transferred to Civil Hospital, Ahmedabad. The Page 11 of 24 Uploaded by P.S. JOSHI(HC00177) on Thu May 08 2025 Downloaded on : Fri May 09 06:19:22 IST 2025 NEUTRAL CITATION R/CR.A/85/2009 JUDGMENT DATED: 08/05/2025 undefined admission period of the patient was 4 days and according to his opinion, the injuries were not grievous in nature.
(5) PW-10 Dr. Nitin Dave, being a Medical Ofcer, Civil Hospital, Ahmedabad, had produced the treatment case papers of PW-1 Prahlad Patel, as treating doctor, Hitesh Patel was not available, as he settled at Australia. According to him, the injuries were simple in nature and not life threatening. The CT Scan report shows that there was linear contusion seen in left frontal log.
(6) PW-11 Parthiji Dabhi, being eye-witness, did not support the case of the prosecution.
(7) PW:14 PSI Shankar Nanji Pandor, being an Investigating Ofcer of the case, has stated that after receiving the message, he rushed to the Civil Hospital, Gandhinagar, where he recorded the complaint of PW- 1 and after registration of the ofence, he had been entrusted the investigation. The witness has stated that, during the course of investigation, he took visit the place of occurrence and collected the samples from the place for FSL purpose and then, recorded the statements of the witnesses, arrested the accused, seized the weapon used in the ofence, obtained the Page 12 of 24 Uploaded by P.S. JOSHI(HC00177) on Thu May 08 2025 Downloaded on : Fri May 09 06:19:22 IST 2025 NEUTRAL CITATION R/CR.A/85/2009 JUDGMENT DATED: 08/05/2025 undefined medical papers, sent the muddamal article to the FSL, and fnally, he fled the chargesheet against the accused.
16. The appellants accused have been convicted under Section 307 of the IPC. It is argued that, the prosecution miserably failed to prove the charge of attempt to murder and the fndings of the trial Court, are not based on the evidence on record. We have perused the oral as well as documentary evidence on this aspect. The medical evidence shows that the injuries were not grievous in nature and doctor has not opined that the injuries sustained may likely to cause death. In order to appreciate the contention, it is relevant to refer the provision of Section 307, which reads as under:
"307.Attempt to murder.--Whoever does any act with such intention or knowledge, and under such circumstances that, if he by that act caused death, he would be guilty of murder, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fnee and if hurt is caused to any person by such act, the ofender shall be liable either to imprisonment for life, or to such punishment as is hereinbefore mentioned. Attempts by life convicts.--When any person ofending under this section is under sentence of imprisonment for life, Page 13 of 24 Uploaded by P.S. JOSHI(HC00177) on Thu May 08 2025 Downloaded on : Fri May 09 06:19:22 IST 2025 NEUTRAL CITATION R/CR.A/85/2009 JUDGMENT DATED: 08/05/2025 undefined he may, if hurt is caused, be punished with death. "
17. In order to prove the charge of attempt to murder, the prosecution, is obliged to prove the essential ingredients of the ofence, which are :
(i) that the death of a human being was attempted:
(ii) that such death was attempted to be caused by, or in consequence of the act of the accusede and
(iii) that such act was done with the intention of causing deathe or that it was done with the intention of causing such bodily injury as:
(a) the accused knew to be likely to cause deathe or
(b) was sufcient in the ordinary course of nature to cause death, or that the accused attempted to cause death by doing an act known to him to be so imminently dangerous that it must in all probability cause (a) death, or (b) such bodily injury as is likely to cause death, the accused having no excuse for incurring the risk of causing such death or injury. The frst part makes any act committed with the intention or knowledge that it would amount to murder if the act caused death punishable with imprisonment up to ten years. The second part makes such an act punishable with imprisonment for life Page 14 of 24 Uploaded by P.S. JOSHI(HC00177) on Thu May 08 2025 Downloaded on : Fri May 09 06:19:22 IST 2025 NEUTRAL CITATION R/CR.A/85/2009 JUDGMENT DATED: 08/05/2025 undefined if hurt is caused thereby. Thus even if the act does not cause any injury it is punishable with imprisonment up to 10 years. If it does cause an injury and therefore hurt, it is punishable with imprisonment for life."
A bare reading of the provision would provide that to justify the conviction under Section 307, it is necessary to prove that the act was done with such intention or knowledge and under such circumstances that, if he or she by that act cause death. In the case of Hari Singh Vs. Sukhbir Singh (1988 (4) SCC 551), the Supreme Court held that while examining whether a case of commission of ofence under Section 307 is made out, the Court is required to see whether the act, irrespective of its result, was done with the intention or knowledge or under circumstances mentioned in the section. It is also settled that, the proof of grievous or life threatening hurt is not sine-qua-none. The intention of the accused can be gathered from the actual injury, nature of the weapon used, manner in which the incident took place, motive for the crime, severity of the blow, the part of body where the injuries inficted. In addition to that, for the conviction under Section 307, more important has been given to mens-rea.
Page 15 of 24 Uploaded by P.S. JOSHI(HC00177) on Thu May 08 2025 Downloaded on : Fri May 09 06:19:22 IST 2025NEUTRAL CITATION R/CR.A/85/2009 JUDGMENT DATED: 08/05/2025 undefined
18. In AIR 1982 SC 2013, Kundan Singh Vs. State of Punjab, the Hon'ble Apex Court has observed as under:- "We are of the view that having regard to the facts and circumstances of the present case and particularly in view of the fact that P.W. 6 and P.W. 7 were in the courtyard of their house when the appellant fred gun shots and he could not, therefore, have intended to injure them, the conviction of the appellant under Section 307, I.P.C. was not justifed. We think that the conviction of the appellant could be maintained only under Section 324 of the I.P.C. since P.W. 6 and P.W. 7 received simple injuries. We accordingly allow the appeal and alter the conviction of the appellant to one under Section 324 of the I.P.C. for causing simple injuries to P.W. 6 and P.W. 7 and since the appellant has already sufered imprisonment for about 16 months, we direct that the sentence imposed on the appellant be reduced to that already undergone by him and that he may be set at liberty forthwith.
19. The Apex Court in AIR 1996 SC 3236, Merambhai Punjabhai Khachar and others vs. State of Gujarat, wherein in an attempt to commit murder by fre-arm, victim has sufered a pallet injury, the Apex Court held that Section 307 I.P.C. cannot be held to Page 16 of 24 Uploaded by P.S. JOSHI(HC00177) on Thu May 08 2025 Downloaded on : Fri May 09 06:19:22 IST 2025 NEUTRAL CITATION R/CR.A/85/2009 JUDGMENT DATED: 08/05/2025 undefined have been satisfed and the conviction was altered to Section 324 of IPC.
20. In Ramesh vs. State of U.P., AIR 1992 SC 664, wherein the injury was found on the back of the injured. Accused was tried along with two other was convicted under Section 307/34 I.P.C. and sentenced to undergo rigorous imprisonment for four years, while the 9 two others were acquitted. The Apex Court altered from section 307 of IPC into Section 324 of I.P.C. and sentence was reduced to the period already undergone with fne of Rs. 3000/-, which was to be paid to the complainant as compensation
21. The facts of this case are to be considered on the touchstone of the law, which has been laid down by the Apex Court. In the case on hand, the injuries were simple in nature and no fracture found in the skull and as per the medical opinion, the injuries were not life threatening. It is relevant to note that the accused did not have infict repeated blows on the head of PW-1. The motive behind the incident was the land dispute, as after the partitioned, the complainant was not ready to give up his right of access and further claim the said right from the land of the accused. The parties belonged to one family. In such circumstances, in our opinion, the ingredients of Section 307 in the Page 17 of 24 Uploaded by P.S. JOSHI(HC00177) on Thu May 08 2025 Downloaded on : Fri May 09 06:19:22 IST 2025 NEUTRAL CITATION R/CR.A/85/2009 JUDGMENT DATED: 08/05/2025 undefined facts of the present case are not satisfed. Although the injuries were found on the head, but that fact alone is not sufcient to establish that the injuries are dangerous to life. Thus, the prosecution evidence accepted as it is, the case against the appellants, does not travel beyond Section 324 of the IPC, as the injuries had been caused by the dangerous weapon like swards and scythe.
22. In view of the discussions, the conviction under Section 307 of the appellants accused i.e. A-1 Babubhai Bhagwandas, A-2 Patel Vasantbhai is not sustainable in law. It is evident that, the accused A1 and A2 came in the feld of PW-1. The evidence of injured witness PW-1 on the aspect of causing injuries by the accused does not found untruthful or non- reliable. The medical evidence further corroborate to his evidence. Thus, the prosecution able to prove the charge of causing voluntary heart by deadly weapon against A1 and A2. So far as, causing injury to the witnesses PW-5 Manisha Patel and PW-6 Manguben Patel is concerned, the prosecution failed to prove the sustaining of the injuries at the hands of the accused, as there is no medical evidence to prove the factum of actual injury. In such circumstances, the testimony of PW-5 and PW6 causing injury to them by the accused is not believable and trustworthy and because of Page 18 of 24 Uploaded by P.S. JOSHI(HC00177) on Thu May 08 2025 Downloaded on : Fri May 09 06:19:22 IST 2025 NEUTRAL CITATION R/CR.A/85/2009 JUDGMENT DATED: 08/05/2025 undefined assault on PW-1, they stating about the facts of the injury to implicate the accused. Thus, the prosecution is failed to prove the charge under Section 323 against the appellants accused and the conviction under Section 323 read with Section 114 of the IPC is not sustainable in law. So far as charge of Section 504 is concerned, there is no evidence to prove the charge of intentional insult with intent to provoke breach of peace. The witnesses in their respective testimony have not stated that how the accused insulted PW-1 and his family members and what kind of provocative words being spoken by them. In such circumstances, the prosecution failed to prove the charge against the accused under Section 504 of the IPC.
23. The counsel appearing for the accused raised the contention that, the incident took place in the year 2006 and the same arose in a spur of moment without any premeditation and it was the PW-1, who had encroached upon the land of the accused and therefore, the sentence may be reduced to the term already undergone or the accused may be released on probation.
24. It is no doubt true that, the parties are related to each other and belong to one family. The incident took place 19 years ago and there is no further criminal Page 19 of 24 Uploaded by P.S. JOSHI(HC00177) on Thu May 08 2025 Downloaded on : Fri May 09 06:19:22 IST 2025 NEUTRAL CITATION R/CR.A/85/2009 JUDGMENT DATED: 08/05/2025 undefined antecedents against the appellants and during the pendency of present appeal proceedings, no any incident being reported against the accused. In such circumstances, we are of the considered view that, when there is no minimum sentence prescribed under Section 324 of the IPC, it would be in the interest of justice, if the beneft of probation is extended to the accused appellant A1 and A2 as provided under Section 360 of the Cr.P.C., which reads as under:
Section 360 of Cr.P.C : Order to release on probation of good conduct or after admonition:
(1) When any person not under twenty-one years of age is convicted of an ofence punishable with fne only or with imprisonment for a term of seven years, or less, or when any person under twenty-one years of age or any woman is convicted of an ofence not punishable with death or imprisonment for life, and no previous conviction is proved against the ofender, if it appears to the Court before which he is convicted, regard being had to the age, character or antecedents of the ofender, and to the circumstances in which the ofence was committed, that it is expedient that the ofender should be released on probation of good conduct, the Court may, instead of sentencing him at once to any punishment, direct that he be released on his entering into a bond, with or without sureties, to appear and receive sentence when called upon during such period (not exceeding three years) as the Court may direct and in the meantime to keep Page 20 of 24 Uploaded by P.S. JOSHI(HC00177) on Thu May 08 2025 Downloaded on : Fri May 09 06:19:22 IST 2025 NEUTRAL CITATION R/CR.A/85/2009 JUDGMENT DATED: 08/05/2025 undefined the peace and be of good behavioure Provided that where any frst ofender is convicted by a Magistrate of the second class not specially empowered by the High Court, and the Magistrate is of opinion that the powers conferred by this section should be exercised, he shall record his opinion to that efect, and submit the proceedings to a Magistrate of the frst class forwarding the accused to or taking bail for his appearance before, such Magistrate, who shall dispose of the case in the manner provided by Sub-
Section (2).
(2) Where proceedings are submitted to a Magistrate of the frst class as provided by Sub-Section (1), such Magistrate may thereupon pass such sentence or make such order as he might have passed or made if the case had originally been heard by him, and, if he thinks further inquiry or additional evidence on any point to be necessary, he may make such inquiry or take such evidence himself or direct such inquiry or evidence to be made or taken.
(3) In any case in which a person is convicted of theft, theft in a building, dishonest in is appropriation, cheating or any ofence under the Indian Penal Code (45 of 1860) punishable with not more than two years' imprisonment or any ofence punishable with fne only and no previous conviction is proved against him, the Court before which he is so convicted may, if it thinks ft, having regard to the age, character, antecedents or physical or mental condition of the ofender and to the trivial nature of the ofence or any extenuating circumstances Page 21 of 24 Uploaded by P.S. JOSHI(HC00177) on Thu May 08 2025 Downloaded on : Fri May 09 06:19:22 IST 2025 NEUTRAL CITATION R/CR.A/85/2009 JUDGMENT DATED: 08/05/2025 undefined under which the ofence was committed, instead of sentencing him to any punishment, release him after due admonition.
(4) An order under this section may be made by any Appellate Court or by the High Court or Court of Session when exercising its powers of revision.
(5) When an order has been made under this section in respect of any ofender, the High Court or Court of Session may, on appeal when there is a right of appeal to such Court, or when exercising its powers of revision, set aside such order, and in lieu thereof pass sentence on such ofender according to lawe Provided that the High Court or Court of Session shall not under this Sub-Section infict a greater punishment than might have been inficted by the Court by which the ofender was convicted.
(6) The provisions of sections 121, 124 and 373 shall, so far as may be apply in the case of sureties ofered in pursuance of the provisions of this section.
(7) The Court, before directing the release of an ofender under Sub-Section (1) shall be satisfed that an ofender or his surety (if any) has a fxed place of abode or regular occupation in the place for which the Court acts or in which the ofender is likely to live during the period named for the observance of the conditions.
(8) If the Court which convicted the ofender, or a Court which could have dealt with the Page 22 of 24 Uploaded by P.S. JOSHI(HC00177) on Thu May 08 2025 Downloaded on : Fri May 09 06:19:22 IST 2025 NEUTRAL CITATION R/CR.A/85/2009 JUDGMENT DATED: 08/05/2025 undefined ofender in respect of his original ofence, is satisfed that the ofender has failed to observe any of the conditions of his recognizance, it may issue a warrant for his apprehension.
(9) An ofender, when apprehended on any such warrant, shall be brought forthwith before the Court issuing the warrant, and such Court may either remand him in custody until the case is heard or admit him to bail with a sufcient surety conditioned on his appearing for sentence and such Court may after hearing the case, pass sentence.
(10) Nothing in this section shall afect the provisions of the Probation of Ofenders Act, 1958 (20 of 1958), or the Children Act, 1960 (60 of 1960), or any other law for the time being in force for the treatment, training or rehabilitation of youthful ofenders."
25. For the reasons aforementioned and having regard to the peculiar facts and circumstances of the present case and bearing in mind the statutory provision, as referred above and law propounded by the Supreme Court, the appeal is partly allowed.
The conviction and sentence of the appellants under Section 307, 323, 506, read with Section 114 is hereby set aside.
Page 23 of 24 Uploaded by P.S. JOSHI(HC00177) on Thu May 08 2025 Downloaded on : Fri May 09 06:19:22 IST 2025NEUTRAL CITATION R/CR.A/85/2009 JUDGMENT DATED: 08/05/2025 undefined The conviction of accused A1 and A2 under Section 324 is maintained and on the point of sentence, we direct that instead of sentencing the accused to imprisonment, they shall be released on probation provided they execute a personal bond of good conduct in sum of Rs.10,000/- each with one surety each to the satisfaction of the trial Court to keep peace and be of good behaviour for a period of 1 year. The said bonds are to be flled by the accused within a period of 3 months from the date of this judgment. With the above modifcation, present appeal is partly allowed.
26. In view of the disposal of the conviction appeal, the enhancement appeal fled by the State does not survive and is disposed of accordingly.
(ILESH J. VORA,J) (SANDEEP N. BHATT,J) P.S. JOSHI Page 24 of 24 Uploaded by P.S. JOSHI(HC00177) on Thu May 08 2025 Downloaded on : Fri May 09 06:19:22 IST 2025