Gujarat High Court

Manubhai Dahyabhai Vaghela vs State Of Gujarat on 5 February, 2025

Author: Ilesh J. Vora

Bench: Ilesh J. Vora

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                            R/CR.A/1789/2009                                  JUDGMENT DATED: 05/02/2025

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                                     IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                                                R/CRIMINAL APPEAL NO. 1789 of 2009
                                                              With

                                                R/CRIMINAL APPEAL NO. 2413 of 2009
                                                              With

                                                R/CRIMINAL APPEAL NO. 2414 of 2009


                       FOR APPROVAL AND SIGNATURE:


                       HONOURABLE MR. JUSTICE ILESH J. VORA                     Sd/-
                       and
                       HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK Sd/-
                       ==========================================================
                                    Approved for Reporting                   Yes           No
                       ==========================================================
                                               MANUBHAI DAHYABHAI VAGHELA & ORS.
                                                            Versus
                                                      STATE OF GUJARAT
                       ==========================================================
                       Appearance:
                       MR JAYPRAKASH UMOT(3581) for the Appellant(s) No. 1,2,3
                       MR JAY MEHTA ADDL. PUBLIC PROSECUTOR for the
                       Opponent(s)/Respondent(s) No. 1
                       ==========================================================

                         CORAM:HONOURABLE MR. JUSTICE ILESH J. VORA
                               and
                               HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK

                                                         Date : 05/02/2025

                                                     COMMON ORAL JUDGMENT

(PER : HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK)

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1. All these three Criminal Appeals arising from one judgment

and order dated 15.09.2009 passed by the 2nd Additional

Sessions Judge, Nadiad (hereinafter referred to as the "trial

Court") rendered in Sessions Case No. 37 of 2009 whereby

the accused persons were convicted for the offence

punishable under Sections 436 read with Section 114 of the

Indian Penal Code ("IPC" for short) and ordered to undergo

rigorous imprisonment ("RI" for short) for two years and also

imposed a fine of Rs.500/- each and in default RI for two

months. So far as the offence under Section 326, 337, 323,

504 r/w Section 114 of IPC is concerned, all the accused

persons were acquitted. Against which, the State has

preferred an Acquittal Appeal being Criminal Appeal No. 2414

2009 as well as Enhancement Appeal being Criminal Appeal

No 2413 of 2009 and the accused persons have preferred

Criminal Appeal No. 1789 of 2009 whereby the State and

accused persons have challenged the impugned judgment and

order of conviction and sentence passed by trial Court.

2. The Appeal being Criminal Appeal No. 2413 of 2009 came

to be admitted by this Court vide order dated 21.4.2010 and it

was ordered to be heard along with Criminal Appeal No. 1789

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of 2009 and Criminal Appeal 2414 of 2009.

3. The brief facts giving rise to present Appeals in nutshell,

are as under:-

3.1 The complainant Laljibhai Shankarbhai Vaghela, residing

at Chaklasi, Tabe Laxmipura, registered his complaint with

Chaklasi Police Station against the accused persons, for the

offence punishable under Sections 326, 337, 323, 504, 436

and 114 of IPC stating therein that on 7.06.2008 at about 4:30

p.m. the complainant returned to his home from Chaklasi, and

he was passing in front of house of Taraben Pratapbhai

Vaghela his Bhabhi. At that time, the accused no.1 Manubhai

Dahyabhai, accused no.2 Hasmukh Manubhai and accused

no.3 Raysingh Hathibhai came there, by keeping ago grudge

about filling water. All the accused threw the stones on

complainant and on seeing that one Bhagvanbhai Desaibhai

Vaghela came there. The accused also throw the stone on him,

so he received stone injuries on his right leg.

3.2 Thereafter, all the accused also set on fire to the house of

Taraben. Thereafter, the complainant and his Bhabhi went to

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the Police Station for lodging complaint against the accused

persons and on the way, accused no.4 Ambalal Dahyabhai and

accused no.5 Ashvinbhai Ambalal Vaghela met them and

threatened them not to lodge any complaint against them and

also used filthy language and abuses and inflicted stick blows

on head of Taraben and because of the said blow she became

unconscious and fell down on the floor. They also inflicted

stick blows on left hand of complainant. On hearing the shout

of complainant and Taraben, Mathurbhai Mangalbhai Vaghela

came there, and rescued complainant and Taraben from

further assault of the accused persons. Thereafter, the

complainant and Taraben were taken to the Chaklasi Hospital,

and then Taraben admitted to the Civil Hospital Nadiad for

further treatment.

3.3 Thereafter, on the basis of FIR, the jurisdictional police

machinery put in to motion and on completion of investigation

the chargesheet was filed before the Court of learned Judicial

Magistrate First Class, Nadiad. The said case was committed

to the Court of Sessions and as per the provisions of 209 of

Criminal Procedure Code, on completion of the formalities of

committal, the case was registered as Sessions Case No.37 of

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2009. Thereafter, charge was framed against accused persons

for the offence punishable under Sections 326, 337, 323, 504,

436 and 114 of Indian Penal Code. The accused persons

pleaded not guilty to the charges and claimed to be tried. The

prosecution has led evidence and has examined 12 witnesses

as well as produced 12 documentary evidences on the record

of the case.

3.4 At the conclusion of the trial, trial Court passed judgment

and order dated 15.09.2009 in Sessions Case No. 37 of 2009,

whereby the accused persons were convicted for the offence

punishable under Sections 436 r/w Section 114 of the IPC and

ordered to undergo RI for two years and also imposed a fine of

Rs.500/- each and in default RI for two months. So far as the

offence under Section 326, 337, 323, 504 r/w Section 114 of

IPC is concerned, all the accused persons were acquitted.

3.5 Being aggrieved and dissatisfied with the impugned

judgment and order of conviction and sentence the appellants

accused and State of Gujarat have preferred these three

Criminal Appeals

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4. This Court vide order dated 7.10.2009 passed in Criminal

Misc. Application No.11662 of 2009 in Criminal Appeal

No.1789 of 2009 enlarged the accused persons on bail

pending hearing and till final disposal of the conviction

appeal. The order dated 7.10.2009 passed in Criminal Misc.

Application No.11662 of 2009 in Criminal Appeal No.1789 of

2009 reads as under:-

"1. Heard learned advocate for the applicants, Mr.Jayaprakash Umot.

2. Rule. Learned Additional Public Prosecutor, Mr.K.V.Pandya for the respondent-State waives service of rule.

3. The applicants have been convicted for the offence punishable under Sec.436 read with Sec.114 of IPC and sentenced them to suffer RI for two years with fine of Rs.500/-, in default, to suffer further two months simple imprisonment. Looking to the nature of offence and the sentence awarded, the application deserves to be allowed.

4. This application is accordingly allowed. Pending hearing and final disposal of appeal, the applicants are ordered to be released on same bail with fresh bond. Rule is made absolute. Direct service is permitted."

5. Heard learned advocates appearing for the respective

parties. With consent of the parties, all the appeals are taken

up for final disposal today.

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6. Learned advocate Mr. Jayprakash Umot appearing on

behalf of the convict original accused persons has submitted

that the offence was committed in hit of moment and parties

are from the same community and residing in same vicinity

and after persuasion of their community leaders and the

elders, ultimately the parties have settled the dispute outside

the Court. In this regard, he has also produced Affidavits of

Taraben Pratapbhai Vaghela as well as Laljibhai Shakarbhai

Veghela dated 04.02.2025, which are taken on record. The

said affidavits read as under:-

AFFIDAVIT ON BEHALF OF THE VICTIM

I, Taraben Pratapbhai Vaghela, Wife of Pratapbhai Gotabhai Vaghela, aged about 43 years, Occupation:

Agriculturist, Residing at Village: Laxmipura, Tabe Chaklasi, Taluka: Nadiad, District: Kheda, do hereby on solemn affirmation state as under:-

1. That, my brother-in-law namely Laljibhai Shankarbhai Vaghela (PW-5) has filed an F.I.R. being I-C.R. No.88 of 2008 registered with Chaklasi Police Station, District: Kheda for the offences punishable under sections 436, 324, 337, 323, 504 and 114 of the Indian Penal Code, 1860 against the present appellants and two co-accused persons. That, subsequently, the case was numbered as Sessions Case No.37 of 2009 and vide judgement and order dated 15/09/2009 the Learned Second Addl. Sessions Judge, Nadiad was pleased to convict the present appellants for the offence punishable under section 436 of the Indian Penal Code, 1860 read with section 114 of the Indian Penal Code, 1860 for rigorous imprisonment for two years and fine of Rs.500 and in default of payment of fine, to suffer rigorous imprisonment

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for two months. That, Learned Second Addl. Sessions Judge, Nadiad was pleased to acquit the present appellants and two co-accused for the offences punishable under section 326, 337, 323, 504 of the Indian Penal Code, 1860 read with section 114 of the Indian Penal Code, 1860. That, being aggrieved and dissatisfied with the impugned judgement and order dated 15/09/2009 the appellants have preferred the present appeal before this Hon'ble Court.

2. It is the case of the prosecution that on 07/06/2008 at about 4.30 PM when the complainant/PW-5 was returning to his home, he found that the present appellants were pelting stones on PW-7 Taraben Pratapbhai Vaghela (present deponent) regarding earlier quarrel took place while filling water. It is the further case of the prosecution that the complainant along with PW-7 Taraben Pratapbhai Vaghela (present deponent) came outside and at that time the present appellants have set ablaze kachha roof (Chhaparu/Addalu) of PW-7 (present deponent) which was erected/constructed for keeping the crop. Infact, the kachha roof was erected adjacent to my house which was used for storing/keeping the crop only and not for residence. The deponent further submits that the appellants and the complainant and victim are near relative and resident of same village and as the dispute is personal in nature and because of the intervention of the elderly people of the community, settlement has arrived at between the parties. That, the date of incident is 07/06/2008 and since then the parties are residing peacefully and happily in the same village and till date no untoward incident has taken place.

3. In the facts and circumstances as narrated above, I at my free will, wish and desire stating on the oath that as the dispute between both the sides has been amicably settled.

Therefore, the deponent/complainant prays this Hon'ble Court to quash and set aside the impugned judgement and order dated 15/09/2009 passed by the learned Second Addl. Sessions Judge, Nadiad in Sessions Case No.37 of 2009.

I solemnly affirm that what is stated in paras 1 to 3 is true to my own knowledge and to the best of my information and belief and I believe the same to be true.

AFFIDAVIT ON BEHALF OF ORIGINAL COMPLAINANT

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I, Laljibhai Shankarbhai Vaghela, Son of Shankarbhai Vaghela, - aged about 47 years, Occupation: Agriculturist, Residing at Village: Laxmipura, Tabe Chaklasi, Taluka:

Nadiad, District: Kheda, do hereby on solemn affirmation state as under:-

1. That, I have filed an F.I.R. being I-C.R. No.88 of 2008 registered with Chaklasi Police Station, District: Kheda for the offences punishable under sections 436, 324, 337, 323, 504 and 114 of the Indian Penal Code, 1860 against the present appellants and two co-accused persons. That, subsequently, the case was numbered as Sessions Case No.37 of 2009 and vide judgement and order dated 15/09/2009 the Learned Second Addl. Sessions Judge, Nadiad was pleased to convict the present appellants for the offence punishable under section 436 of the Indian Penal Code, 1860 read with section 114 of the Indian Penal Code, 1860 for rigorous imprisonment for two years and fine of Rs.500 and in default of payment of fine, to suffer rigorous imprisonment for two months. That, Learned Addl. Sessions Judge, Nadiad was pleased to acquit the present appellants and two co-

accused for the offences punishable under section 326, 337, 323, 504 of the Indian Penal Code, 1860 read with section 114 of the Indian Penal Code, 1860. That, being aggrieved and dissatisfied with the impugned judgement and order dated 15/09/2009 the appellants have preferred the present appeal before this Hon'ble Court.

2. It is the case of the prosecution that on 07/06/2008 at about 4.30 PM when the present deponent/complainant was returning to his home, he found that the present appellants were pelting stones on PW-7 Taraben Pratapbhai Vaghela regarding earlier quarrel took place while filling water. It is the further case of the prosecution that the complainant along with PW-7 Taraben Pratapbhai Vaghela came outside and at that time the present appellants have set ablaze kachha roof (Chhaparu/Addalu) of PW-7 which was erected/constructed for keeping the crop. Infact, the kachha roof was erected adjacent to the house of PW-7 Taraben Pratapbhai Vaghela which was used for storing/keeping the crop only and not for residence. The deponent further submits that the appellants and the deponent/complainant and victim are near relative and resident of same village and as the dispute is personal in nature and because of the intervention of the elderly people of the community, settlement has arrived at between the parties. That, the date

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of incident is 07/06/2008 and since then the parties residing peacefully and happily in the same village and till date no untoward incident has taken place.

3. In the facts and circumstances as narrated above, I at my free will, wish and desire stating on the oath that as the dispute between both the sides has been amicably settled. Therefore, the deponent/complainant prays this Hon'ble Court to quash and set aside the impugned judgement and order dated 15/09/2009 passed by the learned Second Addl. Sessions Judge, Nadiad in Sessions Case No.37 of 2009.

I solemnly affirm that what is stated in paras 1 to 3 is true to my own knowledge and to the best of my information and belief and I believe the same to be true."

7. It appears that during the pendency of the present Criminal

Appeals and thereafter, till the date of final hearing of Appeal

there is no any untoward incident between the two family

members and therefore, the parties have urged before this

Court that the impugned order may kindly be modified and/or

passed appropriate order.

8. Today the complainant along with the injured as well as the

accused are remained personally present before this Court

and on inquiry from the Court to the accused, more

particularly injured that whether they are entering into this

settlement without there being any duress or pressure and

they are entering into settlement without there being any

compelling circumstances and in free will and wish then in

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reply the accused and the injured have jointly submitted that

there is no any grudge or grievance remained between the

family members of the accused and the injured and they their

own entered into the settlement.

9. In turn, the victim has also voluntarily accepted the apology

while considering the age of the appellants at the time of

incident and has forgive them and has come forward without

any reservation to settle the dispute.

10. It is clear that Section 436 of the IPC is a non

compoundable offence and no permission can be granted to

record the compromise between the parties under Section 436

of IPC which reads as under:-

"436. Mischief by fire or explosive substance with intent to destroy house, etc.--Whoever commits mischief by fire or any explosive substance, intending to cause, or knowing it to be likely that he will thereby cause, the destruction of any building which is ordinarily used as a place of worship or as a human dwelling or as a place for the custody of property, shall be punished with 2 [imprisonment for life], or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine."

11. It is worthwhile to refer to the decisions of the Hon'ble

Apex Court in the case of Manjit Singh v. State of Punjab

reported in (2020) 18 SCC 777 and in the case of Sy.

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Azhar Sy. Kalandar v. State of Maharashtra reported in

AIR 2021 SC 4298

12. Considering the facts of the present case and the

averments made in the appeals and the material placed on

record as well as on perusal of the affidavit filed by the

injured before this Court, it appears that the parties have

amicable settled their dispute during the pendency of the

appeals. As the offence under Section 436 of IPC the Court

cannot grant permission to record the compromise arrived at

between the parties. It appears from the record that almost 17

years have been passed to the date of incident and there is

cordial relationship between the parties and there is no

enmity or dispute between the complainant and the appellant.

Even after the release of the appellants on bail there is no

allegation with regard to the breach of peace of tranquility

and no other offence committed by the appellants. It has

emerged from the record that the appellants are said to have

been served out the sentence of one month when they are

ordered to release on bail and therefore, the appellants

remained inside the jail for a period of almost one month and

more and also paid the fine.

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13. Considering the overall facts and taking note of the

settlement arrived at between the parties and considering the

cordial relationship of the parties and also sentence

undergone by the appellants, sentence of imprisonment

imposed upon the appellants under Section 436 of IPC is

reduced from two years to the period already undergone by

the accused appellants and fine of Rs.500/- is putforth.

14. In the case of Manjit Singh (supra), the Hon'ble Supreme

Court has held and observed in paragraphs No.13 and 14 as

under:-

"5. Section 307 I.P.C. is a non-compoundable offence. No permission can be granted to record the compromise between the parties. In Ishwar Singh v. State of Madhya Pradesh, (2008) 15 SCC 667, the Supreme Court of India has held that in a non-compoundable offence the compromise entered into between the parties is indeed a relevant circumstance which the Court may keep in mind for considering the quantum of sentence. In Paras (13) and (14) of the judgment in Ishwar Singh (supra) this Court has held as under:

"13. In Jetha Ram v. State of Rajasthan, (2006) 9 SCC 255, Murugesan v. Ganapathy Velar, (2001) 10 SCC 504 and Ishwarlal v. State of M.P., (2008) 15 SCC 671, this Court, while taking into account the fact of compromise between the parties, reduced sentence imposed on the appellant accused to already undergone, though the offences were not compoundable. But it was also stated that in Mahesh Chand

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v. State of Rajasthan, 1990 Supp. SCC 681 such offence was ordered to be compounded.

14. In our considered opinion, it would not be appropriate to order compounding of an offence not compoundable under the Code ignoring and keeping aside statutory provisions. In our judgment, however, limited submission of the learned counsel for the appellant deserves consideration that while imposing substantive sentence, the factum of compromise between the parties is indeed a relevant circumstance which the Court may keep in mind."

As noted earlier, in the present case the appellant accused, Manjit Singh, has been sentenced to undergo imprisonment for five years. The appellant is said to have served seventeen months of imprisonment. Taking note of the compromise entered into between the parties and considering the relationship of the parties and the facts and circumstances of the case and also the sentence undergone by the appellant accused, the sentence of imprisonment imposed upon the appellant under Sections 307 and 324 I.P.C. is reduced from five years/two years to the period already undergone by him. The appellant is ordered to be released forthwith unless his presence is required in any other case. In view of the compromise entered into between the parties, the fine amount of Rs.50,000/- imposed upon the appellant is set aside. If the said fine amount has already been paid, the same shall be refunded to the appellant- Manjit Singh."

15. In the case of Sy. Azhar S. Kalandar (supra), the Hon'ble

Supreme Court has held and observed in paragraphs No.11 to

14 as under:-

"11. In almost the same circumstances which have been noticed by us, a three Judge Bench of this Court in a recent

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judgment in Murali Vs. State represented by Inspector of Police, 2021(1) SCC 726 where the parties decided to forgive their past and live amicably, this Court has come to their rescue by interfering in the quantum of sentence which obviously is not compoundable under Section 320 Cr.P.C. but has interfered since there is no minimum sentence prescribed. This Court in Murali(supra), has taken note of the judgment of this Court in Ram Pujan and Others Vs. State of U.P., 1973(2) SCC 456 which was further followed by this Court in Ishwar Singh Vs. State of M.P .3 and the later decisions as referred to in paras 11 and 12 of the judgment has taken note of the compromise between the parties to reduce the sentence of the convicts even in serious noncompoundable offences. The relevant paras are as follows:

"11. In later decisions including in Ram Lal v. State of J&K (1999) 2 SCC 213; Bankat v. State of Maharashtra (2005) 1 SCC 343; Mohar Singh v. State of Rajasthan (2015) 11 SCC 226; Nanda Gopalan v. State of Kerala (2015) 11 SCC 137;

Shankar v. State of Maharashtra (2019) 5 SCC 166, this Court has taken note of the compromise between parties to reduce the sentence of the convicts even in serious noncompoundable offences.

12. Given this position of law and the peculiar circumstances arising out of subsequent events, we are of the considered opinion that it is a fit case to take a sympathetic view and reconsider the quantum of sentences awarded to the appellants. We say so because: first, the parties to the dispute have mutually buried their hatchet. The separate affidavit of the victim inspires confidence that the apology has voluntarily been accepted given the efflux of time and owing to the maturity brought about by age. There is no question of the settlement being as a result of any coercion or inducement. Considering that the parties are on friendly terms now and they inhabit the same society, this is a fit case for reduction of sentence."

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12. Taking into consideration the facts of the instant case and the circumstances arising out of the subsequent events, in our opinion, it is a fit case to take a sympathetic view and reconsider the quantum of sentence awarded to the appellant. We have recorded our satisfaction, based on the reasons, that the parties to the dispute have mutually settled their disputes and buried their past.

13. The joint affidavit inspires confidence that the apology as tendered by the appellant has voluntarily been accepted given the efflux of time and is not a result of any coercion or inducement. Considering that they are residing in the same village and are peacefully residing after the uncalled for incident has taken place, in our view, this appears to be a fit case for reduction of sentence.

14. Considering the overall facts on record and other mitigating factors and circumstances in which a crime has been committed including the nature of injury, period during which he remained under medical treatment, mental agony which the victim suffered and also the compromise entered into between the parties, while upholding conviction under Section 307 IPC, we deem it appropriate to reduce the quantum of sentence imposed on the appellant to five years rigorous imprisonment and to pay a fine of Rs. 10,000/and in default of payment of fine shall suffer further three months' rigorous imprisonment. Ordered accordingly."

16. Considering the submissions canvassed by learned

advocates of both the sides and the material placed on record

and the aforesaid decisions of the Hon'ble Apex Court appeal

deserves to be allowed in part and the impugned judgment

and order of conviction deserves to be modified to the extent.

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17. In present case, more than 17 years have elapsed and the

parties have settled in their life. Therefore, maintaining the

judgment, the interest of justice will be sub-served if the

punishment of two years is substituted by the period already