STATE OF GUJARAT Vs. MARGUB SALAM AND ORS.

JUDGEMENT

(1.) PRESENT appeals have been directed against the judgment and order dated 13/10/2008 passed by the learned 3rd Additional Sessions Judge, Jamnagar in Sessions Case No. 124 of 2006, whereby, the learned trial Judge was pleased to convict the original accused Nos. 1 and 4 and for the offence punishable under Section 304(II) of the Indian Penal Code, 1860 (for brevity, 'the IPC') and accordingly, the original accused No. 1 was sentenced to undergo rigorous imprisonment for 05 years and a fine of Rs. 5,000/ - and in default of payment of fine, to undergo further simple imprisonment for 03 months, whereas, the original accused No. 4 was sentenced to undergo rigorous imprisonment for 03 years and a fine of Rs. 3,000/ - and in default of payment of fine, to undergo further simple imprisonment for 01 month. They were also convicted for the offence punishable under Section 201 r/w. Section 511 of the IPC and accordingly, the original accused No. 1 was sentenced to undergo rigorous imprisonment for 03 years and a fine of Rs. 3,000/ - and in default of payment of fine, to undergo further simple imprisonment for 01 month, whereas, the original accused No. 4 was sentenced to undergo rigorous imprisonment for 02 years and a fine of Rs. 2,000/ - and in default of payment of fine, to undergo further simple imprisonment for 15 days. The original accused Nos. 2 and 3 came to be acquitted from the charges levelled against them. Accordingly, the Criminal Appeal No. 3131 of 2008 has been filed by the appellant - State for enhancement of sentence, whereas, the Criminal Appeal No. 2963 of 2008 has been filed by the appellant - original accused No. 1 against conviction.

(2.) IT was the case of the prosecution that a complaint came to be lodged against the accused for the offence punishable under Sections 302, 323, 201, 341, 506(2) and 34 of the IPC and Section 135(1) of the Bombay Police Act in the Lalpur Police Station, Dist.: Jamnagar. Pursuant to the complaint, investigation was carried out. After investigation, charge -sheet was filed and as the case was triable by the Court of Sessions, it was committed to the Court of Sessions at Jamnagar. The trial Court framed charge against the accused. The accused pleaded not guilty to the charge and claimed to be tried. Therefore, the prosecution produced oral as well as documentary evidence. In order to bring home the charge against the respondents - original accused, the prosecution has examined as many as 20 witnesses and also produced several documentary evidence. At the end of the trial and after recording the Further Statements of the accused under Section 313 of Criminal Procedure Code, 1973 (for brevity, 'the Code') and hearing arguments on behalf of prosecution and the defence, the learned Sessions Judge passed the aforesaid judgment and order against which, the present appeals have been preferred.

(3.) AT the outset, Mr. Lakhani, learned senior advocate for the original accused No. 1, submitted that the accused has already undergone almost 29 months and taking into consideration the circumstances in which the offence had occurred and the age and the carrier of the accused and more particularly, in view of the affidavit filed by the mother of the deceased stating that they have arrived at a compromise and if reasonable compensation is paid, she would not have any grievance and accordingly, since the accused is ready and willing to pay a substantial amount towards compensation, he requested that this Court may consider the said aspect and in the peculiar facts and circumstances of the case, convert the sentence into compensation in view of provision of Section 357 of the Code. Qua compensation, he relied upon a decision of the Hon'ble Apex Court in the case of Ankush Shivaji Gaikwad v. State of Maharashtra, reported in : AIR 2013 SC 2454 and requested that this Court may pass appropriate order.