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CR.A/2195/2009 6/ 6 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
APPEAL No. 2195 of 2009
For
Approval and Signature:
HONOURABLE
MR.JUSTICE Z.K.SAIYED
=========================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To
be referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
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LAKSHMIBEN
WD/O BHANVARLAL BHOMAJI KHATIK - Appellant(s)
Versus
STATE
OF GUJARAT - Opponent(s)
=========================================
Appearance :
MR
JK PARMAR for
Appellant(s) : 1,
MR HL JANI, LD. ADDL. PUBLIC PROSECUTOR for
Opponent(s) : 1,
=========================================
CORAM
:
HONOURABLE
MR.JUSTICE Z.K.SAIYED
Date
: 29/11/2010
ORAL
JUDGMENT
The
appellant has preferred the present appeal against the judgment and
order of conviction and sentence dated 24th
February 2009 passed by the learned Additional Principal Judge,
Court No.2, Ahmedabad, in Sessions Case No.92 of 2008,
whereby the appellant has been held guilty for the offences
punishable under Sections 306 and 498(A) of the Indian Penal Code.
It
is the case of the prosecution that the deceased, her husband and
the appellant were residing together under one roof. It is the case
of the prosecution that the deceased and the appellant used to
quarrel frequently with regard to work to be undertaken by the
deceased. It is also the case of the prosecution that deceased was
subject to physical and mental cruelty, as a result of which
deceased sprinkled kerosene over her body and set herself at fire.
As
the deceased sustained serious burn injuries, Police Officer of
Rakhiyal Police Station was informed about the incident. Therefore,
PSI, Rakhiyal Police Station reached to the hospital and looking to
the health of the deceased, forwarded a Yadi to the Executive
Magistrate for recording dying declaration of the deceased. On
receiving Yadi, Executive Magistrate reached to the hospital and
recorded dying declaration of the deceased. It is further the case
of the prosecution that due to the burn injuries, the deceased
passed away.
Under
the circumstances, PSO, Rakhiyal Police Station, registered the
complaint on 29th January 2008. Pursuant to the FIR,
investigation proceeded. Panchnama of seen of offence was drawn.
Thereafter, statement of various witnesses were recorded and
ultimately the Investigating Officer filed charge-sheet before the
Court of learned Metropolitan Magistrate, Court No.24, Ahmedabad.
The said case was numbered as Criminal Case No.454 of 2008. As the
case was exclusively triable by the Court of Sessions, the same was
committed to the Sessions Court, Ahmedabad.
After
filing of closing pursis by the prosecution, statement under Section
313 of the Code of Criminal Procedure, 1973 of the appellant was
recorded. The appellant has denied the case of the prosecution and
claimed to be tried.
Thereafter,
trial was conducted before the learned Additional Principle Judge.
To prove the case of the prosecution, prosecution has produced oral
as well as documentary evidence.
After
hearing both the sides, the learned Additional Principle Judge,
Court No.2, Ahmedabad, by his judgment and order of conviction dated
24th
February 2009 passed in Sessions Case No.92 of 2008, convicted the
appellant for the offence punishable under Section 306 of the Indian
Penal Code and ordered to undergo rigorous imprisonment for a period
of five years and fine of Rs.05,000/-, and in default of payment of
fine, ordered to undergo rigorous imprisonment for a further period
of three months. The learned Judge had also convicted the appellant
under Section 498(A) of the Indian Penal Code and ordered to undergo
rigorous imprisonment for a period of 15 months and fine of
Rs.01,000/-, and in default of payment of fine, ordered to undergo
rigorous imprisonment for a further period of three months. However,
it was clarified that both the sentences shall run
concurrently and also clarified that the period, which the appellant
has spent in the judicial custody, shall be given as a set of.
Being
aggrieved by and dissatisfied with the said judgment and order of
conviction dated 24th
February 2009 passed by the learned Additional Principle Judge,
Court No.2, Ahmedabad, the appellant hereinabove has preferred the
present Criminal Appeal before this Hon’ble Court.
Heard
Mr.J.K. Parmar, learned counsel for the appellant and Mr.H.L. Jani,
learned Additional Public Prosecutor, appearing on behalf of the
respondent-State.
Mr.Parmar
has contended that he is not arguing the matter on merits, but
praying to release the appellant considering the undergone period as
sentence. He has contended that he is arguing the matter only for
the purpose of quantum. He has also contended that the appellant is
a lady aged about 14 years. He has also contended that the appellant
is behind the bars for almost three years. He has also contended
that looking to the overall facts and circumstances of the case,
some lenient view is required to be taken in the matter and
therefore, the appellant is required to be set at liberty by
considering the period already undergone by the appellant.
Heard
Mr.H.L. Jani, learned
Additional Public Prosecutor for the respondent-State. He has
supported the judgment and order of conviction passed by the learned
Judge. He has contended that looking to the charge framed against
the appellant, order passed by the learned Judge is absolutely just
and proper. He has also read the documentary evidence produced on
record and contended that learned
Judge
has not committed any error in convicting the appellant-accused. He
has also contended that this is an offence against woman and now a
days this is a serious issue. He, therefore, contended that the
present appeal is required to be dismissed.
I
have
gone through papers produced before me and the judgment and order
passed by the learned trial Court. I have also perused the oral as
well as documentary evidence led before the trial Court and also
considered the submissions made by learned counsel for the parties.
Looking
to the facts and circumstances of the case and looking to the
evidence on record, I am of the opinion that conviction imposed upon
the appellant is very harsh. I have also gone through the jail
report produced by Mr.H.L. Jani. Jail report shows that the
appellant is behind the bars for almost three years. I am of the
opinion that when the appellant is behind the bars for more than
half the sentence imposed upon her, if the sentence already
undergone by the appellant-convict may be treated as sentence, same
would meet with the ends of justice. Even looking to the submissions
advanced by the learned counsel for the appellant and circumstances
of the case, sentence imposed upon the appellant is required to be
reduced and modified on the ground of sympathy also.
Hence,
in view of the foregoing reasons, present appeal is partly allowed.
The judgment and order of conviction dated 24th
February 2009 passed by the learned Additional Principle Judge,
Court No.2, Ahmedabad in Sessions Case No.92 of 2008, is hereby
confirmed. However, the judgment and order of conviction dated 24th
February 2009 passed by the learned Additional Principle Judge,
Court No.2, Ahmedabad in Sessions Case No.92 of 2008 is hereby
reduced and modified to the extent of sentence which the appellant
has already undergone. The appellant shall be set at liberty
forthwith, if he is not required to be detained in any other case.
The rest of the judgment and order of conviction dated 24th
February 2009 shall remain unaltered. Bail bond, if any, shall stand
discharged. Record and Proceedings, if any, be sent back to the
trial Court concerned, forthwith.
(Z.
K. Saiyed, J)
Anup
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