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CR.A/1961/2006 6/ 6 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
APPEAL No. 1961 of 2006
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 ?
=========================================
BAROT
DINESHKUMAR KANTILAL - Appellant(s)
Versus
THE
STATE OF GUJARAT - Opponent(s)
=========================================
Appearance
:
THROUGH
JAIL for Appellant(s) : 1,MR.DEVANG D DAVE for Appellant(s) : 1,
MR
HH PARIKH ADDITIONAL PUBLIC PROSECUTOR for Opponent(s) :
1,
=========================================
CORAM
:
HONOURABLE
MR.JUSTICE Z.K.SAIYED
Date
: 21/09/2010
ORAL
JUDGMENT
1. The
present appellant has preferred this Appeal through jail under
Section 389(1) of the Code of Criminal Procedure against the judgment
and order of conviction and sentence dated 10.4.2006 passed by the
learned District Sessions Judge, Mehsana in Sessions Case No.203 of
2005, whereby the learned Sessions Judge has convicted and sentenced
the appellant to undergo R.I. for seven years with a fine of
Rs.5,000/-, in default, six months more R.I. for the offence
punishable under Section 306 of the Indian Penal Code. For the
offence punishable under Section 506(2) of the Indian Penal Code,
learned Sessions Judge was pleased to sentence the appellant to
undergo R.I. for one year and to pay a fine of Rs.500/-, in default,
to undergo further R.I. for one month.
The
brief facts of the prosecution case is as under:
2. As
per the case of the prosecution, one Madhuben, wife of Natubhai
Chandubhai Oza, resident of Bechraji lodged a complaint before
Becharaji Police Station alleging that the complainant lady on
telephone message was told by the appellant accused to keep
illicit relationship with him, and if having not done so, the
appellant accused threatened the lady to murder her husband. The
appellant caused mental torture to the complainant lady and
therefore, complainant lady committed suicide by setting ablazed her
by stove of kerosene. Therefore, the complaint being C.R. I NO.27 of
2001 was lodged before Becharaji Police Station for the offences
punishable under Sections 306, 517 and 506 of the Indian Penal Code
against the appellant.
3. Thereafter,
statements of the witnesses were recorded, panchnama was drawn and
accused was arrested. There was sufficient evidence against the
appellant, charge-sheet was filed before the learned Chief Judicial
Magistrate First Class, Bechraji. Thereafter, as the case was
exclusively triable by the Court of Sessions, the learned Magistrate
has committed the case to the Court of Sessions, which was numbered
as Sessions Case No.203 of 2005.
4. Thereafter,
the charge was framed against the appellant. The appellant
accused has pleaded not guilty and claimed to be tried.
5.
To prove the case against the appellant, the prosecution has produced
documentary evidence and also examined the witnesses before the
Sessions Court.
6. Thereafter,
after examining the witnesses, further statement of the appellant
accused under Section 313 of the Code of Criminal Procedure was
recorded in which the appellant accused has denied the case of
the prosecution.
7. After
considering the oral as well as documentary evidence and after
hearing the parties, learned Principal Sessions Judge, Mehsana vide
judgment and order dated 10.4.2006 held the appellant accused
guilty to the charge levelled against him as stated above.
8. Feeling
aggrieved and dissatisfied with the impugned judgment and order of
conviction and sentence passed by the learned Sessions Judge, the
present appellant has preferred this appeal.
9. Learned
advocate Mr. Devang Dave, the Amicus curiae appearing on behalf of
the appellant submitted that there were several contradiction between
the documentary evidence produced by the prosecution and they were
never proved as per the Evidence Act, even though the learned
Sessions Judge held guilty the appellant for the offence alleged and
convicted the appellant. Therefore, the order impugned is required to
be quashed and set aside by allowing the appeal.
10. Learned
advocate Mr. Dave for the appellant argued that he is not arguing
this matter on merits, but arguing only on the quantum of punishment
so far it relates to the sentence imposed by the learned trial Judge
and the appellant accused has already undergone the period of more
than 4 years out of total imprisonment. Therefore, he argued that
considering the period which undergone by the appellant accused in
jail may be considered as sentence, as he has undergone more than
half period of total sentence.
11. The
learned APP Mr. H.H. Parikh for the State strongly opposed the
submissions made by the learned advocate for the appellant. It
was contended
by learned APP that the judgment and order of the Sessions Court is
just and proper and as per the provisions of law; the Sessions Court
has properly considered the evidence led by the prosecution and
looking to the provisions of law itself it is established that the
prosecution has proved the whole ingredients of the evidence against
the present appellant. Learned APP has also taken this Court through
the oral as well as the entire documentary evidence. He lastly
submitted that the appellant has undergone more than half period in
jail and therefore, if the undergone period may be treated as
sentence, the State has no objection.
12. I
have perused the records and considered the submissions made by both
the sides. I have also perused the judgment and order passed by the
learned Sessions Judge. From the perusal of the judgment and order, I
am of the view that learned trial Judge has rightly observed the
evidence and also rightly sentenced the appellant. I am in total
agreement with the findings assigned by the learned Sessions Judge.
But so far as the quantum of punishment is concerned, I have
considered the submission made by the learned advocate for the
appellant. The appellant is in jail from 1.4.2006 and therefore,
looking to the quantum of punishment, the sentence imposed by the
learned Sessions Judge is required to be modified and the period,
which has already been undergone by the appellant is required to be
treated as sentence.
13. In view
of the above observation, the
Appeal is partly allowed. the Appeal
is partly allowed. The
judgment and order dated 10.4.2006 passed by the learned Principal
Sessions Judge, Mehsana in Sessions Case No.203 of 2005, is hereby
modified and it is hereby ordered that the appellant’s undergone
sentence, shall be treated as sentence. The appellant is ordered
to be set at liberty forthwith, if not required in any other case.
Rest of the judgment of the learned Sessions Court shall remain
unaltered. R & P to be sent back to the trial Court, forthwith.
(Z.K.SAIYED,J.)
ynvyas
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