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CR.A/474/2010 9/ 9 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
APPEAL No. 474 of 2010
For
Approval and Signature:
HONOURABLE
MR.JUSTICE MD SHAH
=========================================================
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 ?
=========================================================
MOHAMMED
IMTIYAZ AHMEDMIYA MUNSHI - Appellant(s)
Versus
STATE
OF GUJARAT - Opponent(s)
=========================================================
Appearance :
MR
MM TIRMIZI for
Appellant(s) : 1,
Mr.L.R.Pujari, APP for Opponent(s) :
1,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE MD SHAH
Date
: 17/10/2011
CAV
JUDGMENT
By
way of filing this appeal, the appellant has challenged the judgment
and order dated 20.1.2010 passed by the Additional Sessions Judge,
(First Fast Track Judge), Ahmedabad (Rural), whereby the appellant
has been convicted for the offences punishable under Sections 306 and
366 of Indian Penal Code and sentenced to undergo rigorous
imprisonment for seven years and fine of Rs.5,000/-, in default, to
undergo simple imprisonment for further three months for each of the
offences. Both the sentences were ordered to run concurrently.
However, he was acquitted for the offence punishable under Section
363 of the Indian Penal Code.
The
brief facts leading to filing of this appeal are such that
complainant Kataria Ramubhai Vishrambhai, resident of Barejdi, Taluka
Dascroi filed a complaint before the Aslali Police on 28.7.1987 to
the effect that he is serving in Sales Tax Department as Sales Tax
Inspector at Ahmedabad and is residing with his family at Barejdi. He
has two sons and four daughters. The eldest daughter’s name is
Pallavi who was 19 years old at the time of the incident. It is
alleged in the complaint that the present appellant-accused kidnapped
his daughter Pallaviben from the lawful custody of her parents on
28.7.1987 with ulterior motive of committing rape on her and that on
2.8.1987, it is reported that victim girl Pallaviben had died. On the
basis of this complaint and after investigation, the charge sheet
came to be filed in the Court of learned J.M.F.C., Narol under
Sections 363 and 366 of the Indian Penal Code. The learned J.M.F.C.,
Narol committed the case to the Sessions Court wherein it was
numbered as Sessions Case No.181 of 1989.
The
Sessions Court framed the charges against the accused on 17.1.1990
under Sections 363 and 366 of the Indian Penal Code. During the
course of the trial, on 6.3.1990, the complainant submitted
application for further investigation which was granted by the
Sessions Court by order dated 19.3.1990. After reinvestigation,
supplementary charge sheet for the offence punishable under Section
306 of Indian Penal Code came to be filed against the accused on
31.5.1991 before the 4th Jt.J.M.F.C., Ahmedabad (Rural).
The learned J.M.F.C. committed the said case to the Sessions Court
which was numbered as Sessions Case No.123 of 1991. As both the
charge sheets were filed in reference to the same offence, learned
APP submitted application on 15.12.2007 vide Exh.67 for consolidation
of both the sessions cases, which application was allowed by the
Sessions Court and common evidence was recorded in both the cases.
During the pendency of the trial of Sessions Case No.123 of 1991, the
accused did not remain present and non-bailable warrant was issued
against him and he was arrested by the police on 2.7.2007. He filed
Criminal Miscellaneous Application No.11688 of 2008 before the High
Court praying to release him on bail which was rejected on 11.9.2008.
The
learned Sessions Judge framed the additional charge for the offence
punishable under Section 306 of Indian Penal Code against the
accused. The accused denied the charges framed against him and
claimed to be tried. To prove its case, the prosecution examined 19
witnesses including the complainant. The prosecution also produced
documentary evidence including the complaint at Exh.95, inquest
panchanama at Exh.132, panchanama of scene of offence at Exh.133,
P.M.Note at Exh.111, FSL report, arrest panchanama of the accused at
Exh.64, panchanama of recovery of the utensils from the alleged house
of the accused at Exh.117. After learned APP submitted the closing
pursis, statement of the accused was recorded under Section 313 of
Criminal Procedure Code in which he stated that he is falsely
implicated in the crime and he is innocent. After hearing the
arguments advanced by learned advocates for both the sides, the trial
Court convicted and sentenced the accused as referred to hereinabove,
against which the present appeal is filed.
Heard
learned advocate Mr.Tirmizi for the appellant-accused and learned APP
Mr.Pujari for the State, perused the record and impugned judgment and
order.
Learned
advocate Mr.Tirmizi for the appellant submitted that no offence is
made out under Section 306 of Indian Penal Code as ingredients of
Section 107 of Indian Penal Code are not proved and in spite of that,
the trial Court has, on assumptions and presumptions, came to the
conclusion that victim committed suicide as the accused did not marry
her though he promised to do so and therefore the accused instigated
the victim to commit suicide. However, he fairly submitted that he
does not press this appeal on merits but presses only on the quantum
of sentence. He submits that the accused is married now and has
children of very young age and except this offence, the accused is
not involved in any other offence and has not misused his liberty and
therefore prayed to reduce the sentence.
Learned
APP Mr.Pujari submitted that the impugned judgment and order is just
and proper and is not required to be interfered with.
The
present appellant-accused was charged under Sections 363 and 366 of
the Indian Penal Code and subsequently charged under Section 306 of
Indian Penal Code. It is mainly the case of prosecution that the
victim was in love affair with the accused and the accused kidnapped
the victim by giving false promise of marriage and thereupon he
stayed with the victim girl in rented house at Naroda for some days
and after that the accused refused to marry her and so the victim was
not in a position to return to her parents’ house and committed
suicide.
In
light of this prosecution case, if we discuss the evidence on record,
P.W.2 Punamben Dahyabhai who is examined at Exh.13 stated in her
deposition that she and deceased Pallavi went to school from Barejia
to Ahmedabad in train and one Rajubhai was also travelling in the
said train and there was love affair between the said Rajubhai and
Pallavi. As per this evidence, deceased Pallavi also introduced this
witness to the said Rajubhai. As per this evidence, said Rajubhai
wrote a chit to Pallavi stating her to leave the company of the
accused or else the accused would commit rape on her and spoil her
life. This chit is referred to the witnesses and it was given Exh.11.
As Pallavi moved around with the accused, this witness did not keep
contact with Pallavi and then after six months, this incident took
place. As per evidence of this witness, when police came for
interrogation to her place, she came to know that deceased Pallavi
and accused were residing as husband and wife in Naroda and they got
married.
P.W.3
Rajendrabhai Prajapati stated in his deposition at Exh.14 that he was
in love affair with Pallavi and it continued for six months. As per
his say, he cut the relation with Pallavi before three months from
the date of the incident as he came to know the relation of Pallavi
with the present accused. He also admitted the letter which he wrote
to Pallavi which is given Exh.11. As per evidence of this witness, he
came to know that Pallavi got married with the accused and she was
residing with accused at Naroda.
P.W.5
Shantaben Ambalal, in whose house the deceased and accused resided
together and from whose house the dead body of the deceased Pallavi
was found, stated in her deposition at Exh.16 that both the accused
and Pallavi were tenants and they paid Rs.100/- to her as monthly
rent. As per the evidence of this witness, they were residing
together and accused introduced Pallavi as his wife. From this
evidence, it transpires that accused and Pallavi got married and they
were residing as husband and wife in the house of this witness. It
has also come out from the evidence that accused purchased utensils
for running the house and these utensils were found from the house of
this witness and they contained the name of the accused. This also
shows that both the deceased and the accused were residing together
voluntarily.
As
per the evidence of the father of the deceased victim-original
complainant Ramubhai Vishrambhai Kataria who is examined at Exh.85,
her daughter Pallavi-deceased was aged 19 years at the time of the
incident.
As
the deceased was aged 19 years at the time of incident, no offence is
made out under Section 363 of the Indian Penal Code which is rightly
held by the trial Court.
The
trial Court has come to the conclusion that as accused refused to
marry the deceased, she committed suicide as she had no other
alternative but as per the evidence referred to hereinabove, the
deceased and accused got married and were residing together as
husband and wife. The Investigating Officer has not carried out any
investigation to find out whether the marriage took place between the
accused and deceased. The trial Court has only relied upon the
evidence of one witness Kiritbhai Hariprasad Pandya who was the
school teacher who stated in his deposition at Exh.114 that the
accused came to him and confessed that he has committed mistake and
he is staying with deceased without marriage as he is in love with
her. He confessed that the accused and the deceased are in love with
each other and therefore he ran away with her and they are staying at
Naroda. As per the evidence of this witness, he advised the accused
that he committed this mistake at a very young age and therefore he
should inform at his house immediately. Relying on this evidence, the
trial Court came to the conclusion that accused stayed with Pallavi
without marriage and so presumption was drawn that he promised
marriage to the deceased but as he did not fulfill the promise, the
deceased was compelled to commit suicide.
From
the evidence of the witnesses, it transpires that both the accused
and deceased married with each other and were staying as husband and
wife and so in absence of any cogent and reliable evidence, it cannot
be said that accused and deceased were staying at Naroda without
getting married. Nothing has come out from the evidence which could
show that any untoward incident had happened between the deceased and
the accused before she committed suicide. As per evidence of
P.W.5-Shantaben who was the landlady, in the morning the accused was
in the house and then after she went to attend some religious
function (katha) and when she returned, she came to know that the
dead body of Pallavi is lying in her house and so she immediately
informed the police. This witness did not state that any quarrel had
taken place between the accused and deceased in the morning and she
also stated that both of them were residing in the house happily.
In
view of the above, the ingredients of Section 107 of Indian Penal
Code are not proved and it cannot be said that the accused had
instigated the victim to commit suicide by refusing to marry her. As
per the jail record, the accused is in jail since more than four
years and his jail conduct is good. Considering the evidence on
record and considering the arguments advanced by learned advocate for
the appellant, this Court is of the opinion that the ends of justice
will meet if the sentence is reduced to the extent undergone.
In
view of the above, this appeal is partly allowed. The judgment and
order dated 20.1.2010 passed by the Additional Sessions Judge, (First
Fast Track Judge), Ahmedabad (Rural) is hereby modified and the
sentence awarded is reduced to the extent already undergone. The
accused is ordered to be set at liberty, if not required in any other
case.
(
M.D.Shah, J )
srilatha
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