{"id":267381,"date":"2011-10-17T00:00:00","date_gmt":"2011-10-16T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/vijaykumar-vs-heard-learned-advocate-on-17-october-2011"},"modified":"2018-02-18T05:41:18","modified_gmt":"2018-02-18T00:11:18","slug":"vijaykumar-vs-heard-learned-advocate-on-17-october-2011","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/vijaykumar-vs-heard-learned-advocate-on-17-october-2011","title":{"rendered":"Vijaykumar vs Heard Learned Advocate on 17 October, 2011"},"content":{"rendered":"
Gujarat High Court<\/div>\n
Vijaykumar vs Heard Learned Advocate on 17 October, 2011<\/div>\n
Author: Md Shah,<\/div>\n
  \n Gujarat High Court Case Information System \n    \n  \n    \n\n \n \n    \t      \n         \n\t    \n\t\t   Print\n\t\t\t\t          \n\n  \n\n\n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t\n\n\n \n\n\n\t \n\nCR.A\/842\/2008\t 15\/ 15\tJUDGMENT \n \n \n\n\t\n\n \n\nIN\nTHE HIGH COURT OF GUJARAT AT AHMEDABAD\n \n\n \n\n\n \n\nCRIMINAL\nAPPEAL No. 842 of 2008\n \n\n \nFor\nApproval and Signature:  \n \nHONOURABLE\nMR.JUSTICE MD SHAH\n \n=========================================================\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n1\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\tReporters of Local Papers may be allowed to see the judgment ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n2\n\t\t\n\t\t \n\t\t\t \n\nTo be\n\t\t\treferred to the Reporter or not ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n3\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\ttheir Lordships wish to see the fair copy of the judgment ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n4\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\tthis case involves a substantial question of law as to the\n\t\t\tinterpretation of the constitution of India, 1950 or any order\n\t\t\tmade thereunder ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n5\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\tit is to be circulated to the civil judge ?\n\t\t\n\t\n\n \n\n=========================================================\n\n \n\nVIJAYKUMAR\nKRASHNALAL PATHAK - Appellant(s)\n \n\nVersus\n \n\nTHE\nSTATE OF GUJARAT & 1 - Opponent(s)\n \n\n=========================================================\n \nAppearance\n: \nMR\nASHISH M DAGLI for\nAppellant(s) : 1 - 2. \nMR LR PUJARI, APP for Opponent(s) :\n1, \n=========================================================\n\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\nCORAM\n\t\t\t: \n\t\t\t\n\t\t\n\t\t \n\t\t\t \n\nHONOURABLE\n\t\t\tMR.JUSTICE MD SHAH\n\t\t\n\t\n\n \n\nDate\n: 17\/10\/2011 \n\n \n\nORAL\nJUDGMENT<\/pre>\n
This appeal under Sec.374(2) of
\n\tthe Code of Criminal Procedure has been filed by the
\n\tappellants-original accused being aggrieved by the judgment and
\n\torder dated 18-1-2008 passed by the learned Additional Sessions
\n\tJudge, Dhrangadhara, in Sessions Case No.6 of 2007 whereby both the
\n\taccused were convicted and sentenced to suffer RI for a period of
\n\tseven years and to pay fine of Rs.2000\/-, in default, to suffer
\n\tfurther RI for one year for the offence punishable under Sec.306 of
\n\tIPC<\/a>; RI for a period of three years and to pay fine of Rs.1000\/-, in
\n\tdefault, to suffer further RI for six months for the offence
\n\tpunishable under Sec.498-A read with Sec.114 of IPC<\/a> and also to
\n\tsuffer RI for one year and to pay fine of Rs.500\/- in default, to
\n\tsuffer further RI for three months for the offence punishable under
\n\tSec.4 of the Dowry Prohibition Act. All the substantive sentences
\n\twere ordered to run concurrently. The accused were given set off
\n\tunder Sec.428 of Cr.P.C<\/a>. for the period undergone in jail.\n<\/p>\n
Case in short is that a complaint
\n\twas filed by the complainant-Ashokkumar Thakar before Dhrangadhra
\n\tPolice Station alleging inter alia that his daughter committed
\n\tsuicide on 19-7-2006 due to ill-treatment and harassment meted out
\n\tby the appellants, who are husband and mother-in-law of the victim
\n\trespectively.  Pursuant to the said complaint, police started
\n\tinvestigation, drew panchnama of scene of incident  and at the end
\n\tof investigation, filed charge sheet against the appellants-accused
\n\tfor the offences punishable under Secs.306, 498(A) and 114 of IPC<\/a>
\n\tread with Sec.4 of Dowry Prohibition Act.   As the offence was
\n\tSessions Triable case, the learned Magistrate committed the case to
\n\tthe Court of Sessions. Charge was framed against the accused on
\n\t2-6-2007 at Ex.8. The charge was read over and explained to the
\n\taccused. The accused denied all the charges and pleaded to be tried.
\n\tHence, the prosecution was asked to prove the guilt against the
\n\taccused. To prove the guilt
\n\tagainst the accused, prosecution examined in all 12 witnesses and
\n\thas produced and relied upon several documentary evidence such as
\n\tcomplaint Ex.26, injury certificate of appellant No.1 at Exs.38 and
\n\t44, AD entry at Ex.47 etc.  On submission of closing pursis at Ex.56
\n\tby the learned APP, the accused sought to examine four witnesses in
\n\ttheir defense at Exs.63,64,59 and 61. Thereafter, further statements
\n\tof the accused under Sec.313 of Code<\/a> of Criminal Procedure
\n\twere recorded in which the accused have denied all the charges.
\n\tThereafter,    on affording opportunity of hearing to the learned
\n\tadvocates appearing for the respective parties, learned Addl.
\n\tSessions Judge delivered the impugned judgment convicting and
\n\tsentencing the appellants as aforesaid in the earlier part of this
\n\tjudgment giving rise to prefer the present appeal.\n<\/p>\n
Heard learned advocate, Mr.Ashish
\n\tDagli for the appellants-original accused  and learned APP,
\n\tMr.L.R.Pujari for the respondent-State.\n<\/p>\n
It is argued by learned advocate,
\n\tMr.Ashish Dagli for the original accused that the trial court has
\n\ttaken a moral view rather than a legal view in the present case.
\n\tAccording to him, the learned Judge has not considered major
\n\tcontradictions between the evidence of complainant-Ashokkumar Thakar
\n\tand other witnesses and the impugned judgment is based on
\n\tpresumption, surmises and conjectures.  It is submitted that the
\n\tvictim and the appellant No.1 were staying separately in a rental
\n\tpremises at Adhrangadhra. Taking this Court through the evidence of
\n\tDr.Pragnesh Khedawala, P.W.9 at Ex.59, it is also submitted that the
\n\tappellant No.1 was under treatment for which the victim used to take
\n\tthe appellant No.1 for treatment of Dr.Pragnesh Khedawala.  It is
\n\tfurther submitted that the victim did not like to stay in Village as
\n\tshe spent her childhood days in Rajkot City and, therefore, she
\n\tstayed with her parents six months prior to the date of incident and
\n\tbecause of personal feelings, the victim has taken the extreme step.
\n\t It is further submitted that the victim  disliked and showed
\n\tanxiety before five days about the engagement of her brother with
\n\tthe daughter of Mandakiniben. Therefore, the trial court erred
\n\tgravely in coming to a conclusion that the victim committed suicide
\n\tdue to ill-treatment and harassment at the hands of appellants.
\n\tApart from that, the defense witnesses have categorically stated
\n\tthat appellant No.1 was under treatment  which is supported by
\n\tmedical papers.\n<\/p>\n
As regards accused No.2, who is
\n\tmother of the accused No.1, is concerned, it is submitted by
\n\tMr.Dagli that it has come on record that  appellant No.2 was staying
\n\tseparately with her husband at Sanosara Village which is 52. km away
\n\tfrom the place of incident since last 6-8 months of the incident and
\n\thusband of accused No.2 was doing ‘Yajman Vruti’. This aspect has
\n\tnot been considered by the trial
\n\tcourt and committed error in coming to the conclusion that all the
\n\tdefense witnesses are got up witnesses and to escape from criminal
\n\tliability, a false story was put up by the accused. It is
\n\tfurther submitted that the trial court ought to have independently
\n\texamined the evidence as far as the appellant Nos.1 and 2 are
\n\tconcerned. It is therefore submitted that the charge for the
\n\toffences punishable under Secs.498(A) or 306 are not proved against
\n\tthe accused No.2. As regards the charge under the Dowry Prohibition
\n\tAct<\/a>, it is submitted that there is nothing on record to indicate
\n\tthat the accused No.2 have ever demanded any dowry either before
\n\tmarriage or after the marriage. It is also further submitted that
\n\tthe trial court has failed to appreciate all these aspects and erred
\n\tgravely in passing the impugned judgment and order of conviction and
\n\tsentence against her. It is therefore urged that the impugned
\n\tjudgment and order be quashed and set aside qua the appellant No.2
\n\tand she may be acquitted of the charges levelled against her.
\n\tMr.Dagli has relied on the following reported decisions:\n<\/p>\n
1)
\n\tAIR 2007 SC 2666 in the case of Mehiboobsab Abbasabi Nadaf Vs. State
\n\tof Karnataka;\n<\/p>\n
2)
\n\t(2007)4 Supreme 674 in the case of Kishori Lal V. State of Madhya
\n\tPradesh<\/a>;\n<\/p>\n
3)
\n\t2007 (2) G.L.H. 78 in the case of Biswajit Halder @ Babu Halder &
\n\tOrs. V. State of West Bengal<\/a>;\n<\/p>\n
4)
\n\t2006 Criminal 226 in the case of Harjit Singh Vs. State of Punjab;\n<\/p>\n
5)2006
\n\tCriminal 35 in the case of Tirath Kumari @ Raj Rani & Anr. Vs.
\n\tState of Haryana;\n<\/p>\n
6)
\n\t2004 Criminal 300 in the case of Ashok Vishnu Davare Vs.  State of
\n\tMaharashtra;\n<\/p>\n
7)
\n\t2002 Criminal 700 in the case of Girdhar Shankar Tawade Vs. State of
\n\tMaharashtra;\n<\/p>\n
8)
\n\t2002 Criminal 440 in the case of Gananath Pattnaik  Vs. State of
\n\tOrissa;\n<\/p>\n
9)
\n\t2002 Criminal 207 in the case of Sunil Bajaj Vs. State of  M.P.;\n<\/p>\n
10)
\n\t2001(0) GLHEL SC 23593 in the case of Ramesh Kumar Vs. State of
\n\tChattisgarh;\n<\/p>\n
11)
\n\t1998 Criminal 567 in the case of Prem Singh Etc. Vs. State of
\n\tHaryana;\n<\/p>\n
12)
\n\tAIR 1998 SC 774 in the case of Meka Ramaswamy Vs. Dasari Mohan &
\n\tOrs;\n<\/p>\n
13)
\n\tAIR 1997 SC 1873 in the case of Sham Lal Vs. State of Haryana with
\n\tBhagwan Das V. Sham Lal and Others<\/a>; and <\/p>\n
14)
\n\tAIR 1984 SC 1622 in the case of Sharad Birdhichan Sarda Vs. State of
\n\tMaharashtra.\n<\/p>\n
At the end of arguments, as
\n\tregards appellant No.1-original accused No.1 is concerned, Mr.Dagli
\n\thas pressed this appeal only qua quantum of sentence. He has
\n\tsubmitted that entire evidence on record go to show that it was
\n\twithin the knowledge of father, mother and brother of the deceased
\n\tthat before marriage, financial condition of accused No.1 was not
\n\tgood and only looking to his educational background, marriage of
\n\tBhavika was solemnized with accused No.1 after six months of
\n\tengagement. Therefore, it was within the knowledge of Bhavika that
\n\tshe has to stay with accused No.1 at Village Dhrangadhra and hence,
\n\taccording to him, it is to be presumed  that she was aware of the
\n\tlimitations of the Village. It is also submitted that immediately
\n\tafter the occurrence of incident, deceased was removed to the
\n\thospital by the accused No.1 and he tried to rescue the deceased in
\n\twhich, he also received burn injuries and had to be remained in
\n\thospital for 21 days. It is also submitted that the accused remained
\n\tin jail for more than four and half years and his jail conduct was
\n\tgood. In view of the above, it is requested that sentence may be
\n\treduced.\n<\/p>\n
Learned APP, Mr.L.R.Pujari, on the
\n\tother hand, submitted that there is ample evidence on record
\n\tconnecting the appellants with the charges framed. It is further
\n\tsubmitted that  after appreciating the entire evidence on record,
\n\tthe trial court has rightly came to the conclusion that both the
\n\taccused have committed the offence and the  appellants were
\n\tconvicted and sentenced. Since the said findings are just and
\n\tproper, it is submitted that they are not required to be interfered
\n\twith.  He has placed the jail record of the accused No.1 on record.\n<\/p>\n
This Court has gone through the
\n\trecord pertaining to the case as also the submission made on behalf
\n\tof the parties together with the impugned judgment and order of
\n\tconviction and sentence passed by the trial court.\n<\/p>\n
The main witness, the complainant,
\n\tAshok Umiyashankar Thakar, P.W.No.2, who has been examined at Ex.25,
\n\thas deposed in his examination-in-chief that even after the
\n\tcompromise with the appellant No.1, when his daughter was sent to
\n\tmatrimonial home before six months, the harassment by her husband
\n\tcontinued on account of Kariavar and also on account of not
\n\tconceiving a child. In his cross-examination, he has admitted that
\n\tat the time of incident, his daughter and his son-in-law were
\n\tstaying in rented premises at Dhrangadhra. It is also admitted by
\n\thim that since her birth, she enjoyed good economical condition and
\n\tas appellant No.1 was educated, marriage of his  daughter was
\n\tsolemnized with him. He has also admitted that in 2005, treatment of
\n\this daughter and son-in-law was going on. It is denied that he had
\n\tnot stated before the Police that mother-in-law also tortured for
\n\tdemand of kariavar.\n<\/p>\n
Brother of the victim, P.W.No.3,
\n\tKamalbhai Ashokbhai Thakar, who has been examined at Ex.27 has
\n\tdeposed that during last six months of the incident, on 7-8
\n\toccasions, phone calls were received from his sister complaining
\n\tabout the harassment from her husband and mother-in-law for less
\n\tkariavar and not being able to conceive. However, in his
\n\tcross-examination, he has admitted that he has not stated before the
\n\tpolice about the ill-treatment of his sister due to depression on
\n\taccount of death of his sister.\n<\/p>\n
Mother of the victim, P.W.No.4,
\n\tChandben, wife of Ashokbhai who was examined at Ex.29, has deposed
\n\tthat though assurance was made by husband and mother-in-law of her
\n\tdaughter, her daughter used to state about the continued harassment
\n\tfrom husband and mother-in-law. She has admitted in her
\n\tcross-examination that her daughter was sent to her matrimonial home
\n\tat her free will.  She has also admitted that she has not stated in
\n\tpolice statement that her daughter has not committed suicide and was
\n\tset ablaze. She has also admitted that after treatment of her
\n\tdaughter at Rajkot, she carried five months of pregnancy.\n<\/p>\n
\tThe
\n\tInvestigating Officer, PSI, Mr.Mansukhbhai Bhaganji, P.W.No.7 who
\n\thas been examined at Ex.35 has deposed that statements of witnesses
\n\trecorded in Sanosara Village show that six months prior to the date
\n\tof incident, appellant No.2 resides at Village Sanosara with her
\n\thusband and on the date of incident, she came with her husband on
\n\thearing about the news of incident. He has also deposed that he
\n\tnoticed during investigation that appellant No.1 had also received
\n\tburn injuries while trying to save the victim. He has also deposed
\n\tthat presence of  appellant No.2 with appellant No.1 in last six
\n\tmonths was found from the papers of statement recorded by ASI,
\n\tMr.Vikramsinh, but he did not make any investigation nor recorded
\n\tany further statement. He has also deposed that on the date of
\n\tincident or 3-4 days prior to the date of incident, no dispute or
\n\taltercation  between the husband wife was found during the course of
\n\tinvestigation.  He has also deposed that during the course of
\n\tinvestigation, it was found that except kariavar, nothing was given
\n\tas Dahej during the marriage life and as per application Ex.44,
\n\tkariavar was given back.   He has also deposed that soon before the
\n\tincident and after she was taken from matrimonial home, no
\n\taltercation was found in his investigation. He has also deposed that
\n\tas no ill-treatment of the deceased by the accused was found from
\n\tthe statements of neighbours, they were not cited as witnesses.\n<\/p>\n
\tDr.Pragnesh
\n\tJ.Khedawala from whom treatment was taken by the victim was examined
\n\tas a defense witness No.1. He has deposed that Vijay Krushnalal and
\n\tthe victim used to come to him for treatment and Vijay Krushnalal
\n\twas treated by him.\n<\/p>\n
\tAnother
\n\twitness examined by the defense is Mr.Sharadbhai Nanalal Thakkar,
\n\tD.W.No.2 at Ex.61. He has deposed that articles were delivered to
\n\tthe parents of the deceased in his presence.\n<\/p>\n
\tIt is required
\n\tto be noted that the accused No.1-husband of the deceased has stated
\n\tin his further statement recorded under Sec.313 Cr.P.C<\/a>. that the
\n\tfact of his financial condition not being good before the marriage
\n\twas within the knowledge of father and mother of the deceased and
\n\tBhavika was got married with him by her parents only considering
\n\this educational background. He has also stated that due to his poor
\n\teconomic condition, he was unable to fulfill most of the
\n\trequirements of the deceased and, therefore, the deceased might have
\n\tcommitted suicide. He has also stated that his sperm cell was not
\n\tsufficient for the deceased to conceive. He has also stated that as
\n\tengagement of brother of the deceased was fixed with the daughter of
\n\tone Mandakiniben against the will of deceased, after four days of
\n\tthe engagement, she committed suicide. It is also stated that
\n\taccused No.2, his mother, was not residing with him and was residing
\n\tat Sanosara Village with his father when the incident took place.\n<\/p>\n
\tThe accused
\n\tNo.2 has also stated in her further statement that at the time of
\n\tincident, she  was residing with her husband at Village Sanosara and
\n\tthe deceased was feeling unhappy as the deceased was unable to
\n\tconceive because of defect of her son and as financial condition of
\n\ther son was not good, the deceased committed suicide.\n<\/p>\n
\tThe accused
\n\thave examined four witnesses namely, Dr.Pragnesh J.Khedawala as
\n\tD.W.No.9 at Ex.59, who gave treatment to accused No.1 and Bhavika as
\n\tBhavika was not able to conceive; Sharadbhai Nanalal Thakar as
\n\tD.W.No.2 at Ex.61; D.W.No.3 Ladkuben Dhankubhai at Ex.63 and
\n\tPanchabhai Nagjibhai as D.W.No.4  at Ex.64.\n<\/p>\n
\tAs per the
\n\tevidence of Dr.Pragnesh, the accused No.1 and Bhavika came to his
\n\thospital for medical examination and after investigation,  it was
\n\tfound that accused No.2 was not producing sufficient count of sperm
\n\tand, therefore,  Bhavika was unable to conceive and  curatin was
\n\talso carried out on Bhavika. He has also deposed that accused No.1
\n\tcame for treatment in 2005 and 2006 and lastly on 12-7-2006 with
\n\tBhavika. He has also deposed that even after treatment, the accused
\n\tNo.1 could not produce sufficient count of sperm and that was the
\n\tonly reason disabling Bhavika from conceiving.\n<\/p>\n
\tSharadbhai
\n\tNanalal Thakar, D.W.No.2,  has deposed that he was serving in
\n\tNagarpalika and is rendering service in his community. As per his
\n\tevidence, he has also attended funeral ceremony of Bhavika and on
\n\t23-7-2006, father, mother and other relatives of Bhavika were called
\n\tat the house of Vijaybhai when police was also present and in
\n\tpresence of meadiator, a writing was prepared and signatures were
\n\talso obtained of the persons present there and after preparing list
\n\tof articles of kariavar, articles were handed over to the
\n\tcomplainant. He identified his signature in the said writing and
\n\tstated that the complainant, father of the deceased and
\n\tP.W.2-brother of the deceased also signed  the said document.\n<\/p>\n
\tD.W.No.3
\n\tLadkuben Dhankubhai has deposed that she is residing at Sanosara
\n\tVillage with her husband. As per her evidence, father of accused
\n\tNo.1-Krishnalal Pathak along with his wife, accused No.2- Kanchanben
\n\twas residing at Sanosara as their neighbour. She has deposed that
\n\twhen Vijay telephoned at her house,  she called Kanchanben to attend
\n\tthe phone and Kanchanben talked with the deceased on the day of
\n\tincident. As per her evidence, husband of accused No.2 Krishnalal
\n\tPathak  was doing ‘Yajman Vruti’ (religious vidhis performed by
\n\tBrahmins).\n<\/p>\n
\tPanchabhai
\n\tNagjibhai, D.W.No.4  has deposed that he is residing at Sanosara. As
\n\tper his evidence, accused No.2 along with her husband Krishnalal
\n\tPathak is residing in his house as a tenant at a monthly rent of
\n\tRs.100\/- As per his evidence, before 6-7  months of the incident,
\n\taccused No.2 was residing at Sanosara with her husband-Krishnalal
\n\tPathak, who was doing ‘Yajman Vruti’ and police recorded his
\n\tstatement.\n<\/p>\n
\tIt has come
\n\tout from the evidence of aforesaid witnesses that father of accused
\n\tNo.1 and husband of accused No.2 was doing ‘Yajman Vruti’ by staying
\n\tat Village Sanosara. It has also come out from the evidence of
\n\tInvestigating Officer  during the course of investigation that
\n\taccused No.2 was residing at Sanosara Village  since last 6-8 months
\n\tof the date of incident.  In the said circumstances, when husband of
\n\tthe accused No.2 was residing at Sanosara, then naturally accused
\n\tNo.2, who is his wife, would also be staying with him. Merely
\n\tbecause defense witnesses 3 and 4 were examined by the accused,
\n\ttheir evidence could not thrown out straightaway by labelling them
\n\tas got up witnesses especially when their evidence inspire
\n\tconfidence in the mind of the Court.  It is in the evidence of
\n\tD.W.No.3,  Ladkuben Dhankubhai, that she is residing at Sanosara and
\n\tis a neighbour of accused No.2. Nothing has come out from the
\n\tcross-examination of this witness to suggest that she is a got up
\n\twitness or is she giving false evidence. D.W.No.4, Panchabhai
\n\tNagjibhai, who is also residing at Sanosara, has stated that
\n\tKrishnalal Pathak, father of accused No.1, is residing with the
\n\taccused No.2 in his house as a tenant  at a monthly rent of Rs.100\/-
\n\tNothing has come out from the cross-examination of this witness
\n\twhich would falsify his evidence.\n<\/p>\n
\tConsidering
\n\tthe entire evidence on record including the evidence of prosecution
\n\twitnesses, I.O. as well as defense witnesses,  in the opinion of
\n\tthis Court, prosecution has failed to prove that the accused No.2
\n\twas residing with accused No.1 and Bhavika at Dhrangadhra when the
\n\tincident in question took place. When a doubt has been created in
\n\tthe mind of the court about the stay of accused No.2 with the
\n\taccused No.1 and Bhavika at Dhrangadhra, question does not arise to
\n\tattribute any role on the accused No.2 as alleged by the
\n\tprosecution. Thus, this Court is of the opinion that the prosecution
\n\thas failed to prove any charge against the accused No.2. The Trial
\n\tcourt has not discussed the evidence of Investigating Officer and as
\n\tdiscussed above, without discussing the evidence on record,
\n\tstraightaway  rejected the evidence adduced by the defense witnesses
\n\t which otherwise inspires confidence. In view of the above, the
\n\ttrial court has committed an error in convicting the accused No.2
\n\tand, therefore,  the impugned judgment and order of conviction and
\n\tsentence qua the accused No.2 requires to be quashed and set aside
\n\tand she is required to be acquitted of all the charges levelled
\n\tagainst her.\n<\/p>\n
As
\n\tfar as accused No.1 is concerned, learned advocate, Mr.Dagli has
\n\trestricted his arguments on the point of quantum of sentence. Hence
\n\tI would not like
\n\tto reproduce or discuss the entire evidence which are on record as
\n\tthe same remained unchallenged. This Court is also in complete
\n\tagreement with the reasons adopted and the conclusions arrived at by
\n\tthe learned trial court in the impugned judgment so far as the
\n\tconviction of the appellant No.1 is concerned. However, the
\n\tquestion to be considered is as to whether the appellant No.1 in the
\n\tgiven facts and circumstances of the case is entitled to reduction
\n\tof sentence which has been awarded by the trial court or not.\n<\/p>\n
In this connection, reference will
\n\thave to be made to the decisions rendered in (1) Nasir v. State of
\n\tUttar Pradesh<\/a> reported in AIR 2010 SUPREME COURT 1926, the Hon’ble
\n\tApex Court, in an offence under Secs.399 and 402 of IPC<\/a>, considering
\n\tthe fact that the incident is of 29 years old, reduced the sentenced
\n\t from five years to the period of six months already undergone; (2)
\n\tAIR 2009 SUPREME COURT 675 in the case of Ishwar Singh v. State of
\n\tMadhya Pradesh<\/a>, the Hon’ble Apex Court in an offence under Sec.307
\n\tof IPC<\/a> reduced the sentence to the period already undergone in view
\n\tof compromise and being the first offence; (3)Ghasita Sahu v. State
\n\tof Madhya Pradesh<\/a> reported in AIR (Criminal) 277, wherein the Apex
\n\tCourt, considering the poor background of the accused reduced the
\n\tsentence from 5 years to one already undergone(about 4 years as
\n\tnoticed by the Apex Court) and also reduced the fine from
\n\tRs.20,000\/- to Rs.10,000\/- and imposed the default sentence of six
\n\tmonths and (4) Shanti Lal v. State of M.P<\/a>. reported in 2007(2) EFR
\n\t702, wherein in para 36 the Apex Court has observed that the accused
\n\tappellant is very poor person and it was his first offence and
\n\tconsidering that fact reduced the sentence, and (5) Balwinder Singh
\n\tvs. Asstt. Commissioner, Customs and Central Excise reported in
\n\t2005(2) EFR 420 = AIR 2005 SC 2917) wherein considering the fact
\n\tthat the accused was a first time offender, sentence of 14 years of
\n\timprisonment imposed by the Courts below was reduced to minimum
\n\tprescribed under the Act that of 10 years.\n<\/p>\n
Reference is also required to be
\n\tmade on the decisions of the Hon’ble Apex Court in the cases of
\n\tJetha Ram v. State of Rajasthan<\/a> reported in (2006) 9 SCC 255,
\n\tMurugesan and Ors. v. Ganapathy Velar<\/a>, reported in (2001) 10 SCC 504
\n\tand Ishwarlal v. State of M.P<\/a>., reported in JT 1988 (3) SC 366 (1)
\n\twherein while taking into account the fact of compromise between the
\n\tparties, reduced sentence to the one already undergone.\n<\/p>\n
\tIt is to be
\n\tnoted that as per the jail record, behaviour of the accused No.1 is
\n\tgood. This is the first offence committed by him. He has no criminal
\n\tantecedence. Considering the evidence on record and considering the
\n\tfacts that deceased Bhavika was removed by the accused No.1 to the
\n\thospital to save her life and in this incident, accused No.1 has
\n\talso received burn injuries and remained in hospital for 21 days and
\n\talso considering the fact that the accused No.1 remained in jail
\n\tmore than four and half years in jail,  taking into consideration
\n\this jail conduct, if sentence of the accused No.1 is reduced to the
\n\tperiod he has already undergone in jail, ends of justice would be
\n\tmet.\n<\/p>\n
\tThus, this
\n\tappeal is allowed in part. The impugned judgment and order dated
\n\t18-1-2008 passed by the learned Additional Sessions Judge,
\n\tDhrangadhara, in Sessions Case No.6 of 2007 is quashed and set aside
\n\tqua the appellant No.2-original accused No.2. The appellant
\n\tNo.2-accused No.2-Kanchanben Pathak is therefore acquitted of all
\n\tthe charges levelled against her. However, as far as  the appellant
\n\tNo.1-original accused No.1 is concerned, while confirming his
\n\tconviction, the sentence imposed on the appellant No.1 is
\n\treduced to the period he has already undergone.   Both the accused
\n\tare on bail and hence, their bail bonds shall stand cancelled.  The
\n\timpugned judgment and order dated 18-1-2008 passed by the learned
\n\tAdditional Sessions Judge, Dhrangadhara, in Sessions Case No.6 of
\n\t2007 stands modified to the aforesaid extent.\n<\/p>\n
\tOffice shall
\n\tsend back the records and proceedings to the trial court forthwith.\n<\/p>\n
\t\t\t\t\t\t\t[M.D.SHAH,J.]<\/p>\n
    radhan <\/p>\n
\t\t   \u00a0\u00a0\u00a0<\/p>\n
\t\t   Top<\/p>\n","protected":false},"excerpt":{"rendered":"
Gujarat High Court Vijaykumar vs Heard Learned Advocate on 17 October, 2011 Author: Md Shah, Gujarat High Court Case Information System Print CR.A\/842\/2008 15\/ 15 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 842 of 2008 For Approval and Signature: HONOURABLE MR.JUSTICE MD SHAH ========================================================= 1 Whether Reporters of Local Papers […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[16,8],"tags":[],"class_list":["post-267381","post","type-post","status-publish","format-standard","hentry","category-gujarat-high-court","category-high-court"],"yoast_head":"\nVijaykumar vs Heard Learned Advocate on 17 October, 2011 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/vijaykumar-vs-heard-learned-advocate-on-17-october-2011\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Vijaykumar vs Heard Learned Advocate on 17 October, 2011 - 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