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2015 DIGILAW 1266 (GUJ)

State of Gujarat v. Sardarbhai Mafabhai Vaadi

2015-12-09

M.R.SHAH, Z.K.SAIYED

body2015
JUDGMENT : M.R. Shah, J. 1.0. Feeling aggrieved and dissatisfied with the impugned judgment and order passed by the learned Principal District Judge, Gandhinagar passed in Sessions Case No. 104 of 2009, by which, the learned trial Court has while convicting the respondent - original accused for the offence punishable under Section 304 part I of the Indian Penal Code imposed the sentence of 5 years RI with fine of Rs. 1,000/- and in default to undergo further 15 days SI, the appellant State of Gujarat has preferred the present Appeal for enhancement of the punishment and sentence imposed by the learned trial Court. 2.0. At the outset, it is required to be noted that as such the conviction by the learned trial Court convicting the original accused for the offence punishable under Section 304 Part I of the Indian Penal Code is not challenged by the accused and therefore, it has attained the finality. Under the circumstances, this Court is not required to consider in the present appeal whether the learned trial Court was justified in convicting the accused for the offence punishable under Section304 Part I of the Indian Penal Code or not. Therefore, the only question which is required to be considered by this Court is whether in the facts and circumstances of the case and while convicting the accused for the offence punishable under Section 304 Part I of the Indian Penal Code, the learned trial Court is justified in imposing the sentence of 5 years RI with fine of Rs. 1000/- and in default to undergo further 15 days SI ? 3.0. Shri Hardik Soni, learned Additional Public Prosecutor has vehemently submitted that in the facts and circumstances of the case and the manner in which the offence has been committed by the accused and he killed his wife by knife and the injuries sustained by the deceased which ultimately proved to be fatal, the learned trial Court has materially erred in imposing the sentence of five years RI only. 3.1. It is vehemently submitted by Shri Soni, learned APP that sentence imposed by the learned trial Court while convicting the accused for the offence punishable under Section 304 Part I of the Indian Penal Code can be said to be appropriate and insufficient looking to the offence committed by the accused. 3.2. 3.1. It is vehemently submitted by Shri Soni, learned APP that sentence imposed by the learned trial Court while convicting the accused for the offence punishable under Section 304 Part I of the Indian Penal Code can be said to be appropriate and insufficient looking to the offence committed by the accused. 3.2. It is further submitted that it is cardinal principle of law and in penology that the Court is required to impose the appropriate sentence/punishment which shall be commensurate with the offence committed. In support of his above submission, he has relied upon the following decisions of the Hon'ble Supreme Court: "1. ALISTER ANTHONY PAREIRA v. STATE OF MAHARASHTRA, (2012) 2 SCC 648 ; 2. STATE OF MADHYA PRADESH v. BABLU NATT, (2009) 2 SCC 272 ; 3. STATE OF PUNJAB v. PREM SAGAR AND OTHERS, (2008) 7 SCC 550 ;" Making above submission and relying upon the above decisions, it is requested to allow the present Appeal preferred by the State for enhancement of sentence imposed by the learned trial Court and to award maximum sentence as provided under Section 304 Part I of the Indian Penal Code. 4.0. Present appeal is vehemently opposed by Shri Umang Oza, learned advocate for the original accused. He has submitted that in the facts and circumstances of the case the sentence imposed/awarded by the learned trial Court can be said to be appropriate and adequate punishment commensurate with the offence committed by the accused. 4.1. It is submitted that while considering to impose appropriate and adequate punishment/sentence even the conduct of the accused is also required to be considered. It is submitted that in the present case even the accused tried to save the deceased. It is submitted that even the offence was committed on the spur of the moment and on a very flimsy ground. It is submitted that therefore, in the facts and circumstances of the case and more particularly when the injury was sustained upon the deceased on the backside of the body, awarding 5 years sentence for the offence punishable under Section 304 Part I of the Indian Penal Code cannot be said to be so inadequate which calls for the interference of this Court. Making above submissions, it is requested to dismiss the appeal and confirm the judgment and order passed by the learned trial Court. 5.0. Making above submissions, it is requested to dismiss the appeal and confirm the judgment and order passed by the learned trial Court. 5.0. Heard the learned advocates for the respective parties at length. Perused the impugned judgment and order passed by the learned trial Court. As observed herein above, conviction of the accused by the learned trial Court for the offence punishable under Section 304 Part I of the Indian Penal Code is not challenged by the accused and therefore, as such accused has accepted his conviction for the offence punishable under Section 304 Part I of the Indian Penal Code. By impugned judgment and order, the learned trial Court has imposed the sentence of 5 years RI with fine of Rs. 1000/- and in default to undergo further 15 days SI for the offence under Section 304 Part I of the Indian Penal Code, which is challenged by the State contending inter alia that awarding 5 years RI for the offence under Section 304 Part I of the Indian Penal Code in the facts and circumstances of the case, can be said to be inappropriate and/or inadequate. Under the circumstances, the sole question which is posed for the consideration of this Court is with respect to proportionately of the punishment and sentence imposed by the learned trial Court. 6.0. It is not in dispute that death of the deceased was a homicidal death. It has been established and proved that because of the knife blow given by the accused the deceased who was his wife sustained injuries and immediately become unconscious and immediately thereafter she succumbed to the injuries and died. As per the medical evidence and the PM Report and the deposition of the doctor, the deceased sustained serious injuries on his back and other parts of body and bleeding profusely. 7.0. Considering the aforesaid facts and the manner in which the offence was committed by the accused and in view of fact that knife was used with force, it cannot be said that awarding 5 years sentence can be said to be adequate and/or appropriate and/or commensurate with the offence committed by the accused. 8.0. In the case of ALISTER ANTHONY PAREIRA (Supra), the Hon'ble Apex Court had an occasion to consider, as to what would be the proper, just and adequate sentence. 8.0. In the case of ALISTER ANTHONY PAREIRA (Supra), the Hon'ble Apex Court had an occasion to consider, as to what would be the proper, just and adequate sentence. It is observed and held, therein, that one of the prime objectives of imposing just, proper and adequate sentence is commensurate with the nature and gravity of the crime and the manner in which the crime is committed. In Paragraphs-84 and 85, the Hon'ble Apex Court has observed and held as under; "84. Sentencing is an important task in the matter of crime. One of the prime objectives of the criminal law is imposition of appropriate, adequate, just and proportionate sentence commensurate with the nature and gravity of crime and the manner in which the crime is done. There is no straitjacket formula for sentencing an accused on proof of crime. The courts have evolved certain principles: the twin objective of the sentencing policy is deterrence and correction. What sentence would meet the ends of justice depends on the facts and circumstances of each case and the court must keep in mind the gravity of the crime, motive for the crime, nature of the offence and all other attendant circumstances. 85. The principle of proportionality in sentencing a crime-does is well entrenched in criminal jurisprudence. As a matter of law, proportion between crime and punishment bears most relevant influence in determination of sentencing the crime-does. The court has to take into consideration all aspects including social interest and consciousness of the society for award of appropriate sentence." 8.1. In the case of STATE OF PUNJAB v. PREM SAGAR AND OTHERS (Supra), the Hon'ble Apex Court has observed that, although, a wide discretion has been conferred upon the Courts, same must be exercised judiciously. It would depend upon the circumstances in which the crime is committed and the mental state, age of the accused etc. are also relevant. After referring to the decisions of the Hon'ble Supreme Court in (1991) 3 SCC 471 as well as in (2006) 2 SCC 359 , it is held that it is the duty of every Court to award proper sentence, having regard to the nature of offence and the manner in which it is executed or committed etc.. 8.2. After referring to the decisions of the Hon'ble Supreme Court in (1991) 3 SCC 471 as well as in (2006) 2 SCC 359 , it is held that it is the duty of every Court to award proper sentence, having regard to the nature of offence and the manner in which it is executed or committed etc.. 8.2. Here, it would also be relevant to refer to a recent decision of the Apex Court in SATISHKUMAR JAYANTILAL DABGAR v. SATE OF GUJARAT, (2015) 7 SCC 359 , while considering the issue, as to whether, in the facts and circumstances of the case, the learned trial Court was justified in inflicting the punishment of rigorous imprisonment for three years with fine of Rs. 500/- and in default to undergo further rigorous imprisonment for six months on the accused for the offence punishable under Section 307 of the IPC. 8.3. Applying the ratio laid down by the Supreme Court in the aforesaid decisions to the facts of the case on hand, we are of the opinion that by inflicting the punishment/sentence of 5 years rigorous imprisonment and to pay fine Rs. 1000/- and in default to undergo 15 days SI, in the case of this nature, the learned trial Court has committed a grave error, which has resulted into miscarriage of justice by imposing inadequate sentence. In the facts and circumstances of the case, awarding at least 7 years RI can be said to be adequate and/or appropriate punishment which can be said to be commensurate with the offence committed by the accused. 9.0. In view of the above and for the reasons stated above, present appeal succeeds in part. The impugned judgment and order dated 28.4.2010 passed by the learned Principal District Judge, Gandhinagar passed in Sessions Case No. 104 of 2009 is hereby modified to the extent and while holding the respondent herein - original accused guilty for the offence punishable under Section 304 Part I of the Indian Penal Code original accused is directed to undergo 7 years RI with fine imposed by the learned trial Court including the default sentence maintained. In view of the above, appeal is allowed to the aforesaid extent. Time to surrender to undergo further remaining sentence as per the present judgment and order is granted upto 10.01.2016, failing which non bailable warrant be issued against the accused to undergo further remaining sentence.