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Gujarat High Court · body

2015 DIGILAW 1277 (GUJ)

Koli Manubhai Devabhai Bariya v. State of Gujarat

2015-12-14

RAJESH H.SHUKLA

body2015
JUDGMENT : Rajesh H. Shukla, J. 1. Criminal Appeal No. 115/2006 has been filed by the appellants-original accused Nos. 1, 2 and 3 against the impugned judgment and order rendered in Sessions Case No. 48/2000 by the Additional Sessions Judge, Veraval dated 28.12.2005 recording conviction of the appellants-accused for the offences under Sections 306 and 498(A) of the Indian Penal Code and sentencing rigorous imprisonment for five years and fine of Rs. 1,000/-, in default, to undergo rigorous imprisonment for six months for the offence under Section 306 of the Indian Penal Code and sentencing rigorous imprisonment for two years and fine of Rs. 500/-, in default, to undergo rigorous imprisonment for two months for the offence under Section498(A) of the Indian Penal Code. 2. Criminal Appeal No. 960/2006 has been filed by the State of Gujarat for enhancement of the sentence imposed by impugned judgment and order of conviction. It is required to be mentioned that the State had also filed an application, Exh.71 for adding charge for the offence under Section 302 of the Indian Penal Code before the Sessions Court, which came to be dismissed by an order dated 17.12.2005 after considering the reply by the defence at Exh.73. As it appears that the said application was filed at belated stage at the fag end of trial. 3. The facts of the case briefly summarized are that:- 3.1 As it transpires from the material and evidence on record, the appellant No. 1 (husband), the appellant No. 2 (father-in-law) and appellant No. 3 (younger brother-in-law) are alleged to have caused harassment to the sister of the complainant-victim, which led her to commit suicide. 3.2 Therefore offence being C.R. No. I-310/1999 was registered with Una Police Station for the offences under Sections 306 and 498(A) of the Indian Penal Code. 3.3 After the investigation was over, the chargesheet for the alleged offences came to be filed and as the offence was triable by the Court of Sessions, it was committed to the Court of Sessions, Veraval. 3.4 Thereafter, the Sessions Judge framed the charges and proceeded with the trial. 3.5 In order to bring home the charges leveled against them, the prosecution examined witnesses and also produced documentary evidence as mentioned in the impugned order. 3.4 Thereafter, the Sessions Judge framed the charges and proceeded with the trial. 3.5 In order to bring home the charges leveled against them, the prosecution examined witnesses and also produced documentary evidence as mentioned in the impugned order. 3.6 After recording of the evidence of the prosecution witnesses was over, the Sessions Judge recorded further statements of the accused under Section 313 of the Code of Criminal Procedure, 1973. 3.7 After hearing learned APP as well as learned advocates for the defence, the Sessions Judge passed impugned judgment and order recording conviction as stated therein. 4. It is this judgment and order which has been assailed by the appellants-original accused as also by the State of Gujarat by way of filing different appeals on the grounds stated in the memo of respective appeal. 5. It is required to be mentioned that when the appeal was called out, it has been informed by learned advocate, Shri Buch by placing on record the death certificates of the appellants-original accused Nos. 1 and 2 that the appellant Nos. 1 and 2 have expired. Therefore appeal qua them would stand abated and it would survive qua the appellant No. 3-original accused No. 3 (younger brother-in-law). 6. Learned advocate, Shri Buch referred to the material and evidence and testimony of witnesses and tried to submit that the allegations are of general in nature and no specific role can be said to have been attributed to the appellant-accused No. 3 and, therefore, the Court below has failed to appreciate the material and evidence while recording conviction of the appellant No. 3-original accused No. 3. He also referred to the testimony of witnesses on this aspect to support his submission and submitted that the deceased has committed suicide but the ingredients for the offence qua Section 306 or Section 498(A) of the Indian Penal Code cannot be said to have been established qua the appellant-original accused No. 3. He therefore submitted that he may be acquitted. 7. Alternatively, learned advocate, Shri Buch submitted that as the appellant Nos. 1 and 2-original accused Nos. 1 and 2 have expired, appeal stands abated qua them, however, the appellant No. 3-original accused No. 3, who was younger brother hardly about 20 years, would not be concerned for the matrimonial or domestic affairs of his brothers and quarrel between the brother and his wife. 1 and 2-original accused Nos. 1 and 2 have expired, appeal stands abated qua them, however, the appellant No. 3-original accused No. 3, who was younger brother hardly about 20 years, would not be concerned for the matrimonial or domestic affairs of his brothers and quarrel between the brother and his wife. He therefore submitted that by maintaining conviction, sentence may be reduced. He further submitted that he is also looking after the children of the deceased-brother and victim and, therefore, the Court may consider this aspect on humanitarian consideration. 8. Learned APP Shri Jani referred to the material and evidence and submitted that the application for adding offence under Section 302 of the Indian Penal Code was required to be given in light of the facts, which have been brought on record that it was not a case of suicide but homicidal death, which is also corroborated by the medical evidence. He pointedly referred to the medical evidence on this aspect. However he fairly stated that appellant Nos. 1 and 2 have expired and, therefore, appropriate order may be passed. 9. In view of these rival submissions, it is required to be considered whether the present appeal deserves consideration. 10. As it transpires on appreciation of material and evidence, conviction has been recorded for the offence under Sections306 and 498(A) of the Indian Penal Code. Admittedly, though report was made by the prosecution for adding charge for the offence under Section 302 of the Indian Penal Code, same has not been allowed by the Sessions Court itself. Therefore the conviction is confined to Sections 306 and 498(A) of the Indian Penal Code. However at the same time, the appellant No. 1-husband and the appellant No. 2-father-in-law both have expired pending appeal, for which, death certificates have been produced. Therefore the appeal would stand abated qua them. It is in these circumstances, the Court is required to consider the alternate submission made with regard to the reduction or modification of the sentence while maintaining conviction qua the appellant No. 3-original accused No. 3 (younger brother-in-law). As it appears from overall appreciation of material and evidence and the background of the facts, there is no specific allegations qua any active role for the offences by the appellant No. 3-original accused No. 3 (younger brother-in-law). 11. As it appears from overall appreciation of material and evidence and the background of the facts, there is no specific allegations qua any active role for the offences by the appellant No. 3-original accused No. 3 (younger brother-in-law). 11. Therefore without considering the appreciation of evidence in detail and also medical evidence with regard to the manner in which, the death of the victim has been caused, the interest of justice would require that the background of the facts may also be considered while appreciating the material and evidence. The appellant No. 3-original accused No. 3 would be a younger brother at the relevant point of time, who would not have much concern in the domestic affairs, particularly, matrimonial domestic quarrel or affairs of his brother and the victim. Further, he has been granted bail throughout considering the role or involvement of the appellant No. 3-original accused No. 3 even at the trial stage. It is also stated that he is looking after the children of the deceased-brother and the victim. Therefore having regard to the background of the facts as discussed above, the interest of justice would be served, if the alternate submission made by learned advocate, Shri Buch for reduction or modification of the sentence while maintaining conviction is accepted. 12. Therefore, without any further elaboration, while maintaining conviction of the appellant No. 3-original accused No. 3 as it is, the sentence deserves to be modified and reduced, which would meet the ends of justice. Therefore as the appeal qua original accused Nos. 1 and 2 is abated as they have expired. Looking to the peculiar facts of the case, sentence imposed upon the appellant No. 3-original accused No. 3 deserves modification and reduction. 13. In the circumstances, Criminal Appeal No. 115/2006 filed against the conviction by the appellants-original accused Nos. 1 to 3 is partly allowed. As stated above, the appellants-original accused Nos. 1 and 2 have expired and, hence, appeal qua them stands abated. The impugned judgment and order recording conviction of the appellant No. 3-original accused No. 3 (younger brother-in-law) is hereby confirmed. However, the order of sentence deserves modification and sentence shall stand reduced for the offence under Sections 306 and 498(A) of the Indian Penal Code. 14. 1 and 2 have expired and, hence, appeal qua them stands abated. The impugned judgment and order recording conviction of the appellant No. 3-original accused No. 3 (younger brother-in-law) is hereby confirmed. However, the order of sentence deserves modification and sentence shall stand reduced for the offence under Sections 306 and 498(A) of the Indian Penal Code. 14. Therefore, the appellant No. 3-original accused No. 3 is directed to undergo rigorous imprisonment for two years for the offence under Section 306 of the Indian Penal Code and rigorous imprisonment for one year for the offence under Section 498(A) of the Indian Penal Code. Both sentences should run concurrently. The appellant No. 3-original accused No. 3 is on bail and, hence, his bail bond shall stand cancelled and he is directed to surrender before the jail authority within a period of four weeks from today. 15. Criminal Appeal No. 960/2006 filed by the State of Gujarat for enhancement of the sentence shall also stand disposed of.