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2015 DIGILAW 147 (GUJ)

Chhatrasinh Balusinh v. State of Gujarat

2015-02-05

K.J.THAKER

body2015
JUDGMENT : Kaushal Jayendra Thaker, J. 1. Criminal Appeal No. 1018/1997 has been preferred by the appellant-ori. Accused No. 1 under Sec. 374(2) of the Code of Criminal Procedure, against the judgment and order of conviction and sentence dated 27.8.1997 passed by the learned Addl. Sessions Judge, Court No. 4, Ahmedabad in Sessions Case No. 282/1991, whereby, the learned Judge has convicted the appellant under Sec. 498-A of IPC and sentenced to undergo R/I for one year and he is also convicted under Sec. 306 of IPC and sentenced to undergo R/I for four years. Criminal Appeal No. 969/1997 has been preferred by the appellants - ori. Accused No. 4, 5 and 7 under Sec. 374(2) of the Code of Criminal Procedure, against the judgment and order of conviction and sentence dated 27.8.1997 passed by the learned Addl. Sessions Judge, Court No. 4, Ahmedabad in Sessions Case No. 282/1991, whereby, the learned Judge has convicted the appellants under Sec. 498-A of IPC and sentenced to undergo S/I for one year, which is impugned in both these appeals. 2. The brief facts of the prosecution case is as under:-- "3.1 That the deceased Sonalba was married with the present appellant-ori. Accused No. 1 and the other co-accused also were living along with the present appellant and the deceased. It is the case of the prosecution that initially there was no complaint, however, a year prior to the incident, there were demand used to be raised by the relatives of the accused No. 1. It is further the case of the prosecution that there was stray incidents of beating were also revealed by the deceased to her parents amounts to physical cruelty. It is further the case of the prosecution that on the day of the incident i.e. on 7.3.1991, it was reported by anonymous person calling upon the Police and accordingly wardhi written to the effect that in Block No. 150/1180, Gujarat Housing Board, there is a woman lying in burnt condition, and that is how the Police came to know about the incident. That on the basis of visitation report, the PSO, Amraiwadi Police Station, had filed an A.D. Entry and yadi were sent to FSL as well as Executive Magistrate for inquest under Section 174 of the Code of Criminal Procedure. That on the basis of visitation report, the PSO, Amraiwadi Police Station, had filed an A.D. Entry and yadi were sent to FSL as well as Executive Magistrate for inquest under Section 174 of the Code of Criminal Procedure. The parents of the deceased remained present and also signed no objection for delivering dead body to the accused persons and later on, on third day the father of the deceased had filed the complaint for the offences punishable under Section 498A and 306 of IPC." 3. The accused came to be charge-sheeted before the Court of the learned Metropolitan Magistrate, Court No. 7, Ahmedabad for the alleged offence punishable under Section 498-A and 306 of IPC. The case was exclusively triable by the Court of Sessions, the learned Magistrate committed the case to the Court of Sessions, which was numbered as Sessions Case No. 282/1991. 4. The accused was charged vide at Ex. 12. The appellants - accused pleaded not guilty and claimed to be tried. 5. In order to bring home the charge leveled against the appellant- accused, the prosecution has examined the following witnesses:-- "1. PW-1 Sureshbhai Radheraman Ex. 42. 2. PW-2 Jaduji Maganji Ex. 46. 3. PW-3 Ratuji Magji Vaghela Ex. 47. 4. PW-4 Ganuji Maganji Chavda Ex. 48. 5. PW-5 Bakuba Jajuji Ex. 49. 6. PW-6 Dr. Pratik Ravjibhai Patel Ex. 50. 7. PW-7 Harshadbhai Mafatlal Patel Ex. 52. 8. PW-8 Gajanand Ambalal Thaker Ex. 53. 9. SP Mr. S.G. Bhati Ex. 58." 6. The prosecution has also produced the following documentary evidence before the trial Court. "1. Report u/S. 157 of Cr.P.C. Ex. 59. 2. Panchnama of articles seized from the place of incident Ex. 44. 3. Panchnama of scene of offence Ex. 43. 4. Copy of receipt Ex. 60. 5. Receipt of FSL Ex. 61. 6. Ravangi nondh Ex. 62. 7. Receipt Ex. 63. 8. PM Note Ex. 51. 9. FSL Report Ex. 65. 10. Complaint Ex. 57." 7. Thereafter, after examining the witnesses, further statement of the appellant-accused under Sec. 313 of Cr.P.C. was recorded in which the appellants-accused have denied the case of the prosecution. 8. After considering the oral as well as documentary evidence and after hearing the parties, learned Addl. 8. PM Note Ex. 51. 9. FSL Report Ex. 65. 10. Complaint Ex. 57." 7. Thereafter, after examining the witnesses, further statement of the appellant-accused under Sec. 313 of Cr.P.C. was recorded in which the appellants-accused have denied the case of the prosecution. 8. After considering the oral as well as documentary evidence and after hearing the parties, learned Addl. Sessions Judge, Ahmedabad vide impugned judgment and order dated 27.8.1997 held the appellants - accused guilty to the charge levelled against them under Sec. 498-A and 306 of IPC and convicted and sentenced the appellants accused, as stated above. 9. Being aggrieved by and dissatisfied with the impugned judgment and order of conviction and sentence passed by the learned Addl. Sessions Judge, Court No. 4, Ahmedabad, the present appellants have preferred both these appeals. 10. Heard Mr. Bhargav Bhatt and Mr. Dharmesh C. Gurjar learned Advocates for the appellants in both the appeals and Ms. Bhatt learned APP for the respondent-State in both the appeals. 11. Mr. Bhatt learned Advocate appearing for the appellant-accused has vehemently submitted that the evidence on record goes to show that the offence under Section 498Aor 306 of IPC is not made out, and therefore, the impugned judgment and order of conviction and sentence may be quashed and set aside and the appeal be allowed. Mr. Bhatt learned Advocate for the appellant has submitted that the trial Court has erred in believing the prosecution case and evidence on record. He has further submitted that the judgment and order of conviction is based on improper appreciation of the evidence of prosecution and based on improbabilities, and therefore, the same deserves to be quashed and set aside. Mr. Bhatt learned Advocate appearing for the appellant has further submitted that at the relevant time, i.e. in the year 1991, when the incident occurred, respondent No. 1 - Kamlaba Dolatsinh - ori. Accused No. 4, who has been held guilty, was 43 years of age, respondents No. 2 and 3- Vishnuba Balusinh & Tinuba alias Krishna Balusinh - ori. Accused No. 5 and 7 were sister-in-law, who were of very young age and they have now settled in their life and having young children, and therefore, it is requested by Mr. Bhatt to grant them benefit of probation even without calling the report of the Probationer Officer. 12. Per contra, learned APP Ms. Accused No. 5 and 7 were sister-in-law, who were of very young age and they have now settled in their life and having young children, and therefore, it is requested by Mr. Bhatt to grant them benefit of probation even without calling the report of the Probationer Officer. 12. Per contra, learned APP Ms. Bhatt has taken this Court through the entire evidence on record and submitted that the impugned judgment and order passed by the learned trial Judge is just and proper. Ms. Bhatt learned APP further submitted that in view of the evidence on record, it cannot be said that the learned trial Judge has committed any error in convicting and sentencing the accused, and therefore, the present appeal deserves to be allowed. 13. I have gone through the oral as well as documentary evidence produced on the record. I have read the oral evidence of prosecution witness-complainant and also perused the charge framed against the appellants. The request made by Mr. Bhatt learned Advocate appearing for the appellants to grant probation to the respondents of Criminal Appeal No. 969 of 1997 is just and proper and the accused are required to be granted benefit of probation for a period of two years, as for a period of 23 years, no untoward incident has been reported, though the said aspect is vehemently objected by Ms. Bhatt learned APP. While recording the finding of facts by the learned trial Judge, there were minor quarrel, and therefore, in that view of the matter, the conviction and sentence under Section 498-A of IPC imposed upon the present appellants is maintained. However, they are given the benefit of probation under Section 4 of the Probation of Offenders Act, looking to the age, passage of time and their recent family status. 14. This takes this Court to the appeal preferred by the husband of the deceased i.e. Criminal Appeal No. 1018/1997. On going through the entire record and going through the latest decision of the Apex Court in the case of Kuldeepkaur v. State of Uttarakhand, reported in (2014) 10 SCC 584 , I am not inclined to hold that the prosecution has failed to bring home the charge of abatement of suicide as just because the marriage span was less than 7 years. The circumstances which are akin to this case will not permit this Court to hold that the accused is guilty of the offence under Section 306 of IPC. In that view of the matter, the conviction under Section 306 of IPC is quashed and set aside, however, conviction under Section 498-A is confirmed but the sentence imposed upon the appellant-accused is modified to the extent as undergone and he is ordered to pay fine of Rs. 10,000/- within a period of 8 weeks from today. Out of the said amount, Rs. 2000/- shall go to the State Authorities as fine, whereas, remaining amount of Rs. 8000/- shall go to the State Legal Services Authority and the said amount shall be used for upliftment of poor children in orphanage in Gujarat. 15. In the result, Criminal Appeal No. 1018/1997 is partly allowed. The conviction under Section 306 of IPC is quashed and set aside, however, conviction under Section 498-A is confirmed but the sentence imposed upon the appellant-accused is modified to the extent as undergone and he is ordered to pay fine of Rs. 10,000/- within a period of 8 weeks from today. Out of the said amount, Rs. 2000/- shall go to the State Authorities as fine, whereas, remaining amount of Rs. 8000/- shall go to the State Legal Services Authority and the said amount shall be used for upliftment of poor children in orphanage in Gujarat. If the fine is not paid within stipulated time, the sentence will revive and Jail Authority to see that the appellant shall undergo the sentence imposed by the trial Court. Bail and bail bond stands cancelled. R & P to be sent back to the trial Court forthwith. Criminal Appeal No. 969/1997 is also partly allowed. The conviction and sentence under Section 498-A of IPC imposed upon the present appellants is maintained. However, they are given the benefit of probation under Section 4 of the Probation of Offenders Act, looking to the age, passage of time and their recent family status. Bail and bail bond stands cancelled. R & P to be sent back to the trial Court forthwith.