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Gujarat High Court · body

2015 DIGILAW 477 (GUJ)

State of Gujarat v. Mamad Jusub

2015-04-24

R.R.TRIPATHI, SONIA GOKANI

body2015
Judgment Sonia Gokani, J. 1. Criminal Appeal No. 1071 of 1996 has been preferred by the appellant-State under section 378(1) and (3) of the Code of Criminal Procedure, 1973 (hereinafter referred to as 'the Code'), against the judgment and order of acquittal dated September 30, 1996, passed by the learned Additional Sessions Judge, Gondal, District Rajkot in Sessions Case No. 5 of 1995, insofar as the learned Judge by the said judgment acquitted the respondent-accused from the charge of offence punishable under section 498(A) of the Indian Penal Code, 1860. Criminal Appeal No. 1073 of 1996 has also been preferred by the appellant-State under section 377 of the Code for enhancement of the sentence rendered on September 30, 1996 by the learned Additional Sessions Judge, Gondal, District Rajkot in Sessions Case No. 5 of 1995. 2. The brief facts leading to filing of the present appeals are as under: "2.1 The respondents-original accused Nos. 1 and 2 were charged and tried for the offences punishable under sections 307, 498(A), 504 read with 114 of the Indian Penal Code. It is the case of the prosecution that on account of matrimonial dispute that the respondent No. 1 had with his wife, the complainant-Zarina, when she was pregnant with twins, a heated exchange of words resulted into the respondent No. 1 inflicting knife blows to his wife; and the original accused No. 2 used to instigate the respondent No. 1 and also used to abuse the complainant. 2.2 Due investigation led to filing of the chargesheet and committal of the case to the Court of Sessions, where the Court charged both the accused of the aforementioned charges on December 21, 1995. 2.3 When the accused pleaded not guilty to the charge, the prosecution chose to examine in all 19 witnesses and also recorded further statements of both the accused and on the strength of the submissions made by the rival sides, the judgment and order came to be rendered on September 30, 1996, resulting into acquittal of the accused No. 2 and conviction of the respondent No. 1-original accused No. 1 for the offence punishable under section 307 of the Indian Penal Code, for which he is sentenced to undergo rigorous imprisonment for a period of two years and a fine of Rs. 500/-, and in default of payment of fine, to undergo rigorous imprisonment for further period of one month. 500/-, and in default of payment of fine, to undergo rigorous imprisonment for further period of one month. It emerges from the record that the respondent No. 1 has already undergone the sentence for a period of 1 year-11 months-12 days. 2.4 Aggrieved by such judgment and order of acquittal acquitting the accused for the offence punishable under section 498(A) of the Indian Penal Code and of punishing the respondent No. 1 for the offence punishable under section 307 only for two years, these appeals have been preferred." 3. We have heard extensively Ms. Chetna Shah, learned Additional Public Prosecutor and Shri Pratik Barot, learned counsel appearing for the respondents, who has been appointed by the High Court Legal Services Committee to appear on behalf of the respondents-accused. 4. Ms. Chetna Shah, learned Additional Public Prosecutor, has fervently urged before us that not only the complainant, but her close relatives like father, sister have supported the case of the prosecution in toto. It not only gets proved that the respondent-accused had continued to met out cruelty upon his wife by quarrelling with her and denying her the amount of subsistence, but such dispute had also led the wife to leave the matrimonial home. She further urged that with the indulgence of the family, she started residing together and she was conceiving twins. On the fateful day, her family members had gathered to work out the amicable solution qua their matrimonial ties. At that stage, the husband after being enraged by the demand of Rs. 25/- per day by the complainant-wife for subsistence, inflicted blows of knife on the vital part of the body of the complainant-wife and he in toto inflicted five blows on her. She further urged that surprisingly also, both, the husband and wife, were residing separately. Not only under the instigations of original accused No. 2, he used to give insufficient food to the wife, but he also used to abuse the victim, beat her up, and had also driven the complainant away along with her daughter and twins in her womb and thus, she had suffered a lot. Section 498(A) of the Indian Penal Code requires indulgence and further, the punishment of two years under section 307 of the Indian Penal Code is hopelessly less. She, therefore, urged to allow both the appeals preferred by the State and pass the order accordingly. 5. Section 498(A) of the Indian Penal Code requires indulgence and further, the punishment of two years under section 307 of the Indian Penal Code is hopelessly less. She, therefore, urged to allow both the appeals preferred by the State and pass the order accordingly. 5. A contrario sensu, Mr. Pratik Barot, learned counsel appearing on behalf of respondent-accused, urged this Court that no appeal is preferred against the judgment and order of conviction, but once the Court has admitted the appeals of the State and looked into the evidence that had been adduced before the trial Court, it will be open for the accused to challenge the aspect of the conviction. He urged that five years before the incident, the marriage of the complainant with the respondent No. 1 had taken place. Within one year, the daughter Afsana was born out of the said wedlock. There was though dispute between the parties, they started residing together. He urged that it was in the fit of anger, such an act has been committed by the respondent No. 1 and there was no intention to kill the wife. He further urged that the Court needs to consider as to the nature of injuries inflicted, the weapon held by the accused, etc. When three injuries out of five were simple in nature and when practically the entire sentence has been undergone, the Court may not interfere with such sentence after a span of about 18 years. He has also relied on the decision in the case of in re Balan and another, reported in 1974 Cr.L.J. 857 and another decision in the case of Pritam Chauhan v. State (Govt. of NCT Delhi, reported in, AIR 2014 SC 2553 . 6. Having thus heard both the sides and having considered the entire evidence, which has been adduced before the trial Court, it is to be noted at the outset that there is no challenge to the judgment and order of conviction by preferring any appeal. We are in agreement with the submission of Shri Barot that it is open for the respondent-convict to challenge such decision once the appeals preferred by the State under a particular provision and for enhancement, are under consideration. 7. We are in agreement with the submission of Shri Barot that it is open for the respondent-convict to challenge such decision once the appeals preferred by the State under a particular provision and for enhancement, are under consideration. 7. The vital would be to consider the deposition of PW-2-complainant herself, who is an injured eyewitness and she is supported by the evidence of her family members i.e. PW-3 to PW-6. 8. PW-2, complainant-Zarina Mamadbhai, who has been examined vide Exhibit 24, has stated in her deposition that five years prior to the said incident, her marriage took place with the respondent No. 1. Her sister resided in the neighbourhood and her in-laws were residing 100 feet away from her matrimonial home. Afsana, daughter of the complainant, was born out of the said wedlock with the respondent No. 1. No one had gone to fetch the complainant after the birth of a daughter. A year after compromise was effected at the behest of her uncle-in-law Kasambhai, the complainant started residing at Rasulpura with her husband. The main plank of dispute was on account of the fact that the husband was not giving the expenses to run household. He was giving her Rs. 12/- per day and that was insufficient to run the household and that was the cause of dispute. Whenever she used to demand money for household expenditure, she was being beaten up by the respondent No. 1. On October 17, 1994 also, when she demanded the household expenditure, her husband inflicted the knife blows - three on her stomach, one on biceps and one on cheek. Her sister Hamida, Aamadbhai and Sayraben were present at the time of incident, who saved her. Her brother, father and mother were also present at that time. She was removed to Dhoraji Dispensary by her brother and parents. Thereafter, she was shifted to Junagadh Hospital, where she was treated for 15 days. Her complaint was recorded by the police. Panchnama of scene of offence was drawn and so was the panchnama of clothes worn by the respondent-accused and the complainant. She also identified the muddamal article 'knife' used by the respondent-convict. She was having twins in her womb when the incident occurred and thereafter, she gave birth to these twins. Her husband was working as a labourer in a transport company and he had no addiction. She also identified the muddamal article 'knife' used by the respondent-convict. She was having twins in her womb when the incident occurred and thereafter, she gave birth to these twins. Her husband was working as a labourer in a transport company and he had no addiction. Her husband's argument was that if he earned Rs. 12/- to Rs. 15/- per day, he also has to sustain his parents and it was difficult for him to give Rs. 25/- per day to her. Those who had indulged into dispute and got them compromised also had ensured that once she goes to her matrimonial home, whatever her husband earns, she would be given the same. She came to her matrimonial home, the previous night from her parents and the respondent-convict gave her Rs. 12/- on that day, which she refused to take and when the husband returned in the evening, she abstained herself from dinner. Between 09-00 p.m. and 09-30 p.m., they had heated exchange of words on the issue of household expenditure. The complainant demanded Rs. 25/- per day and he showed his inability and both of them got angry and in a fit of anger, the respondent No. 1-convict inflicted knife blows. On hearing the hue and cry, her sisters and brother-in-law rushed to the place and her husband fled away leaving the knife. A first information report, Exhibit 41, was given to the police at 00-30 hours on October 18, 1994, which totally supports her version set out in her deposition. 9. PW-4, Hamida Ibrahimbhai, who is the sister of the complainant, has been examined vide Exhibit 26. According to her, at the time of first delivery, the complainant Zarina stayed with her parents for about five months and thereafter, on having compromised with the respondent-accused, she was taken back to her matrimonial home. On the date of incident, according to this witness, six blows with knife were inflicted upon Zarina. Her parents were also sitting at the house of Babusha Mamadsha Fakir. They all had gathered there for the purpose of compromise. She also agreed that her sister used to demand an amount of Rs. 25/- per day for household expenditure and the respondent-convict was unable to meet with such demand. The discussion went on for about half an hour and thereafter, when this witness went to her home for making tea, Zarina followed her for the same. She also agreed that her sister used to demand an amount of Rs. 25/- per day for household expenditure and the respondent-convict was unable to meet with such demand. The discussion went on for about half an hour and thereafter, when this witness went to her home for making tea, Zarina followed her for the same. Thereafter, this witness heard a sound of Zarina and found that Zarina was drenched in blood and had fallen down. She rushed to her sister and her husband was also there and thereafter, she was removed to the hospital. 10. PW-5, Aamadbhai Hussainbhai-husband of PW-4, who has been examined vide Exhibit 27, also has given his statement on the line as far as the chronology of events is concerned. At the house of the father-in-law of the complainant-Zarina, they all had gathered for bringing an amicable solution of the matrimonial disputes between the complainant and the respondent-convict. When both the complainant and her sister PW-4 Hamidaben left for their residence to prepare tea for everyone, the respondent-convict chased them and gave knife blows to Zarina. As per this witness, the respondent-convict had inflicted three blows with knife on the stomach of Zarina and three blows with knife on her face. Hue and cry was made, on account of which he reached to the place along with his father-in-law and mother-in-law and in the meantime, the respondent-convict fled away from the said place. The complainant was removed to Dhoraji Dispensary and later to Junagadh Hospital. In the cross-examination of this witness, nothing much has come out, except the fact that they all had gathered at the house of Jusab Ismail and the complainant had fallen flat on the floor drenched in blood and the respondent-convict had fled away from the place. 11. PW-6, Ibrahim Ismail, who has been examined vide Exhibit 28, is the father of the complainant-Zarina. According to him, five years after the marriage of the complainant, this incident took place. She had one daughter and after the incident, she gave birth to twins. Because of the delivery of a girl child at the time of her first delivery, the in-laws never came to receive her. Due to compromise effected at the instance of the uncle-in-law Shri Hasambhai, the complainant had returned to her matrimonial home. Though the respondent-husband had ensured to give an amount of Rs. Because of the delivery of a girl child at the time of her first delivery, the in-laws never came to receive her. Due to compromise effected at the instance of the uncle-in-law Shri Hasambhai, the complainant had returned to her matrimonial home. Though the respondent-husband had ensured to give an amount of Rs. 25/- per day for household expenditure, he was not abiding by the same and, therefore, the disputes arose between them. They all were sitting at the house of Babusha Fakir when the incident occurred. Due to shouting, they all rushed to the place and found the complainant-Zarina injured. They took the complainant-Zarina firstly to Dhoraji Hospital and later on at Junagadh Hospital. That was the time when the complainant-Zarina and her sister Hamida went to make tea. The respondent-convict had fled away from the place. There was sufficient light when the incident took place, according to this witness. 12. PW-7, Dr. Ushaben Girishkumar Trivedi, who has been examined vide Exhibit 29, was serving as a Medical Officer when the complainant-Zarina was taken to the hospital at 09-40 p.m. on October 17, 1994. The history was of receiving blows with knife. The injuries sustained by the complainant are explained in detail. There were in all four injuries. She agreed that the muddamal knife was capable of causing injuries sustained on the person of the victim-complainant. There would have been complications if the injury No. 1 would not have been treated in time, which would have led to her death. The certificate is issued, which is at Exhibit 30, by treating the complainant. In her cross-examination, this witness has admitted that looking to the injuries, it appears that one side of the edge of the weapon was sharp and another side was blunt. She has further admitted that injury Nos. 2, 3 and 4 were simple injuries. The foetus was 12 to 14 weeks old. The injury No. 2 was with sharp cutting weapon and injury No. 5 was with a hard and blunt substance. She agreed that all the injury Nos. 1 to 4 on one side were with sharp edge and on the other side were with blunt edge. She was also referred to Junagadh Hospital as Exploratory Laparotomy surgery was needed. She also admitted that there is also possibility of injury with sharp cutting weapon. This substantiates the oral version. She agreed that all the injury Nos. 1 to 4 on one side were with sharp edge and on the other side were with blunt edge. She was also referred to Junagadh Hospital as Exploratory Laparotomy surgery was needed. She also admitted that there is also possibility of injury with sharp cutting weapon. This substantiates the oral version. It is also emphasised that the injury No. 1 above the umbilicus covering the whole of abdominal wall from where the omentum had come out, if was not treated in time, she could have died. The injury certificate dated November 29, 1994, reflected all these injuries. 13. PW-8, Dr. Arjun Gorabhai Rathod, who has been examined vide Exhibit 31, was working as a Medical Officer in Junagadh Hospital, when the complainant-Zarina was referred from Referral Hospital at Dhoraji. This witness has also deposed that on October 18, 1994, the Laparotomy was performed on the complainant. It was essentially to find out whether internal part was affected. He also has deposed that if the complainant would not have been treated in time, it would have led to her death. Her small intestine was also damaged. 14. PW-19, Dr. Kirit Ambalal Mithawala, who has been examined vide Exhibit 56, was the Civil Surgeon at Junagadh Hospital, who had performed the laparotomy on the complainant at midnight 12-15 a.m. He has stated that because of knife blows, the small intestine had perforation admeasuring 5 m.m. Her treatment had continued till October 27, 1994. He also opined that she would have died if within 12 hours she ought not to have been treated. No infection was found during the course of surgery. Much has been asked to this doctor with regard to non-mentioning of 5 m.m. perforation on small intestine and he agreed that such noting would have been necessary. Be that as it may, collectively the version of all the three Medical Officers indicate seriousness of the injury having happened due to sharp cutting weapon and particularly, the knife which as per the Investigating Officer was discovered at the instance of the respondent-convict. 15. Neither the panch witness in whose presence the clothes of the victim had been collected nor the evidence of panchas i.e. PW-11 and PW-12, in whose presence scene of offence panchnama was drawn, has been examined by the prosecution. 16. 15. Neither the panch witness in whose presence the clothes of the victim had been collected nor the evidence of panchas i.e. PW-11 and PW-12, in whose presence scene of offence panchnama was drawn, has been examined by the prosecution. 16. PW-13, Nitinkumar Dhirajlal, panch of discovery panchnama, in whose presence the knife has been discovered at the instance of the convict, has not chosen to support the version of the prosecution. All these documents have been proved through the deposition of the PW-18, Mafatsinh Punjaji-Investigating Officer. 17. PW-17, Razak Gafarbhai, who has been examined vide Exhibit 47, is the panch of panchnama of recovery of the clothes of the convict, which have been recovered by the Police. According to him, he and other panchas have signed after the panchnama was drawn by the Police. PW-18, Mafatsinh Punjaji, Police Sub-Inspector, Dhoraji Police Station, investigated such first information report recording the scene of offence panchnama by collecting blood stained samples and the sample from the place of offence. The clothes of the convict were also recovered by carrying out due panchnama in presence of the panchas. All the panchnamas have been proved through this witness. He also had sent the samples to the Forensic Science Laboratory, which included the clothes of the accused and victims, as also the samples collected from the scene of offence. Parcel No. 1 indicated in the report of the Forensic Science Laboratory contained a saree, blouse and petticoat. All contained blood group "O" of human origin on them. The shirt and pant of the respondent-convict were in Parcel No. 4, which also contained blood group "O" of human origin. The soil collected from the scene of offence also contained blood group "O" of human origin. The physical examination indicates that the cut marks No. 1, 2, 3 and 8 on sari, as also on the blouse could be possible with knife, whereas the cut marks No. 4,5,6,7, 9 and 10 were not possible with knife. 18. PW-15, Ramjibhai Jivabhai-Police Sub-Inspector at Junagadh Police Station, who has been examined vide Exhibit 40, has stated in his deposition that when he received Yadi from Police Station Officer, Junagadh, he went to Government Hospital, Junagadh, where the first information report was recorded as given by the complainant-Zarina, attracting the provisions of sections 307, 498(A), 504 and 114 of the Indian Penal Code. He then sent the same to Dhoraji Police Station after giving it "zero" number. He also took the left hand thumb impression of the complainant on the first information report. 19. PW-16, Hasmukhray Vrujlal Mehta-Police Head Constable, who has been examined vide Exhibit 43, has stated that he was performing his duty on October 17, 2014 as In-charge of Dhoraji City Police Station being the PSO, when he received the documents through the Police Head Constable Shri Ramjibhai Shamatbhai and, therefore, he registered the first information report after making entry in Station Diary bearing No. 6/1994 against both Mamad Jusab and Jusab Ismail. 20. Further statement of the respondent-convict if is looked at, the respondent-convict has simply denied all the questions put to him and has not explained anything also in the question where he needed to further explain something. Sum total of the entire evidence had led the trial Court to believe that the charges levelled against the respondent-husband got proved beyond reasonable doubt. The matrimonial dispute was the cause which resulted into the wife choosing to go to her parental home as she was unable to sustain the family with a meager sum of Rs. 12/- per day. She insisted to double the amount to the tune of Rs. 25/- per day. It is not to be forgotten that Afsana-daughter was already born out of the said wedlock, who was not welcome and, therefore, after her birth, the in-laws had chosen not to go to receive her. Both the families chose to sit with each other to bring an amicable end to the dispute. Thereafter, the complainant was sent back to her matrimonial home and the problem persisted which had necessitated both the sides to arrange for settlement once again and during such meeting, when the complainant-Zarina with her sister Hamida, had gone to make tea for the family members, her husband followed her and gave blows with knife knowing fully well that she was at an advanced stage of pregnancy. The first injury was serious enough to bring out the omentum. It was a surgical intervention carried out at Junagadh Hospital which could save her life. The injury No. 1, which was a stab wound 1 cm. lateral right and 1 cm. above the umbilicus admeasuring 2.5 cm. X 0.5 cm. The first injury was serious enough to bring out the omentum. It was a surgical intervention carried out at Junagadh Hospital which could save her life. The injury No. 1, which was a stab wound 1 cm. lateral right and 1 cm. above the umbilicus admeasuring 2.5 cm. X 0.5 cm. X 0.5 cm., was a grave injury and according to the doctors, it could have led to the death of the victim. The clothes of the victim as well as of the convict, both had presence of blood having blood group "O" of the human origin, which would possibly indicate that the blood group of victim was "O" and on account of serious injuries that she sustained, the clothes of the convict also had presence of her blood. More so, because there was no injury found on the person of the convict nor is it the case and further, the panchnama of arrest of the appellant-convict also does not indicate such injury. 21. Considering the delicate parts on which the victim sustained grievous injuries and the weapon used for causing such injuries at the time when the complainant-injured victim was having advance stage of pregnancy, coupled with the opinion of the medical experts that such injuries were capable of causing death if the timely medical intervention was not available, would surely lead this Court to hold that the trial Court committed no error in holding that the prosecution succeeded in proving the charge under section 307 of the Indian Penal Code. Two elements are necessary for attracting the offence punishable under section 307, namely mens rea and actus reus. Any act done with the intention or knowledge and under such circumstances if the death is caused, the person would be guilty of murder. 22. If under this provision the conviction is to be sustained, the nature of injuries caused would have considerable importance in arriving at the findings as to the intention of the person concerned. Such intention needs to be gathered from all the circumstances as may get proved on record, that also can be ascertained without the nature of actual injuries sustained. This provision also makes a distinction between the act of the person of the accused and also the outcome of his act. Such intention needs to be gathered from all the circumstances as may get proved on record, that also can be ascertained without the nature of actual injuries sustained. This provision also makes a distinction between the act of the person of the accused and also the outcome of his act. It is not necessary for holding the person guilty to prove that his act has invariably resulted into inflicting injuries capable of leading to death. What is essentially to be seen by the Court is whether the act was done with the intention or knowledge, irrespective of its result under the circumstances specified in the provision. So what is vital is to get the intention coupled with such overt act for executing the intent. The mere fact that the injury actually inflicted by the accused did not injure any vital organ of the victim itself is not sufficient to take out provision of section 307 of the Indian Penal Code. This position was highlighted by the Apex Court in the case of Vitthal Jadav v. State of Maharashtra, reported in (2004) Cr.L.J. 1786 (S.C.). What can be deduced from the discussion above is that for proving the charge under section 307, the prosecution needs to prove that the accused committed an act which was done with an intention or with the knowledge of causing and under such circumstances that, if he by that act would have caused death, he would be guilty of murder. For attracting this provision, intent or knowledge is the most essential part, which can be gathered from the nature of injury, the part of body on which the injury is inflicted, the nature of injuries and all the attending circumstances. 23. Applying this legal principle for the purpose of apprehending as to whether section 307 of the Indian Penal Code gets attracted, as discussed hereinabove, the trial Court has rightly held the ingredients of section 307 of the IPC having been proved beyond reasonable doubt, when the injuries were inflicted on defenceless wife, who was carrying an advance pregnancy at the time when the parties were negotiating and during the course of such negotiations, when she was going to prepare tea for all the persons concerned, it is very unlikely that a person would arrive at a place of negotiations with his own family with knife. In fact, according to all the witnesses, talk was going on in a very cordial atmosphere and at that stage, to inflict the injury on the vital part with knife by surreptitiously approaching the victim from behind and also keeping in mind the organ of body of the victim involved, would surely attract the ingredients of section 307 of the IPC, which gets established beyond reasonable doubt. 24. We notice that the trial Court has punished the accused by awarding sentence of rigorous imprisonment for a period of two years and a fine of Rs. 500/-, and in default of non-payment of fine, further rigorous imprisonment for one month. It was gathered from the respective lawyers that the respondent-accused has already undergone imprisonment for a period of one year and 11 months and both the parties are residing separately and the children are with the victim, and as mentioned hereinabove, has chosen not to challenge the judgment and order of conviction and sentence. It is only at the time of resisting the enhancement appeal of the State that discussion on all the issues have been requested for and, therefore, the same has necessitated the detailed findings. As far as the appeal against the judgment and order of acquittal qua the father of the respondent-convict is concerned, as rightly held by the trial Court, in absence of any evidence on record qua the role played by the respondent-father-in-law, he has been rightly given the benefit of doubt. Nothing could be furnished to reverse the judgment and order of acquittal qua the respondent No. 2-father-in-law. 25. As the guilt of the respondent No. 1-convict is proved beyond reasonable doubt, we also need to consider whether the period of punishment of two years is sufficient or whether the punishment inflicted does not commensurate with the guilt proved. 26. As section 307 of the IPC provides that punishment for a term, which may extend to 10 years and also fine, and in the event of any hurt caused to any person, the offender can be made liable either to imprisonment of life or to such punishment as specified in the proviso. It would be oblivious of the fact the injury would have lead to the death of the victim, as she was at an advance stage of carrying twins. It would be oblivious of the fact the injury would have lead to the death of the victim, as she was at an advance stage of carrying twins. It is not emerging from record that whether the mother had undergone any medical test for them to know that she was carrying on twins in her womb. However, it is abundantly clear that her being pregnant was very apparent and known to one and all and, therefore, if such death would have happened, this could have resulted not only one life, but minimum three lives and the respondent-convict surely had intention as well as knowledge that this would have resulted into end of three lives. We are also conscious of the fact the couple had already one child at the time of such incident. Despite of this, when he has chosen to act in such a cruel fashion and committed the offence on his own wife in complete disregard to his legal and moral duty of protecting her and their future children, two years' punishment surely is insufficient to commensurate with the guilt proved. In view of the aforementioned facts and circumstances of the case, it would be apt to impose at least seven years rigorous imprisonment for commission of the offence punishable under section 307 of the Indian Penal Code. 27. For the foregoing reasons, Criminal Appeal No. 1071 of 1996 preferred by the appellant-State against the judgment and order acquitting the respondents-accused from the charge of offence punishable under section 498(A) of the Indian Penal Code is dismissed. So far as Criminal Appeal No. 1073 of 1996, preferred by the appellant-State against the judgment and order of sentence for enhancement of the sentence is hereby partly allowed. The impugned judgment and order of conviction remains unaltered. The impugned order of sentence dated September 30, 1996, passed by the learned Additional Sessions Judge, Gondal, District Rajkot in Sessions Case No. 5 of 1995 imposing sentence of only two years' rigorous imprisonment upon the respondent No. 1-husband is hereby modified and enhanced to the extent that the respondent No. 1-husband now shall undergo rigorous imprisonment for seven years for the offence punishable under section 307 of the Indian Penal Code. The respondent No. 1 be given the benefit of set off. The rest part of the impugned judgment and order remains unaltered.