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2016 DIGILAW 1411 (GUJ)

State of Gujarat v. Laljibhai Ambabhai Chauhan

2016-07-20

G.B.SHAH

body2016
JUDGMENT : G.B. Shah, J. 1. Present appeal, under Section 377 of the Criminal Procedure Code, 1973 (for brevity, 'the Code'), filed by the State for enhancement of sentence, is directed against the judgment and order dated 20/12/2000, passed by the learned Additional Sessions Judge, Jamnagar, in Sessions Case No. 130 of 1997, whereby, the respondent herein - original accused came to be convicted for the offences punishable under Sections 498-A and 306 of the Indian Penal Code, 1860 (for brevity, 'the IPC') and for the offence punishable under Section 498-A of the IPC, he was sentenced to undergo imprisonment for two years and a fine of Rs.200/- and in default of payment of fine, to undergo further simple imprisonment for two months and for the offence punishable under Section 306 of the IPC, he was sentenced to undergo imprisonment for three years and a fine of Rs.300/- and in default of payment of fine, to undergo, further simple imprisonment for three months. Both the sentences were to run concurrently. For the sake of convenience, the parties are, hereinafter, referred to as per their original status. 2. Brief facts of the prosecution case are that prior to four - five months of the date of the incident in question i.e. 18/08/1997, the accused and deceased Nanduben started residing together as husband and wife. However, thereafter, the accused allegedly started giving physical and mental torture to the deceased keeping suspicion about her character. On the day of incident i.e. 18/08/1997 at about 6:00 p.m. also, the accused allegedly harassed and tortured the deceased on the aforesaid count and hence, as the deceased being fed up of that, took the extreme step and committed suicide by pouring kerosene and set her ablaze. The accused, thereby, committed the offence alleged against him, for which a complaint came to be lodged. 2.1 Pursuant to the complaint, investigation was carried out. After investigation, charge-sheet was filed and as the case was triable by the Court of Sessions, it was committed to the Sessions Court at Jamnagar. The trial Court framed charge against the accused. The accused pleaded not guilty to the charge and claimed to be tried. Therefore, the prosecution produced oral as well as documentary evidence. After investigation, charge-sheet was filed and as the case was triable by the Court of Sessions, it was committed to the Sessions Court at Jamnagar. The trial Court framed charge against the accused. The accused pleaded not guilty to the charge and claimed to be tried. Therefore, the prosecution produced oral as well as documentary evidence. In order to bring home the charge against the accused, the prosecution has examined following witnesses and also produced several documentary evidence, as under:- ORAL EVIDENCE S/n. Name of Witness Exh. 1 PW-1 Dr. Gulabray Solanki 20 2 PW-2 Govindbhai Tapubhai Pipariya 22 3 PW-3 Rameshbhai Kanjibhai 25 4 PW-4 Sureshbhai Naranbhai 26 5 PW-5 Damjibhai Makanbhai 28 6 PW-6 Jethiben Damjibhai 29 7 PW-7 Kantibhai Somabhai Patel 32 8 PW-8 Dr. Manusukhbhai Ganeshbhai Gabani 36 9 PW-9 Dr. Navinchandra Kanjibhai Hariya 42 10 PW-10 Dr. Kapil Pankajbhai Thakkar 46 11 PW-11 Ramsing Naranji Chauhan, IO 49 DOCUMENTARY EVIDENCE S/n. Document Exh. 1 Inquest Panchnama 11 2 Copy of post mortem form 12 3 Panchnama of place of offence 13 4 Receipt as to handing over the dead body 14 5 Report sent to the Mamlatdar office for recording DD 15 6 Injury certificate of the accused 16 7 Extract of Station Diary 17 8 Report as to giving treatment to the accused and issuing certificate 18 9 Report as to issuing MLC Certificate of the accused 19 10 MLC case papers of the accused 21 11 Police Yadi to Executive Magistrate for recording DD of Nanduben, the deceased 23 12 Dying Declaration of Nanduben, the deceased 24 13 Extract of Vardhi No. 701/97 34 14 True copy of Post Mortem Report of Nanduben, the deceased 37 15 Injury certificate of the deceased 43 16 Medical Papers of the deceased 47 17 Original complaint of the deceased together with addition section 50 18 Yadi as to registering the offence 51 2.2 At the end of the trial, Further Statement of the accused under Section 313 of Code was recorded in which, he pleaded not guilty and false implication. Thus, after recording above-referred Further Statement and hearing the arguments on behalf of prosecution and the defence, the learned Sessions Judge convicted the accused, as aforesaid, by impugned judgment and order. Thus, after recording above-referred Further Statement and hearing the arguments on behalf of prosecution and the defence, the learned Sessions Judge convicted the accused, as aforesaid, by impugned judgment and order. 2.3 Being aggrieved and dissatisfied with the aforesaid judgment and order passed by the Sessions Court, the State has preferred the present appeal for enhancement of sentence. 3. Heard Mr. K.L. Pandya, the learned Additional Public Prosecutor for the State and Mr. P.B. Khambholja, the learned advocate for the respondent-accused. 3.1 Mr. Pandya, the learned Additional Public Prosecutor, for the State while supporting the impugned judgment and order so far as conviction part to the accused is concerned, contended that when the offence is already proved by the prosecution against the accused beyond reasonable doubt, the trial Court has committed a grave error in imposing lesser punishment to the accused. He submitted that looking to the provisions of the extant law itself, it is clear that maximum punishment provided for the offence punishable under Section 306 of the IPC is imprisonment of ten years and accordingly, the trial Court has committed an error in awarding lesser sentence for such a grave offence without assigning any cogent and sufficient reasons. He, taking this Court through the oral as well as documentary evidence on record, contended that considering the gravity of offence and the way in which it was committed and in spite of the fact that the trial Court has believed the ingredients of the offence punishable under Section 498-A and Section 306 of the IPC have been proved, the sentence imposed for the offence punishable under Section 306 of the IPC is on a much lower side for which, no finding appears to have been given by the learned trial Judge. He submitted that when the guilt of the accused has clearly been established and the offence is proved beyond reasonable doubt and conviction is imposed, this Court may interfere in appeal and impose adequate punishment, more particularly, when the accused has not challenged the conviction by way of filing an appeal against the impugned judgment and order. 4. As against this, Mr. 4. As against this, Mr. Khambholja, the learned advocate for the accused, while opposing the present appeal, invited attention of the Court to para 43 of the impugned judgment and order and submitted that as observed by the learned trial Judge, the accused had already undergone imprisonment of 03 years, 04 months and 02 days when the order imposing sentence was passed. He submitted that it may be that the accused has not challenged the conviction, however, simultaneously it is also not true that no findings have been given by the trial Court while imposing the sentence as it has been specifically observed by the trial Court that the accused is behind the bar for more than three years and as a reformative measure, the trial Court has imposed such a sentence, which is just and proper. He also submitted that the incident is of the year 1997 and the trial had concluded in the year 2000 and considering the lapse of more than 15 years, this Court may not enhance the sentence as the accused may have settled in life and when he has already undergone the period of sentence awarded by the trial Court for more than three years besides when the trial Court has set an example from which, the accused must have learnt the lesson. Making above submissions, he requested this Court not to interfere in appeal and dismiss the same. 5. I have examined the matter carefully and gone through the evidence on record. I have re-appreciated and re-evaluated the evidence on the touchstone of the latest decisions of the Hon'ble Apex Court. It is undisputed that the span for which the accused and the deceased lived together as a husband and wife, is less than six months; it was the second marriage of the deceased - wife, however, the fact remains that the accused had doubted the character of the deceased which prompted the deceased to take such an extreme step and commit suicide and accordingly, the ingredients of the offence punishable under Section 306 of the IPC have been duly proved. On going through the impugned judgment and order, the learned trial Judge has discussed the same at length. On going through the impugned judgment and order, the learned trial Judge has discussed the same at length. This being an appeal for enhancement of sentence, preferred by the State and in absence of any appeal filed by the accused against conviction, I deem it proper not to further enter into the merits of the case, more particularly, when the offence is already proved by the prosecution by adducing convincing and reliable evidence and the learned trial Judge, after taking all the pains, has come to such a conclusion and imposed conviction. The question remains, as to whether, in the facts and circumstances of the case and under the provisions of the extant law, the learned trial Judge was right in imposing such a sentence for the offence punishable under Section 306 of the IPC. On going through the impugned judgment and order, it appears that as a part of reformative measures, the learned trial Judge has imposed such a sentence, however, no other plausible reason has been recorded. Under the circumstances, when the learned trial Judge has specifically come to the conclusion that the offences punishable under Sections 498-A and 306 of the IPC have been proved by the prosecution beyond reasonable doubt and the ingredients of the said offences have been proved, considering the gravity of offence and the way in which it was committed, in my view, the learned trial Judge ought not to have imposed such a lesser punishment, more particularly, when the extant law provides for maximum punishment for ten years for the offence punishable under Section 306 of the IPC and accordingly, the sentence imposed by the trial Court appears to be disproportionate with the offence which has been committed by the accused. 5.1 In this regard, a decision of the Hon'ble Apex Court in the case of Raj Bala v. State of Haryana and Others in Criminal Appeal Nos. 1049 to 1050 of 2015, decided on 18/08/2015, in para 1 and 2 may be referred to, relevant portion of the same reads as under: "1. In Gopal Singh v. State of Uttarakhand, while focusing on the gravity of the crime and the concept of proportionality as regards the punishment, the Court had observed:-- "Just punishment is the collective cry of the society. In Gopal Singh v. State of Uttarakhand, while focusing on the gravity of the crime and the concept of proportionality as regards the punishment, the Court had observed:-- "Just punishment is the collective cry of the society. While the collective cry has to be kept uppermost in the mind, simultaneously the principle of proportionality between the crime and punishment cannot be totally brushed aside. The principle of just punishment is the bedrock of sentencing in respect of a criminal offence. A punishment should not be disproportionately excessive. The concept of proportionality allows a significant discretion to the Judge but the same has to be guided by certain principles. In certain cases, the nature of culpability, the antecedents of the accused, the factum of age, the potentiality of the convict to become a criminal in future, capability of his reformation and to lead an acceptable life in the prevalent milieu, the effect - propensity to become a social threat or nuisance, and sometimes lapse of time in the commission of the crime and his conduct in the interregnum bearing in mind the nature of the offence, the relationship between the parties and attract ability of the doctrine of bringing the convict to the value-based social mainstream may be the guiding factors. Needless to emphasis, these are certain illustrative aspects put forth in a condensed manner. We may hasten to add that there can neither be a straitjacket formula nor a solvable theory in mathematical exactitude. It would be dependent on the facts of the case and rationalized judicial discretion. Neither the personal perception of a Judge nor self-adhered moralistic vision nor hypothetical apprehensions should be allowed to have any play. For every offence, a drastic measure cannot be thought of. Similarly, an offender cannot be allowed to be treated with leniency solely on the ground of discretion vested in a court. The real requisite is to weigh the circumstances in which the crime has been committed and other concomitant factors which we have indicated hereinbefore and also have been stated in a number of pronouncements by this Court. On such touchstone, the sentences are to be imposed. The discretion should not be in the realm of fancy. It should be embedded in the conceptual essence of just punishment." [Emphasis added] 2. Seven years prior to that, in Shailesh Jasvantbhai v. State of Gujarat, it has been held that:-- "7. On such touchstone, the sentences are to be imposed. The discretion should not be in the realm of fancy. It should be embedded in the conceptual essence of just punishment." [Emphasis added] 2. Seven years prior to that, in Shailesh Jasvantbhai v. State of Gujarat, it has been held that:-- "7. The law regulates social interests, arbitrates conflicting claims and demands. Security of persons and property of the people is an essential function of the State. It could be achieved through instrumentality of criminal law. Undoubtedly, there is a cross-cultural conflict where living law must find answer to the new challenges and the courts are required to mould the sentencing system to meet the challenges. The contagion of lawlessness would undermine social order and lay it in ruins. Protection of society and stamping out criminal proclivity must be the object of law which must be achieved by imposing appropriate sentence. Therefore, law as a cornerstone of the edifice of "order" should meet the challenges confronting the society. Friedman in his Law in Changing Society stated that: "State of criminal law continues to be-as it should be-a decisive reflection of social consciousness of society." Therefore, in operating the sentencing system, law should adopt the corrective machinery or deterrence based on factual matrix. By deft modulation, sentencing process be stern where it should be, and tempered with mercy where it warrants to be. The facts and given circumstances in each case, the nature of the crime, the manner in which it was planned and committed, the motive for commission of the crime, the conduct of the accused, the nature of weapons used and all other attending circumstances are relevant facts which would enter into the area of consideration. 8. Therefore, undue sympathy to impose inadequate sentence would do more harm to the justice system to undermine the public confidence in the efficacy of law, and society could not long endure under such serious threats. It is, therefore, the duty of every court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed, etc. It is, therefore, the duty of every court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed, etc. This position was illuminatingly stated by this Court in Sevaka Perumal v. State of T.N." [Emphasis supplied] And again:- "The court will be failing in its duty if appropriate punishment is not awarded for a crime which has been committed not only against the individual victim but also against the society to which the criminal and the victim belong. The punishment to be awarded for a crime must not be irrelevant but it should conform to and be consistent with the atrocity and brutality with which the crime has been perpetrated, the enormity of the crime warranting public abhorrence and it should "respond to the society's cry for justice against the criminal." 5.2 In the above backdrop, I am of the opinion that the learned trial Judge has erred in imposing lesser punishable for such a grave offence and accordingly, present appeal deserves to be allowed and the sentence imposed upon the respondent-accused for the offence punishable under Section 306 of the IPC having found inadequate, requires to be enhanced and the interest of justice would serve if the same is enhanced to imprisonment of six years, instead of three years as has been awarded by the trial Court and to that extent, the impugned judgment and order is requires to be modified. 6. In view of the aforesaid discussion, present appeal, filed by the appellant-State for enhancement of sentence, succeeds and the impugned judgment and order dated 20/12/2000, passed by the learned Additional Sessions Judge, Jamnagar, in Sessions Case No. 130 of 1997 is modified to the aforesaid extent and it is held that, for the offence punishable under Section 306 of the IPC, the respondent-original accused shall have to undergo imprisonment of six years instead of three years, as has been imposed by the trial Court. The respondent - original accused is reported to be on bail and accordingly, he is directed to surrender to custody within 12 weeks from today to undergo the remaining sentence failing which, the concerned investigating agency shall take necessary actions in accordance with law. His bail bond shall stand cancelled. The respondent-accused be given set off of the period he has already undergone. His bail bond shall stand cancelled. The respondent-accused be given set off of the period he has already undergone. The rest of the impugned judgment and order shall remain intact. The Registry to return the R&P to the trial Court forthwith.