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2019 DIGILAW 252 (GUJ)

Himatbhai Mohanbhai Devgania v. State of Gujarat

2019-03-20

A.G.URAIZEE

body2019
JUDGMENT : A.G. URAIZEE, J. 1. The appellants have assailed the judgment and order of conviction dated 27.01.2003 passed by the learned Second Fast Track Court, Amreli, in Sessions Case No.271 of 2001, whereunder, they came to be convicted for the offence punishable under Sections 306, 498(A), 506(2), 306, 498(A) and 506(2) read with Section 114 of Indian Penal Code. 2. The prosecution case in brief against the appellants in brief as could be gathered from the impugned judgment are that the marriage of deceased-Meenaben was solemnized more than one year before the incident. She had return to her matrimonial home because of cruelty and ill treatment meted out her by the appellants. The appellant No.1-husband of the deceased used to threaten her that if she would not return to her matrimonial home, he would kill her and her father. Because of such threats, on 2.04.2000 when she was alone at her matrimonial home, she poured kerosene and set herself ablaze. She was taken to hospital at Sabarkudla, preliminary treatment was given. Thereafter, she was shifted to hospital at Amreli, where she gave the complaint in respect of this incident. Thereafter, during the treatment she succumbed to the burns injuries on 2.04.2000. 3. The appellants-original accused persons have preferred this appeal under Section 374 of the Code of Criminal Procedure, 1973 ("the Code" for short) to assail the judgment and order passed by the learned Second Fast Track Court, Amreli in Sessions Case No.271 of 2001 dated 27.01.2003, whereby and whereunder the learned Judge has convicted the appellants under Sections 306, 498(A), 506(2), 306, 498(A) and 506(2) read with Section 114 of Indian Penal Code and inflicted sentence as under: Nature of offence Sentence 306 r/w 114 of IPC (A-1) R.I. for 5 years, Fine of Rs.2000/-, IDSI for 3 months. 498(A) r/w 114 of IPC (A-1) R.I. for 1 year, Fine of Rs.1000/-, IDSI for 3 months. 506(2) r/w 114 of IPC (A-1) R.I. for 1 year, Fine of Rs.1000/-, IDSI for 3 months. 306 r/w114 of IPC (A-2 to 4) S.I. for 6 months, Fine of Rs.500/-, IDSI for 1 month. 498(A) r/w 114 of IPC (A-2 to 4) S.I. for 6 months, Fine of Rs.500/-, IDSI for 1 month. 506 (2) r/w 114 of IPC (A-2 to 4) S.I. for 6 months, Fine of Rs.500/-, IDSI for 1 month. All the sentences shall run concurrently. 4. 498(A) r/w 114 of IPC (A-2 to 4) S.I. for 6 months, Fine of Rs.500/-, IDSI for 1 month. 506 (2) r/w 114 of IPC (A-2 to 4) S.I. for 6 months, Fine of Rs.500/-, IDSI for 1 month. All the sentences shall run concurrently. 4. On conclusion of the investigation on the basis of the materials collected against them, as the investigating officer found a prima facie case against them, charge sheet came to be filed before the competent Court. The same was read over and explained to them they pleaded not guilty and claimed to be tried. The prosecution, therefore, adduced documentary and ocular evidence to prove the guilt of the accused persons. 5. Upon conclusion of the trial the statement under Section 313 of the Code of the accused persons came to be recorded. The trial Court, after considering the evidence on record, convicted the accused persons of the charges by the impugned judgment and order as above. 6. I have heard Mr. M.B. Parikh, learned advocate for the appellants and Mr. L.R. Pujari, learned Additional Public Prosecutor for the respondent. 7. The defacto-complainant, Dhirubhai Nanjibhai Gondaliya as well as the appellants-original accused persons are present in person in this Court. 8. Mr. Parikh, learned advocate for the appellants submits that the defacto complainant and the appellants are residing in the same locality and now relations between them are cordial. He, therefore, urged that looking to the cordial relations prevailing between the parties, this Court may show leniency with regards to sentence or any other appropriate order acquitting the appellants. 9. The defacto-complainant, Dhirubhai Nanjibhai Gondaliya, who is present in person in the Court confirms that relations between the parties are cordial and no untoward incident has occurred between them since the unfortunate incident which is the subject matter of the appeal. He has produced an affidavit wherein he also stated that after the occurrence of incident no untoward incident had happened and stated in the affidavit that appropriate order may be passed. The affidavit is taken on record. 10. Mr. Pujari, learned Additional Public Prosecutor submitted that the learned trial Judge has already shown leniency in favour of the appellants, the appellants are convicted under lessor offence. The affidavit is taken on record. 10. Mr. Pujari, learned Additional Public Prosecutor submitted that the learned trial Judge has already shown leniency in favour of the appellants, the appellants are convicted under lessor offence. In his submission, no further leniency can be shown and the appellants may not be acquitted on the basis of affidavit filed by the defacto-complainant as it would send wrong signals in the society. 11. The affidavit of the defacto-complainant reads as under:- "I, Dhirubhai Nanjibhai Gondaliya, male, aged : 68 Yrs., residing at : Dharanagar No.1, Housing Board, Garbi Chowk, Jamnagar, do hereby solemnly affirm and state on oath as under:- 1. I say that my daughter namely meena wife of Himmatbhai Mohanbhai Devgania - ori. Appellant No.1 married in the year 1998. Thereafter as she was preparing food on hearth she was caught by fire and taken to the hospital. However, she succumbed to the burns injury. Due to misunderstanding, impugned complaint was filed against the present appellant. Wherein the Hon'ble Sessions Judge, Amreli by an order dated : 27/01/2003 convicted them. 2. I respectfully say and submit that as the misunderstanding was clarified and with the intervention of the elders respected case fellows and friends the matter was settled and compromised. Therefore, the other cases pending before the Ld. Chief JMFC, Amreli and Ld. JMFC, Savarkundla being Criminal Case No. 131/2000 and 68/2000 respectively were disposed of by recording compromise. The aforesaid judgment and order of acquittal passed by the Hon'ble Court below dated : 07/04/2001 and dated 04/10/2010 respectively will be produced before the Hon'ble Court as and when it becomes necessary in the interest of justice. 3. I respectfully say and submit that in view of the aforesaid settlement arrived between the parties, I humbly request to this Hon'ble Court that the judgment and order of conviction and sentence dated 27/01/2003 passed by the Ld. 2nd Fast Track Judge, Amrei in Sessions Case No.271/2001 may kindly be quashed and set aside. 4. I respectfully say and submit that my son in-law namely Himatbhai Mohanbhai Devgania has already married in the year 2003 with Dayaben D/o. Vallabhhai Jadavbhai Dholakiya resident of Ahmedabad. Out of their wed-lock they are having one son aged about 12 yrs. old. They are happily residing at Amreli. I respectfully say and submit that Komalben Ori. 4. I respectfully say and submit that my son in-law namely Himatbhai Mohanbhai Devgania has already married in the year 2003 with Dayaben D/o. Vallabhhai Jadavbhai Dholakiya resident of Ahmedabad. Out of their wed-lock they are having one son aged about 12 yrs. old. They are happily residing at Amreli. I respectfully say and submit that Komalben Ori. Appellant No.4 also got married in the year 2004 at Village : Devchadi, Tal : Gondal, Dist; Rajkot and she is also having two children. 5. I respectfully say and submit that today Mohanbhai is aged about 70 yrs. old and his wife - Parvatiben Mohanbhai aged about 65 yrs. old residing with Amreli with appellant No.1 at Amreli. 6. In view of the aforesaid facts and premises, the impugned judgment and order of conviction and sentence may kindly be quashed and set aside. Whatever stated hereinabove are true to the best of my knowledge, information and belie and I believe the same to be true." 12. Having heard learned advocates for the appellants- accused persons and original complainant as well as learned Additional Public Prosecutor for the respondent-State and having perused the affidavit tendered by the original complainant, I am of the opinion that the incident has happened as stated in the affidavit of defacto complainant because of some misunderstanding. The said misunderstanding was resolved after intervention of elders. After the incident, the appellant No.1, who happens to be the husband of the deceased, re-married and settled with his family at Ahmedabad whereas the appellant Nos. 2 & 3 are of advanced age. The relations between the defacto complainant and the appellants appears to be cordial and no bitterness prevailing between them. The parties have now left behind the past and moved in their respective lives. I am, therefore, of the view that while maintaining the conviction the sentence imposed on the appellants is required to be suitably modified. 13. For the forgoing reasons, the present appeal succeeds in part. While upholding the impugned judgment and order of conviction passed by the learned Second Fast Track Court, Amreli, passed in Sessions Case No.271 of 2001 dated 27.01.2003, modified whereby, while maintaining the fine the sentence already undergone by each of the accused persons is ordered to be treated as sufficient sentence. None of the accused person is required to undergo further sentence in respect of the offence in question. 14. None of the accused person is required to undergo further sentence in respect of the offence in question. 14. Record and Proceedings is ordered to be remitted to the trial Court forthwith.