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2019 DIGILAW 484 (GUJ)

Arjanbhai Bhanjibhai Sathwara v. State of Gujarat

2019-04-29

A.G.URAIZEE

body2019
JUDGMENT : 1. In this appeal under Section 374 of the Code of Criminal Procedure, 1973 (“the Code” for short), the appellant has assailed the judgment and order of conviction dated 15.02.2005 passed by the learned Additional Sessions Judge, Fast Track Court No.3, Rajkot-Morbi in Sessions Case No. 63 of 1998, whereunder, the appellant came to be convicted as under:- Nature of offence Sentence 498(A) of IPC R.I. for 3 Years, Fine of Rs.3000/-, I.D.R.I. for 6 Months 323 of IPC R.I. for 1 Year, Fine of Rs.1000/-, I.D.R.I. for 3 Months 2. The facts of the prosecution case against the appellant as could be gathered from the memo of appeal in paragraph (A) are that on 21.04.1998 at about 10.00 a.m. at the house of the appellant, his wife Prabhaben committed suicide by pouring Kerosene and set herself ablaze. The cause of suicide was alleged due to physical and mental torture. She was often going away to her parents' place and was brought back after persuasion and assurance by the Appellate not to maltreat her. The married life was of about 12 years and 4 children were born out of wedlock. The FIR was lodged by Shri Virjibhai Kanjibhai Satvara, the father of the deceased. Upon investigation the charge sheet was submitted and upon conclusion of Trial the appellant has been convicted. 3. After the investigation, charge-sheet was filed against the appellant in the Court of learned Judicial Magistrate First Class Court, Rajkot. As the offences were exclusively triable by the Court of Sessions, the learned Magistrate committed the case under Section 209 of the Code to the Court of Sessions, where the case came to be registered as Sessions Case No. 63 of 1998. 4. The Sessions Court framed charges against the accused vide Exhibit-1. The same was read over and explained to the accused - appellant, who pleaded not guilty and claimed to be tried. The prosecution, therefore, adduced documentary and ocular evidence to prove the guilt of the accused. 5. Upon conclusion of the trial, the statement under Section 313 of the Code of the accused-appellant came to be recorded. The trial Court, after considering the evidence on record and arguments of learned APP and learned advocate for the appellant-accused, convicted the appellant-accused of the charges by the impugned judgment and order. 6. I have heard Mr. J.M. Buddhbhatti, learned advocate for the appellant and Mr. The trial Court, after considering the evidence on record and arguments of learned APP and learned advocate for the appellant-accused, convicted the appellant-accused of the charges by the impugned judgment and order. 6. I have heard Mr. J.M. Buddhbhatti, learned advocate for the appellant and Mr. L.R. Pujari, learned Additional Public Prosecutor for the respondent. I have also perused the record of Sessions Case No.63 of 1998. 7. Mr. Buddhbhatti, learned advocate for the appellant vehemently submitted that the findings recorded by the learned trial Judge about the cruelty meted out to deceased is contradictory. He also submitted that the appellant was married with the deceased-Prabhaben for 12 years and out of the wedlock 4 children were born. He, therefore, submitted that it is highly unlikely and unbelievable that the deceased-Prabhaben was subjected to cruelty by the appellant on the pretest of she not know cooking. He would also submit that the deceased-Prabhaben was suffering from some mental illness and committed suicide. He also submitted that the evidence of material witness suffers from improvement and contradictions and the testimony of Investigating Officer makes it very clear that all the material witness has stated in their respective statement under Section 161 of the Code that the deceased had committed suicide owing to her mental illness. He submitted that it is clear from the evidence of doctor (P.W.1) that it was the appellant who had brought the deceased to the hospital for treatment. The conduct of taking the deceased-Prabhaben to the hospital by the appellant itself indicate that had the deceased-Prabhaben committed suicide owing to the cruelty by the appellant, she would not reveal that she would taken to the hospital by the appellant. He submitted that the incident had taken place in the year 1998, and therefore, instead of deciding the appeal on merit, the appellant urges that the punishment imposed upon him by the learned trial Judge modified even already undergone. 8. Mr. L.R. Pujari, learned Additional Public Prosecutor has supported the impugned judgment. He submitted that all the material witnesses have consistently stated in their respective testimonies that the appellant subjected the deceased to ill treatment and cruelty and pretest of she not know cooking. He further submitted that woman under normal circumstances after 12 years of marriage life having 4 children would not take an extreme step of owing her life without any cause. He further submitted that woman under normal circumstances after 12 years of marriage life having 4 children would not take an extreme step of owing her life without any cause. He, therefore, urged that the appeal may be dismissed. 9. It would be apposite to consider the evidence of relevant witnesses at this stage to appreciate the submission of learned advocate for the appellant to modify the sentence imposed by the learned trial Judge to already undergone. 10. Virjibhai Kanjibhai Satvara-P.W.2 is the defacto complainant and father of the deceased, Jayrambhai Kanjibhai Satvara-P.W.3 is the uncle of the deceased, Dhaniben Jayrambhai Satvara-P.W.4 is the maternal aunt and Bhurjibhai Virjibhai Satvara P.W.5 is the brother of the deceased. It emerges from the evidence of P.W.1 that the appellant was subjecting the deceased to mental and physical cruelty on account of she not knowing cooking. He further states that from the wedlock between the appellant and deceased 4 children, 2 sons and 2 daughters were borne. It emerges from the evidence of all these witnesses that the marriage life of the appellant and deceased was of 12 years. 11. It is further reveal from his evidence that deceased- Prabhaben used to come to maternal home because of the ill treatment and harassment meted out to her by the appellant. P.W.3, P.W.4 and P.W.5, uncle, aunt and brother respectively had not state in their respective testimonies that the appellant was subjecting the deceased-Prabhaben to mental and physical cruelty on the pretest of she not knowing cooking. These three witnesses only state that the appellant was subjecting the deceased to mental and physical cruelty. 12. The Investigating Officer-Jitubha Bhupatsang Jhala (P.W.6) has admitted in the cross-examination that all these material witnesses have not stated in their respective statement under Section 161 of the Code that there was no dispute between the appellant and the deceased-Prabhaben and that since one would prior to the incident. The deceased was suffering from mental illness. 13. It is thus clear from the evidence of material witness that the appellant was subjecting the deceased to cruelty. The exact cause for meting out the cruelty is not very clear, but, after 12 years of marriage life the deceased committed suicide that itself indicate that she would have taken this extreme step on account of some inconvenience cause to her by the appellant. 14. The exact cause for meting out the cruelty is not very clear, but, after 12 years of marriage life the deceased committed suicide that itself indicate that she would have taken this extreme step on account of some inconvenience cause to her by the appellant. 14. Considering the overall nature of evidence as regards the nature to cruelty meted out by the appellant to the deceased- Prabhaben and the fact that the incident had taken place in the year 1998 i.e. around more than 21 years ago and that the appellant has the responsibility of raising 4 children. I am of the view that sending the appellant to jail to serve out the remaining sentence would not serve any purpose and on the contrary to spoil the life of the children. I am, therefore, of the view that it would be just and proper in the interest of justice to modify the sentence imposed upon the appellant who was undergone. 15. For the foregoing reasons the appeal succeeds in part. While upholding the impugned judgment and order of conviction passed by the learned Additional Sessions Judge, Fast Tract Court No.3 Rajkot, Morbi in Sessions Case No.63 of 1998 dated 15.02.2005, modified whereby, the sentence already undergone by the accused-appellant is ordered to be treated as sufficient sentence. The accused-appellant is not required to undergo further sentence in respect of the offence in question. 16. The accused-appellant is on bail and hence, the bail bonds stand cancelled and surety, if any, stands discharged. 17. Record and Proceedings be remitted back to the trial Court forthwith.