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Gujarat High Court · body

2019 DIGILAW 919 (GUJ)

Kantaben v. State of Gujarat

2019-10-15

ABDULLAH GULAMAHMED URAIZEE

body2019
JUDGMENT : ABDULLAH GULAMAHMED URAIZEE, J. 1. In this appeal under Section 374 of the Code of Criminal Procedure, 1973, the appellant has assailed the judgment and order of sentence dated 23.02.2006 passed by the learned Additional Sessions Judge, 2nd Fast Track Court Banaskantha at Deesa, in Sessions Case No. 52 of 2005 where-under the appellant came to be convicted under Section 325 of the Indian Penal Code ('IPC' for short) and sentenced to suffer rigorous imprisonment of three years and under Section 201 of IPC and sentenced to suffer rigorous imprisonment of three years. All the sentences shall run concurrently. 2. The brief facts giving rise to the present appeal as could be gathered from the impugned judgment and connected materials are that between 11:00 p.m. of 07.05.2004 and 08:00 a.m. of 08.05.2004, the appellant had a quarrel with the husband Lebhabhai in respect of serving food and the appellant hit her husband on neck by a wooden plank and also caused injury on head by bucket. Lebhabhai therefore, died on account of injuries suffered on the neck. Babubhai Nanjibhai Vaghela (PW-2) lodged a complaint in respect of this incident with Deesa Rural Police Station. PW-1 made a declaration at Exh.18 in respect of the incident with Deesa Rural Police Station, on the basis of Exh. 18 declaration AD No. 07 of 2004 under Section 174 of the Criminal Procedure Code came to be registered. Investigation ensued and ultimately, a chargesheet for offence punishable under Section 302 and Section 201 of the IPC came to be filed against the appellant in the Court of learned Judicial Magistrate First Class, Deesa. 3. Upon conclusion of the investigation, the charge-sheet was filed against her in the Court of Additional Sessions Judge, 4th Fast Track Court, Deesa. 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. 4. The charge was framed as Exh. 4 and the accused pleaded not guilty to the charge and came to be tried and so to substantiate the charges levelled against the accused person, the prosecution led oral as well as documentary evidences and after evaluating the evidence, the learned Trial Judge convicted and sentenced the accused as above. 5. The prosecution, adduced following documentary and ocular evidences to prove the guilt of the accused. 5. The prosecution, adduced following documentary and ocular evidences to prove the guilt of the accused. ORAL AND DOCUMENTARY EVIDENCE ORAL EVIDENCE SR. NO. NAME OF THE WITNESS EXHIBIT 1 PW-1 Dr. Azahar Vahidkhan Exh. 6 2 PW-2 Babubhai Nanjibhai Vaghela (complainant) Exh. 17 3 PW-3 Mevabhai Bhagabhai Harijan Exh. 19 4 PW-4 Udesinh Meruji Barot (Panch witness of place of evidence) Exh. 21 5 PW-5 Bhurabhai Valjibhai Rabari (Muddamal Recovery Panch) Exh. 23 6 PW-6 Hetalben Karsanbhai Chamar Exh. 26/A 7 PW-7 Jagdishkumar Raghubhai Chavda (Investigating officer at the place of accident) Exh. 29 8 PW-8 Punjabhai Dalabhai Nagariya (PSO) Exh. 33 9 PW-9 Ravindra Dhanjibhai Mitra (I.O) Exh. 36 10 PW-10 Rajendra Bhanuprasad Yagnik (I.O.) Exh. 45 DOCUMENTARY EVIDENCE 1 Suchipatrak Exh. 34 2 Complaint Exh. 18 3 Yadi forwarded to Executive Magistrate Exh. 35 4 Inquest Panchnama Exh. 27 5 Yadi from PSO to PI Exh. 46 6 Panchnama of place of offence Exh. 22 7 Panchnama of cloths of deceased Exh. 31 8 Panchnama of muddamal wooden plank Exh. 26 9 Body position Panchnama of lady accused Exh. 28 10 Yodi to Medical Officer Exh. 7 11 Posthumous Form Exh. 30 12 P.M. Note Exh. 08 13 Cause of Death Certificate Exh. 09 14 Written Yadi to Medical Officer Exh. 10 15 Yadi to Medical Officer Exh. 12 16 Opinion of Doctor Exh. 11 17 FSL Yadi Exh. 48 18 FSL Report Exh. 49 19 Serological Report Exh. 50 20 FSL Yadi Exh. 40 21 Dispatch Note Exh. 38 22 Place of offence Map Exh. 39 23 Medical Report Exh. 32 24 Letter to PSI Deesa Rural to lodge a complaint Exh. 119 25 Letter from PI to Medical Officer Exh. 15 26 FSL Yadi Exh. 53 27 FSL Yadi Exh. 54 28 FSL Serological report Exh. 55 6. Upon conclusion of the trial, statement under Section 313 of the Code 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 accused, convicted the appellant accused of the charges by the impugned judgment and order. 7. I have heard Mr. Mahendrabhai Patel, learned advocate for the appellant and Mr. L.R. Poojari, learned APP for the respondent-State. 8. Mr. Mahendrabhai Patel, learned advocate for the appellant submitted that the appellant and PW-2 original complainant happens to be sister-in-law (bhabhi) and brother-in-law (diyar). 7. I have heard Mr. Mahendrabhai Patel, learned advocate for the appellant and Mr. L.R. Poojari, learned APP for the respondent-State. 8. Mr. Mahendrabhai Patel, learned advocate for the appellant submitted that the appellant and PW-2 original complainant happens to be sister-in-law (bhabhi) and brother-in-law (diyar). The incident had happened in the year 2004 and now the appellant and PW-1 have settled the dispute. Relationship between them are now cordial. The affidavit by the original complainant is taken on record. He, therefore, submitted that the sentence imposed on the appellant may be modified to already undergone and punishment of fine may be imposed on the appellants. 9. Babubhai Nanjibhai Vaghela (PW-2)-original complainant as well as appellant are present in person in the Court. PW-1 tenders his affidavit which is taken on record. He submits that he has settled the dispute with the appellant who happens to be his sister-in-law. He, therefore, submits in the affidavit that the sentence imposed on the appellant may be set-aside. 10. PW-1 also submits that he has tenders affidavit without their being any coercion, threat or inducement to him. 11. Mr. Poojari, learned APP had supported the impugned judgment. However, he submitted that looking to the relationship between the appellant and PW-1, this Court may pass appropriate order. 12. The incident had happened in the year 2004. Though tried for offence punishable under Section 302, the Trial Court has convicted the appellant for the offence punishable under Section 325 of the Indian Penal Code. The incident had happened around fifteen years ago. It is not brought to the notice of this Court that in the interregnum period the appellant has conducted herself in any manner prejudicial to law and order. The appellant has no criminal antecedent. Considering overall facts and circumstances under which the incident had happened, I am of the view that the substantive sentence imposed on the appellant needs to be modified to already undergone and also imposing punishment of fine on both counts. 13. For the foregoing reasons, the appeal succeeds in part. The impugned judgment and order of sentence dated 23.02.2006 passed by the learned Additional Sessions Judge, 2nd Fast Track Court, Banaskantha at Deesa in Sessions Case No. 52 of 2005 is modified by reducing the substantive sentence to already undergone and additionally, the appellant is directed to pay fine of Rs. 1000/- each (total Rs. The impugned judgment and order of sentence dated 23.02.2006 passed by the learned Additional Sessions Judge, 2nd Fast Track Court, Banaskantha at Deesa in Sessions Case No. 52 of 2005 is modified by reducing the substantive sentence to already undergone and additionally, the appellant is directed to pay fine of Rs. 1000/- each (total Rs. 2000/-) for the offence punishable under Section 325 and Section 201 of the IPC. The appellant is directed to deposit the amount of fine in the Trial Court on or before 30.11.2019. 14. Since the accused person is on bail, his bail bond stands cancelled and surety, if any stands discharged. 15. Record and proceedings is ordered to be transmitted to the concerned trial Court forthwith.