Mineshbhai Virabhai Katara vs State of Gujarat

Z.K. Saiyed, J.—The appellant has preferred this Appeal u/s 374 of the Code of Criminal Procedure, 1973 against the judgment and order of conviction and sentence dated 14th October 2005 passed by the learned Additional Sessions Judge, Third Fast Track Court, Dahod, in Sessions Case No. 440 of 2004, whereby the learned Judge has convicted the appellant-accused under Sections 306 and 498(A) of the Indian Penal Code.

It is the case of the prosecution that wife of the appellant committed suicide on 19th April 2004 by jumping into the well of one Shri Kalubhai Somabhai. It is further the case of the prosecution that the appellant and other two accused persons, viz. father and mother of the appellant, were torturing Kapilaben, wife of the appellant, and therefore, she committed suicide. Therefore, a complaint to the said effect was registered with Fatehpura Police Station by Shri Kalubhai Somabhai. Thereafter, statements were recorded and and the appellant along with two other accused were charge-sheeted under Sections 306, 498(A) and 114 of the Indian Penal Code, 1860. Statement of the appellant u/s 313 of the Code of Criminal Procedure, 1973 was recorded.

Thereafter the trial was conducted before the learned Judge. To prove the case of the prosecution, prosecution has produced oral as well as documentary evidence.

After hearing both the sides, the learned Additional Sessions Judge, Third Fast Track Court, Dahod, has passed the judgment and order of conviction dated 14th October 2005 in Sessions Case No. 440 of 2004, whereby the learned Judge has convicted the appellant for the offence punishable u/s 306 of the Indian Penal Code and ordered to suffer rigorous imprisonment for a period of seven years and fine of Rs. 1000/ -, and in default of payment of fine, ordered to undergo simple imprisonment for a further period of three years. The appellant was also acquitted for the offence u/s 498(A) of the Indian Penal Code and ordered to undergo rigorous imprisonment for a period of three years and fine of Rs. 500/ -, and in default of payment of fine, ordered to undergo simple imprisonment for a further period of one month. However, it was clarified that both the sentences shall run concurrently and the period, which the appellant has spent in the judicial custody, shall be given as a set of.

Being aggrieved by and dissatisfied with the said judgment and order of conviction dated 14th October 2005 passed by the learned Additional Sessions Judge, Third Fast Track Court, Dahod, the appellant hereinabove has preferred the present Criminal Appeal before this Hon''ble Court.

I have heard Mr. Poonam Gadhvi, learned Counsel for Mr. S.K. Gadhvi, learned Counsel for the appellant and Mr. H.H. Parikh, learned Additional Public Prosecutor, appearing on behalf of the respondent-State. I have also gone through the papers produced before me and the judgment and order of conviction passed by the trial Court.

Mr. Gadhvi has taken me through the evidence of prosecution witnesses and the documentary evidence and submitted that from the evidence produced on record it is established that the prosecution has failed to prove its case beyond reasonable doubt. He has contended that the present appellant is very poor person. He has contended that the witnesses, who are examined, are interested witnesses, and no independent witnesses have been examined. He has also contended that there are material contradictions between the testimonies of the witnesses and the same does not inspire any evidence. He has also contended that even if the case of the prosecution is taken to be true at its face value, case of abatement is not proved beyond reasonable doubt against the present appellant. He has also contended that if the co-accused have already been acquitted from the said offence, appellant is also required to be acquitted. He has also contended that prosecution has failed to prove demand of dowry on the part of the present appellant and thus, it cannot be said that the appellant had inflicted cruelty on the deceased to the said effect. He has also contended that the appellant is handicap and therefore, he would not be in a position to inflict cruelty on the deceased. He has further contended that the appellant is in jail since five years. He has also contended that therefore, some lenient view is required to be taken in the matter. He has further contended that he is only arguing the matter on the point of quantum of punishment and not arguing the matter on merits.

Heard Mr. H.H. Parikh, learned Additional Public Prosecutor for the respondent-State. He has supported the judgment and order of conviction passed by the learned Judge. He has contended that looking to the charge framed against the appellant, order passed by the learned Judge is absolutely just and proper. He has also read the documentary evidence produced on record and contended that learned Judge has not committed any error in convicting the appellant-accused. He, therefore, contended that the present appeal is required to be dismissed.

I have gone through papers produced before me and the judgment and order passed by the learned trial Court. I have also perused the oral as well as documentary evidence led before the trial Court and also considered the submissions made by learned Counsel for the parties.

Looking to the facts and circumstances of the case and looking to the fact that the appellant is handicap, conviction imposed upon the appellant is very harsh. As the appellant has already undergone five years in custody, the sentence already undergone by the appellant-convict be treated as sentence, the same would meet with the ends of justice. Even looking to the submissions advanced by the learned Counsel and circumstances of the case, sentence imposed upon the appellant is required to be reduced and modified on the ground of sympathy also.

Hence, the present appeal is partly allowed. The judgment and order of conviction dated 14th October 2005 passed by the learned Additional Sessions Judge, Third Fast Track Court, Dahod, in Sessions Case No. 440 of 2004, is hereby confirmed. However, the judgment and order of sentence dated 14th October 2005 passed by the learned Additional Sessions Judge, Third Fast Track Court, Dahod, in Sessions Case No. 440 of 2004 is hereby reduced and modified to the extent of sentence which the appellant has already undergone and the appellant shall be set at liberty forthwith if he is not required to be detained in any other case. The rest of the judgment and order dated 14th October 2005 shall remain unaltered. Bail bond, if any, shall stands discharged. Record and Proceedings, if any, be sent back to the trial Court, forthwith.