Pratapbhai Navalabhai Baria vs The State of Gujarat and Another

Z.K. Saiyed, J.—The present appellant has preferred this appeal u/s 374(2) of the Code of Criminal Procedure, against the judgment and order of conviction and sentence dated 23.2.2004 passed by the learned Joint District Judge & Addl. Sessions Judge, Fast Track Court No. 2, Panchmahals, camp at Dahod in Sessions Case No. 350/2002, whereby, the learned Judge has convicted the appellant u/s 498-A of IPC and sentenced to undergo S/I for 2 years and to pay a fine of Rs. 1000/-, in default, to undergo further S/I for 30 days. The appellant is also convicted u/s 306 of IPC and sentenced to undergo R/I for a period of seven years and to pay a fine of Rs. 1000/- in default, to undergo further S/I for one months, which is impugned in this appeal.

The brief facts of the prosecution case is as under:

That, one Tinuben Dineshbhai Bariya, her husband and her mother-in-law are residing together at village Goriya, Ghata faliya of taluka Limkheda. Her sister-in-lawm, namely Kailashben''s marriage took place before five months with Vikash - son of the Pratapbhai Navalbhai Bariya as per the customs of their caste. Thereafter, her sister-in-law used to come off and off at her parental house. After the marriage, Kailashben came to the house of complainant and at that time she was under depression. So complainant asked but she did not reply satisfactorily. That on 11.8.2002 or before about a month, it is the case of the prosecution that the appellant had tried to have an illicit relation with deceased, and when she refused, she was given mental as well as physical torture and, therefore, she committed suicide.

Therefore a complaint came to be filed by the Limkheda Police Station. The panchnama of the clothes put on by the deceased was prepared in the presence of panch witness and statements of the witnesses were recorded and on completion of the investigation, charge-sheet was filed in the Court of learned Judicial Magistrate First Class, Limkheda. Thereafter, as the case was exclusively triable by the Court of Sessions, the learned Magistrate has committed the case to the Court of Sessions, which was given number as Sessions Case No. 350/2002.

Thereafter, the charge was framed at Ex. 1 against the appellant. The appellant - accused has pleaded not guilty and claimed to be tried.

In order to bring the home the charge levelled against the appellant-accused, the prosecution has examined the witnesses and also produced documentary evidence before the trial Court.

Thereafter, after examining the witnesses, further statement of the appellant-accused u/s 313 of CrPC was recorded in which the appellant-accused has denied the case of the prosecution.

After considering the oral as well as documentary evidence and after hearing the parties, learned Judge vide impugned judgment and order dated 23.2.2004 held the appellant - accused guilty to the charge levelled against him u/s 498-A and 306 of IPC and convicted and sentenced the appellant accused, as stated above.

Being aggrieved by and dissatisfied with the impugned judgment and order of conviction and sentence passed by the learned Addl. Sessions Judge, Dahod, the present appellant has preferred this appeal.

Heard Mr. Kunal Shah learned advocate for the appellant and Mr. H.H. Parikh learned APP for the respondent-State.

Mr. Shah learned advocate for the appellant has fairly admitted that he is only arguing the matter on the point of quantum of punishment and not arguing the matter on merits. He has also contended that looking to the age of the present appellant, a very harsh conviction has been imposed upon him by the learned Judge, which is required to be reduced. In that view of the matter, the period of sentence is very harsh and looking to the age of the appellant, he has undergone the sentence of more than six years. He has further contended that the appellant is a very poor person and he is the only bread earner member in the family, and therefore, the sentence imposed upon the present appellant by the learned Judge may be reduced to the sentence as already undergone by the appellant-accused.

On the otherside, learned APP Mr. H.H. Parikh has read the impugned judgment and order of conviction and sentence passed by the learned Judge and contended that the impugned judgment and order is required to be confirmed.

I have gone through the oral as well as documentary evidence produced on the record. I have read the oral evidence of prosecution witness-complainant and also perused the charge framed against the appellant. Looking to the allegations levelled against the present appellant, they are very serious in nature, but when sufficient period of sentence is already undergone by the present appellant, then, I am of the opinion that looking to the poverty of the appellant, this is a fit case to consider the submissions of the learned advocate for the appellants. In that view of the matter, when the learned advocate Mr. Shah appearing for the appellant is not arguing the matter on merits but arguing the matter on the point of quantum of punishment, I am of the opinion that this is a fit case to reduce the sentence.

In the result, this appeal is partly allowed. The impugned judgment and order of conviction dated 23.2.2004 passed in Sessions Case No. 350/2002 by the learned Joint District Judge & Addl. Sessions Judge, Fast Track Court No. 2, Panchmahals at Dahod convicting the appellant-accused u/s 498-A and 306 of IPC is hereby confirmed. However, the order of sentence sentencing the appellant-accused to undergo R/I for 7 years for the aforesaid offence u/s 306 of IPC, is hereby modified to the extent that instead the appellant-accused is hereby sentenced to undergo the period of sentence already undergone. Rest of the impugned judgment and order is confirmed. The appellant is ordered to be set at liberty forthwith, if he is not required in any other case.