Venkatesh S. Iyer and Another vs State of Gujarat

Z.K. Saiyed, J.—The present Appellants have preferred this Appeal u/s 374(2) of the Code of Criminal Procedure against the judgment and order of conviction and sentence dated 31.12.1997 passed by the learned Additional Principal Judge, City Sessions Court, Ahmedabad in Sessions Case No. 109 of 1993, whereby the learned Sessions Judge has convicted the Appellants for the offence punishable under Sections 498(A) and 306 of the Indian Penal Code. The Appellant No. 1 was ordered the Appellant No. 1 to undergo R.I. for two years and to pay a fine of Rs. 500/-, in default, to undergo further R.I. for one month for the offence punishable u/s 498(A) of the Indian Penal Code and for the offence punishale u/s 306 of the Indian Penal Code, the Appellant No. 1 was ordered to undergo R.I. for five years and fine of Rs. 500/-, in default, further R.I. for one month. Learned Sessions Judge was also pleased to convict and sentence the Appellant No. 2 to undergo S.I. for two years and to pay a fine of Rs. 500/-, in default, further S.I. for one month for the offence punishable u/s 498(A) of the Indian Penal Code and for the offence punishable u/s 306 of the Indian Penal Code, learned Sessions Judge also ordered the Appellant to undergo S.I. for two years and six months and fine of Rs. 500/-, in default, to undergo S.I. for one month.

The brief facts of the prosecution case are as under:

The case of the prosecution is that the Appellant No. 1 married with deceased Gaytri on 27.1.1991. The Appellant No. 2 is mother-in-law of the said Gaytri. It is alleged that the Appellants were causing mental and physical torture to the deceased Gaytri and also they had beaten the deceased for the want of dowry. Therefore, on 19.6.1992, at about 8:30 hrs., the deceased consumed position due such harassment of the Appellants and she died. Therefore, complaint being C.R. I 447 of 1992 was lodged before Naranpura Police Station for the offence punishable under Sections 498(A), 306, 304(B) and 114 of the Indian Penal Code against the accused persons.

Thereafter, the statements of the witnesses were recorded, panchnama was drawn and the accused were arrested. Against the Appellants, charge-sheet was filed and thereafter, Sessions Case No. 109 of 1993 was tried before the learned Sessions Judge at learned Additional Principal Judge, City Civil Court, Court No. 2, Ahmedabad.

Thereafter, the charge was framed against the Appellants. The Appellants pleaded not guilty and claimed to be tried.

To prove the case against the Appellants, the prosecution has produced documentary evidence and also examined in all 9 witnesses before the Sessions Court.

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

After considering the evidence like documentary and oral produced on record and after hearing the parties, learned Sessions Judge vide judgment and order dated 31.12.1997 held the Appellants - accused guilty to the charge levelled against them and sentenced as stated above, which is impugned in this Appeal.

Therefore, the Appellants have challenged the impugned judgment and order of conviction and sentence passed by the learned Sessions Judge by way of present Criminal Appeal.

Learned advocate Ms. Hetvi Sancheti appearing on behalf of Mr. S.V. Raju learned senior advocate for the Appellants submitted that the order passed by the learned Sessions Judge is contrary to law, evidence on record and unwarranted. She submitted that the learned Judge has not properly appreciated the evidence of panch witness Prakash Gordhanbhai at Exhibit 31, who stated that the accused were not ill-treating the deceased and said witness was living with the Appellants since last 25 years. The P.W.5 Tekchand Shridhar at Exhibit 33, who turned hostile, even though, the learned Sessions Judge has relied upon the said witness. Even the witnesses who have given the evidence are relatives of the deceased and therefore, they are interested witnesses. However, the learned Sessions Judge has considered their evidence, while passing the order of conviction and sentence against the Appellants. There is no evidence produced before the trial Court by the prosecution, which links the allegations regarding provocation, instigation or abetment on the part of the Appellants. The ingredients of offence u/s 498(A) of the Indian Penal Code are not proved against the Appellants. She submitted that the Appellant No. 2 was staying at Madras prior to the incident and the ingredients of the offence u/s 306 of the Indian Penal Code are not attracted to the Appellant.

Learned advocate Ms. Sancheti submitted that she is not arguing this matter on merits, but arguing on the quantum of punishment. She submitted that the sentence imposed by the learned Sessions Judge is very harsh in nature and the Appellant No. 1, who was aged about 32 years at the time of incident and therefore, his age is now more than 50 years and therefore, she prayed to reduce the sentence. She further submitted that the Appellant No. 2, who is mother of the Appellant No. 1, and therefore, considering her old age, therefore, some lenient view may be considered so far it relates to the sentence imposed upon the Appellants.

The learned APP Mr. Jani for the State strongly opposed the submissions made by the learned advocate for the Appellants. It was contended by learned APP that the judgment and order of the Sessions Court is just and proper and as per the provisions of law; the Sessions Court has properly considered the evidence led by the prosecution and looking to the provisions of law itself, it is established that the prosecution has proved the whole ingredients of the evidence against the present Appellant. But he submitted that if the sentence is reduced to some extent, the State has no objection about the same.

I have perused the judgment and order and reasons given by the learned Judge also. I have perused the record of the case and also considered the submissions made by the learned advocates for the parties. After the considering the evidence, the learned Sessions Judge has rightly held the Appellants guilty for the offences alleged against them and sentenced the Appellants and the Appellants were ordered to undergo R.I. as stated above.

I have considered the submission about the quantum of punishment made by the learned advocate. The Appellant No. 1 was ordered to undergo R.I. for five years and fine of Rs. 5,00/-, in default, further R.I. for one year for the offence punishable u/s 306 of the Indian Penal Code. As per the submission of the learned advocate for the Appellants, the sentence imposed upon Appellants is required to be modified and I have considered the submission made by the learned advocate for the Appellants and after taking to the consideration the no objection of the State, the sentence is modified to the extent of four years instead of five year so far it relates to the offence punishable u/s 306 of the Indian Penal Code. The sentence imposed upon the Appellant No. 2, who is lady accused, more than 70 years old, and therefore, the sentence imposed for the offence punishable u/s 306 of the Indian Penal Code, to suffer R.I. for two years and six months is modified to the extent of one year and three months. After considering the submission about quantum of punishment made by the learned advocate of Appellant, this Court is not deciding this matter on merits, but only considering the quantum of punishment and the learned APP submitted that if the sentence is reduced to some extent, the State has no objection for the same.

In view of the above, the Appeal is partly allowed. The judgment and order dated 31.12.1997 passed by the learned Additional Principal Judge, Court No. 2, City Sessions Court, Ahmedabad, in Sessions Case No. 109 of 1993, is hereby modified as under:

So far as the Appellant No. 1 is concerned, the sentence imposed u/s 498(A) of the Indian Penal Code is confirmed and for the sentence imposed u/s 306 of the Indian Penal Code, the Appellant No. 1 is ordered to undergo R.I. for four years instead of five years. So far as Appellant No. 2 is concerned, sentence imposed u/s 306 of the Indian Penal Code is modified to the extent of 1 year and three months instead of 2 years and six months. If the Appellants are on bail, they are hereby directed to surrender before the Jail Authority within three weeks from the date of this order, failing which, the concerned Court shall issue non-bailable warrant to effect the arrest of the Appellant. Rest of the judgment of the learned Sessions Court shall remain unaltered. Record and proceeding be sent back to the concerned trial Court.