CR.A/673/1997 1/5 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 673 of 1997 For Approval and Signature: HONOURABLE MR.JUSTICE H.B.ANTANI ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================================= CHETANKUMAR BHOGILAL Versus STATE OF GUJARAT ========================================================= Appearance : MR HARDIK A DAVE for Appellant. MR AJ DESAI, ADDL. PUBLIC PROSECUTOR for respondent. ========================================================= CORAM : HONOURABLE MR.JUSTICE H.B.ANTANI Date : 25/11/2008 ORAL JUDGMENT By filing this appeal under section 374 (2) of the Criminal Procedure Code, the appellant, original accused CR.A/673/1997 2/5 JUDGMENT No.1 has challenged the judgment and order dated 18.07.1997 passed by the learned Additional Sessions Judge, Court No. 16, Ahmedabad City in Sessions Case No. 247/94 convicting the appellant for offence punishable under section 498.A of the Indian Penal Code and sentencing him to rigorous imprisonment for one year. Earlier, this appeal came to be heard by this Court and this Court [Coram: C.K. Buch, J.] by judgment and order dated 24.09.2007, dismissed the appeal and confirmed the order of conviction and sentence recorded by the learned Additional Sessions Judge. However, the appellant was given time to surrender before the trial Court till 23.11.2007. Being aggrieved by the said judgment and order passed by this Court, the appellant preferred Criminal Appeal No. 613 of 2008 before the Honourable Supreme Court, and the Apex Court, after hearing the parties, passed the following order on 7th April 2008: “Leave granted. Heard learned counsel for the respective parties. We allow the appeal and remit the matter to the High Court for fresh disposal. In the meantime, the appellant shall be released on bail to the satisfaction of Additional Sessions Judge, Ahmedabad City.” In the backdrop of aforesaid order passed by this CR.A/673/1997 3/5 JUDGMENT Court as well as the Honourable Apex Court, this matter is taken up for hearing today. Mr. Dave, learned advocate representing the appellant [original accused No.1], at the outset, vehemently submitted that he does not challenge the order of conviction passed by the learned Additional Sessions Judge under section 498.A of IPC. However, the learned advocate submitted that the changed circumstances which took place after 1997 be taken into consideration, and the appellant be sentenced to imprisonment which he has already undergone under section 498.A of the IPC. The learned advocate submitted that the appellant has re- married on 04.03.97 and a girl child has been born out of the new wedlock on 15.01.2002. In support of the submission, learned advocate has placed before me copy of the marriage certificate issued by Arya Samaj Mandir as also copy of birth certificate issued by Ahmedabad Municipal Corporation, indicating the name of the present appellant as father. Learned advocate submitted that due to the change in circumstances, a lenient view is required to be taken and the appellant be sentenced to imprisonment which he has already undergone. Learned APP Mr. Desai opposing the aforesaid submissions contended that no lenient view is required to be taken in the matter as the appellant has committed an offence punishable under section 498.A of IPC. Eventhough the offence has been proved and sentence may extend to 3 years, considering the facts and circumstances of the case, the learned trial Judge has imposed only sentence of 1 years' rigorous imprisonment and therefore, no interference is called for in the judgment rendered by the learned Judge and as the appeal is devoid of any CR.A/673/1997 4/5 JUDGMENT merit, the same be dismissed. I have heard learned advocate Mr. Dave for the appellant and Mr. Desai, learned APP for the State at length and in great detail. I have also considered the deposition adduced by the prosecution as well as the documentary evidence on which reliance is placed by the prosecution side. The reasonings assigned by the learned Judge while convicting the appellant for offences punishable under section 498.A have also been considered by me. Having considered the entire oral deposition and documentary evidence as well as change in the circumstances narrated by the learned advocate for the appellant, I am of the view that in view of the changed circumstances and since the appellant has re-married on 04.03.97 and is also having a daughter born on 15.01.02 out of the said wedlock, so as to meet the ends of justice, the appellant can be sentenced to imprisonment already undergone by him. For the foregoing reasons, the order of conviction under section 498.A recorded by the Additional Sessions Judge, Court No. 16, Ahmedabad City in Sessions Case No. 247/94 is confirmed; however, the sentence imposed by the learned Judge is modified and the appellant is now imposed the sentence under section 498.A which he has already undergone. The appellant was released on bail as per the order passed by the Apex Court. His bail bonds stand discharged. The appeal is partly allowed accordingly. CR.A/673/1997 5/5 JUDGMENT mathew [H.B.ANTANI, J.]