CR.A/942/1996 1/6 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 942 of 1996 With CRIMINAL MISC.APPLICATION No. 126 of 1997 In CRIMINAL APPEAL No. 942 of 1996 For Approval and Signature: HONOURABLE MR.JUSTICE A.L.DAVE HONOURABLE MR.JUSTICE J.C.UPADHYAYA ========================================================= 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 ? ========================================================= KALUMIYA FAKIRMAMAND - Appellant(s) Versus STATE OF GUJARAT - Opponent(s) ========================================================= Appearance : MR PD SHAH for Appellant(s) : 1, MR MA PATEL, APP for Opponent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE A.L.DAVE and HONOURABLE MR.JUSTICE J.C.UPADHYAYA Date : 16/09/2008 ORAL COMMON JUDGMENT (Per : HONOURABLE MR.JUSTICE J.C.UPADHYAYA) CR.A/942/1996 2/6 JUDGMENT The challenge in this appeal is to the judgment and order dated 29/8/1996 rendered by the Ld. Addl. Sessions Judge, Sabarkantha at Himatnagar in Sessions Case No. 98/1995. The appellant original accused came to be convicted by the Ld. Addl. Sessions Judge for the offences punishable under sections 306, 498-A and 201 of the Indian Penal Code [IPC]. He was sentenced to undergo imprisonment for 6 years, 1 year & 6 months and 1 year respectively for the aforesaid offences. 2. It is reported that the appellant accused has served the sentence and on completion of sentence he was released from jail on 24/2/1999. 2.1. The case of the prosecution, in nut shell, is that the appellant accused married deceased Mumtazbibi, daughter of the complainant and after the marriage, the deceased went to reside with the appellant accused. It is the case of the prosecution that deceased was physically and mentally harassed by the accused. On 19/6/1995 at about 10.00 a.m on account of the cruelty and ill-treatment caused by the appellant to the deceased, the deceased poured kerosene on herself and set herself ablaze and committed suicide. Ibrahim Pirmohmed, father of the deceased, lodged FIR in connection with offence against the appellant. After the investigation was over, the police filed charge-sheet against the appellant in the Court of Ld. Judicial Magistrate First Class, Himatnagar, for the offences punishable under sections 498-A, 306 and 201 of the IPC. Since the offence punishable under section 306 was exclusively triable by the Court of Sessions, the Ld. Magistrate committed the case to the Court of Sessions. CR.A/942/1996 3/6 JUDGMENT 2.2. The Ld. Addl. Sessions Judge framed charge against the accused at exh. 2 for the for the offences punishable under sections 498- A, 306 and 201 of the IPC. Since the accused did not plead guilty, the prosecution adduced its oral and documentary evidence. After considering evidence on record and after hearing the arguments advanced on behalf of both parties, the Ld. Addl. Sessions Judge by virtue of the impugned judgment convicted the appellant accused for the offences punishable under sections 498-A, 306 and 201 of the IPC and awarded sentence as referred to above. Feeling aggrieved and dissatisfied with the impugned judgment and order, the appellant filed this appeal. 3. Ld. Advocate Mr. PD Shah for the appellant is not present when the appeal is called out. Heard Ld. APP Mr. Patel for the respondent – State. We have carefully perused the impugned judgment together with the relevant evidence on record. Considering the evidence on record and appreciation of said evidence made by the Ld. Addl. Sessions Judge in the impugned judgment, it clearly transpires that the deceased Mumtaz married the appellant before about 5 years from the date of incident. Because of the ill-treatment and cruelty caused to her by the appellant, she committed suicide on 19/6/1995 at 10.00 a.m., in the house of the appellant. The case of the prosecution is supported by oral depositions of father, mother, brother of the deceased as well as the neighbours. The Ld. Addl. Sessions Judge elaborately discussed the deposition of complainant, who happened to be the father of the deceased, the deposition of witness Aktarbibi, who happened to be the mother of the deceased and the deposition of Ahmedhusen, who happened to be the brother of the deceased. Considering the depositions of these witnesses, it is elaborately CR.A/942/1996 4/6 JUDGMENT clear that the deceased was subjected to physical and mental cruelty by her husband – appellant herein. Even considering the deposition of witness Bilkisbanu, who is residing in the neighbourhood of the house of the complainant, deposed in her deposition that whenever the deceased used to come to the house of her parents, she used to meet her and she used to tell this witness about the cruelty and ill-treatment meted out to her by the appellant. Considering the medical evidence on record and the post mortem note, it is revealed that the deceased died due to extensive burn injuries. 4. Considering the above aspect of the matter, we see no illegality or irregularity committed by the Ld. Judge while appreciating the evidence on record. Evaluating the evidence on record, the Ld. Judge rightly came to the conclusion that the appellant deserved conviction for the offences committed by him. However, the Ld. APP Mr. Patel submitted that the sentence imposed by the Ld. Judge for the offence punishable under section 306 of the IPC appears to be inadequate. The appellant has already undergone the full sentence imposed by the trial Court. Suffice it to say that considering the overall evidence on record and the extent of punishment prescribed under section 306 of the IPC, we do not find any illegality or irregularity committed by the Ld. Judge in imposing the sentence and even otherwise the sentence imposed by him cannot be said to be grossly inadequate and it is further to be taken into consideration that he had already undergone the sentence imposed upon him. In the judgment the Ld. Addl. Sessions Judge has considered certain mitigating circumstances like the appellant having young son and aged parents and there is nobody else except him to look after them. CR.A/942/1996 5/6 JUDGMENT 5. We are conscious about the fact that the appellate Court would interfere with the sentence awarded by the trial Court exercising its judicial discretion only where the sentence is manifestly inadequate and results in failure of justice. 1. Ram Narain v/s. State of U.P. - AIR 1971 SC 757 2. Ram Sanjiwan Singh v/s. State of Bihar -AIR 1996 SC 3265. In the instant case, as stated above, so far as the offence punishable under section 306 of the IPC is concerned, the Ld. Addl. Sessions Judge, awarded the sentence of rigorous imprisonment of 6 years and fine of Rs.3,000/-, in default to undergo simple imprisonment for one year. The offence punishable under section 306 of the IPC is punishable with imprisonment which may extend to 10 years and fine. Under such circumstances, it cannot be said that the Ld. Addl. Sessions Judge awarded the sentence which can be said to be manifestly inadequate and results in failure of justice. While admitting the appeal, a notice for enhancement of sentence was ordered to be issued which was numbered as Criminal Misc. Application No. 126/1997. 6. For the foregoing reasons, we see no reason to interfere with the order of conviction recorded by the Ld. Addl. Sessions Judge. The appeal and the Misc. Criminal Application No. 126/1997 [suo-moto] deserve to be dismissed and the same are hereby dismissed. ( A. L. DAVE, J.) ( J .C. UPADHYAYA, J. ) CR.A/942/1996 6/6 JUDGMENT *Pansala.