CR.A/1090/1996 1/7 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 1090 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 ? ========================================================= STATE OF GUJARAT - Appellant(s) Versus HIRASING SHAMBHUSING SENGAR & 1 - Opponent(s) ========================================================= Appearance : MR UR BHATT, APP for Appellant(s) : 1, NOTICE SERVED for Opponent(s) : 1 - 2. ========================================================= CORAM : HONOURABLE MR.JUSTICE A.L.DAVE and HONOURABLE MR.JUSTICE J.C.UPADHYAYA Date : 23/09/2008 CAV JUDGMENT (Per : HONOURABLE MR.JUSTICE J.C.UPADHYAYA) The State of Gujarat preferred this appeal under section 377 CR.A/1090/1996 2/7 JUDGMENT of the Code of Criminal Procedure [for short 'Cr. P C'] challenging the order of sentence passed by the Ld. Addl. Sessions Judge, Valsad at Navsari in the judgment and order dated 20/9/1996 in Sessions Case No. 72/1994. The Addl. Sessions Judge, while convicting the respondent no. 1, who was original accused in the aforesaid Sessions Case for the offence punishable under section 498-A of the Indian Penal Code [IPC], awarded sentence to undergo rigorous imprisonment [RI] of 3 years and fine of Rs.500/- and in default to undergo further simple imprisonment of 3 months and awarded sentence for the offence punishable under section 306 of the IPC, the RI of 3 years and fine of Rs.500/- and in default to undergo simple imprisonment of 3 months. So far as the respondent no. 2, who was accused no. 2 in the aforesaid Sessions case is concerned, the learned trial Judge convicted her for the offence punishable under section 306 of the IPC and she was sentenced to undergo RI of 30 months and fine of Rs.500/- and in default to further undergo simple imprisonment of 3 months.. The State of Gujarat preferred this appeal under section 377 of the Cr. P C feeling aggrieved and dissatisfied with the order of sentence passed by the learned trial Judge, stating that the sentence awarded to both the respondents is too lenient and quite insufficient. 2. The prosecution case in nut shell, is that one Sunaynaben, sister of the complainant Babbusing Chandrapalsing, married respondent no. 1 on 9/5/1993. After her marriage, she went to reside with her husband. It is the case of the prosecution that her husband – respondent no. 1 was ill-treating her and was causing physical and mental cruelty to her. That despite the fact that respondent no. 1 married Sunaynaben, yet he had kept the respondent no. 2 – Sunitaben as his concubine. Despite CR.A/1090/1996 3/7 JUDGMENT the fact that Sunaynaben strongly objected to it, yet the respondent no. 1 continued his illicit relation with the respondent no. 2. It is the case of the prosecution that on 4/5/1994 at about 15.00 hours when Sunaynaben was alone in the house of her husband, she set herself ablaze and committed suicide. That at that time, while going out from the house, the respondent no. 1 had locked the door of the house from outside and, therefore, hearing the shout and cry of Sunaynaben from the house, to save her, the door of the house was required to be broken open. Sunaynaben was brought to hospital and she was declared dead. Brother of Sunaynaben, named Babbusing Chandrapalsinh lodged FIR against both the respondents in connection with these offences before the police. The police started investigation and after completion of the investigation, filed charge-sheet against both the respondents in the Court of the Ld. Judicial Magistrate First Class, Navsari. As the offence under section 306 of the IPC was exclusively triable by the Court of Sessions, Ld. Magistrate committed the case to the Court of Sessions, which was numbered as Sessions Case No. 72/1994. 3. The Ld. Addl. Sessions Judge framed charge at Exh. 3 against both the accused. Since the respondents accused did not plead guilty, the prosecution adduced its oral and documentary evidence. After completion of the evidence and after appreciating the evidence on record and hearing the arguments advanced on behalf of both the parties, Ld. Addl. Sessions Judge delivered the impugned judgment and order and convicted both the accused and awarded sentence for the offences proved against them as referred hereinabove. CR.A/1090/1996 4/7 JUDGMENT 4. Ld. APP Mr. Bhatt for the appellant – State submitted that the respondent accused no. 1 – Hirasing Shambhusing had served the entire sentence imposed by the trial Court and was released from jail on 29/3/1997 and the respondent no. 2 Sunitaben had also served the entire sentence awarded to her by the trial Court and was released from jail on 13/1/1997. However, it is submitted that so far as respondent no. 1 – Hirasing, who is the husband of the deceased, is concerned, was awarded the sentence which is too lenient in nature and should have been appropriately punished considering the evidence of cruelty and ill- treatment caused by him to his deceased wife Sunayna and the evidence proved beyond reasonable doubt by the prosecution in the above referred Sessions Case. That the learned trial Judge should have imposed the maximum sentence prescribed under section 306 of the IPC so far as the respondent no. 1 Hirasing was concerned. Despite the fact that he married the deceased Sunaynaben, yet he continued illicit relationship with the respondent no. 2 – Sunitaben and kept her as his concubine and used to bring her at his house even when the deceased was present in the house. That even on the day when the deceased committed suicide and died on account of burn injuries, while leaving the house, the respondent no. 1 had locked the house from the outside and therefore to save Sunaynaben, the door of the house was required to be broken open. Under such circumstances, it was submitted that the appeal be allowed and so far as respondent no. 1 Hirasing is concerned, he be awarded appropriate sentence in accordance with law. 5. None appeared for the respondents. 6. The present appeal for enhancement of sentence is preferred CR.A/1090/1996 5/7 JUDGMENT by the State of Gujarat u/s. 377 of the Cr. P C and in absence of any conviction appeal being filed by the respondents, we do not consider it necessary to enter into the merits of the case of the prosecution. Suffice it to say that the Ld. Addl. Sessions Judge in the impugned judgment properly appreciated the evidence adduced by the prosecution on record. Considering the deposition of complainant Babbusing, who is brother of the deceased, he categorically narrated the instances of ill-treatment caused by the respondent no. 1 to his deceased sister. According to his deposition, for sometime he stayed in the house of the respondent no. 1 along with his sister, deceased Sunayna and even in his presence, deceased was subjected to physical and mental cruelty by her husband. Even considering the deposition of witness Karansing Exh. 22, who is residing in the neighbourhood of the house of the respondent no. 1, he deposed in his deposition regarding cruelty and ill-treatment caused by the respondent no. 1 to his deceased wife. In short, in the impugned judgment the learned trial Judge properly appreciated and evaluated the evidence on record while convicting the respondent – accused no. 1 for the offences punishable under sections 498-A and 306 of the IPC. 7. As stated above, on behalf of the appellant – State, it is submitted that the sentence awarded to the respondent no. 1 is too lenient and inadequate. In this respect, first of all so far as the offence under section 498-A of the IPC is concerned, the learned trial Judge awarded sentence of RI of 3 years and fine of Rs.500/-. So far as the sentence of imprisonment is concerned, considering section 498-A of the IPC, it is the maximum sentence prescribed in it. For the offence punishable under section 306 of the IPC is concerned, the sentence which was awarded to CR.A/1090/1996 6/7 JUDGMENT the respondent no. 1 was RI for 3 years and fine of Rs.500/-. Considering the impugned judgment and order rendered by the learned trial Judge, at the time of awarding sentence for the offence under section 306 of the IPC, after hearing the learned advocate representing the accused on the question of quantum of sentence, the learned trial Judge took into consideration all the relevant facts emerged from the evidence on record as well as the submissions made on behalf of the respondent no. 1 accused on the question of quantum of sentence. 8. 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. 9. In light of the above discussion, it cannot be said that the discretion exercised by the learned trial Judge while fixing the quantum of sentence, the sentence is manifestly inadequate or results in failure of justice. At the same time, as stated above, the respondent no. 1 and even the respondent no. 2 both had undergone the entire sentence awarded to them and were released from the jail on 29/3/1997 and 30/1/1997 respectively and in light of the foregoing reasons, we do not find any merit in this appeal preferred by the State under section 377 of the Cr. PC. The appeal deserves to be dismissed and is hereby dismissed. ( A. L. DAVE, J.) CR.A/1090/1996 7/7 JUDGMENT ( J .C. UPADHYAYA, J. ) *Pansala.