Gujarat High Court

State Of Gujarat vs Deepak @ Dipu Babulal Agrawal & ... on 19 March, 2015

Author:
Z.K.Saiyed

Bench:
Z.K.Saiyed

R/CR.A/20/2006 CAV JUDGMENT

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

CRIMINAL APPEAL NO. 20 of 2006

FOR APPROVAL AND SIGNATURE:

HONOURABLE MR.JUSTICE Z.K.SAIYED
==============================================================
1 Whether Reporters of Local Papers may be allowed to see Yes
the judgment ?

2 To be referred to the Reporter or not ? No

3 Whether their Lordships wish to see the fair copy of the No
judgment ?

4 Whether this case involves a substantial question of law as No
to the interpretation of the Constitution of India or any order
made thereunder ?

================================================================
STATE OF GUJARAT....Appellant(s)
Versus
DEEPAK @ DIPU BABULAL AGRAWAL & 1....Opponent(s)/Respondent(s)
================================================================
Appearance:
MRS HANSA PUNANI APP for the Appellant(s) No. 1
MR BUDHBHATTI FOR MS. KRISHNA U MISHRA, ADVOCATE for the Opponent(s)/Respondent(s) No. 1 - 2

================================================================
CORAM: HONOURABLE MR.JUSTICE Z.K.SAIYED

Date : 19/03/2015

CAV JUDGMENT

1. By way of present Appeal, the appellant State challenge the

judgment and order dated 24.6.2005 passed by the learned

Additional Sessions Judge and Fast Track Court No.6, Vadodara, in

Sessions Case No.13 of 2005, whereby the learned Sessions Judge

has convicted the respondents - accused persons for offences

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punishable under Section 498(A) read with
Section 114
of the

Indian Penal Code and sentenced to undergo one year simple

imprisonment and to pay fine amount of Rs.200/-, in default of

payment of fine, further simple imprisonment of one month. The

learned Sessions Judge was pleased to convict the accused No.1

for the offence punishable under
Section 323
of the Indian Penal

Code, but no separate sentence was imposed upon him. Learned

Sessions Judge was pleased to give benefit of probation under

Section 4
,
,
of Probation of Offenders Act as well as
Section 360

of the Code of Criminal Procedure to the respondent No.2 and

thereby suspended sentence for the offence punishable under

Sections 498(A) read with
Section 114
of the Indian Penal Code.

The learned Sessions Judge was also pleased to acquit the accused

No.2 for the offence punishable under
Section 504
of the Indian

Penal Code and he was also pleased to acquit the accused Nos.1

and 2 for the offence punishable under Sections 306 read with

Section 114
of the Indian Penal Code.

2. Short facts of the case of the prosecution are such that the

complainant Kamlaben, wife of the accused - respondent No.1 filed

complaint before "C" Division Police Station at Vadodara against

the respondents for the offences punishable under
Sections 323
,
,
498(A)
,
and
of the Indian Penal Code. It is the case of

the prosecution that the complainant belonged to Marathi

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community and prior to 11 years from the date of incident, she

was married with the accused accused - respondent No.1 by way

of love marriage. During her wedlock period, the complainant gave

birth two children i.e. son and daughter. The complainant and her

mother-in-law were residing separately in the same premise. As

per the case of the prosecution, on 23.10.2004, the respondents -

accused were suspecting about the character of the complainant

and she was beaten by the respondent No.1 and the respondent

No.2 gave filthy abuses to the complainant. The respondent No.2

had thrown away the the household materials and threatened the

complainant to give divorce. As per the case of the prosecution,

the respondent No.1 was present at that relevant point of time, as

he was sleeping in the house. Thus, the accused persons with

abetment of each other caused physical and mental torture to the

complainant and therefore, the complainant by pouring kerosene

on her and setting her at fire and thereby committed suicide and

during the course of medical treatment, she died. Thereafter, said

accused were also arrested. The statements of witnesses were

recorded and thereafter, charge-sheet was filed against the

accused before the learned Judicial Magistrate First Class,

Vadodara, who in turn committed the case to the Court of Sessions

as the same was exclusively triable by the Court of Sessions. The

accused pleaded not guilty for the charge and claimed to be tried.

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The main defence of the accused was that they were falsely

implicated in alleged offence.

2.1 To prove the case against the accused, the prosecution

examined following witnesses :

Sr. Name of the witnesses Exhibit
No.
P.W.1 Yogesh Bipinchandra Srivastava, Panch 10

P.W.2 Pravinbhai Madhavbhai Parmar, Panch 12

P.W.3 Miyamohmmad Ismailhai Lambawala, Panch 14

P.W.4 Mustaq Gulamrasul Mansuri, Panch 16

P.W.5 Dr. Vaishakhi Yashvantrai Shukla 17

P.W.6 Rajubhai Laxmanrav Godse, witness 21

P.W.7 Savitaben Lalmanrav, witness 22

P.W.8 Narayanrav Babulal Agarwal, witness 23

P.W.9 Mayuriben Shivprasad Babulal, witness 24

P.W.10 Kalidas Chhotabhai Mali, witness 25

P.W.11 Madhuben Vijaybhai, witness 26

P.W.12 Hirabhai Ramsingbhai Rathva, A.S.I. 27
P.W.13 Gurupritsinh Surendrasinh Swyan, P.S.I. 33

P.W.14 Karamsinh Arjanbhai Desai, ACP 41

P.W.15 Rohitkumar Saburbhai Variya, Ex. Magi. 15

2.2 The prosecution has also produced documentary evidence,

which are as under :

Sr. Documents Exhibit
No.

1 Panchnama - Scene of offence 11

2 Inquest Panchnama 13

3 Arrest Panchnama 15

4 Yadi for P.M. 18

5 Police report - dying 19

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6 P.M. note 20

7 Report for registering the offence 28

8 Entry in Station diary 29

9 Worthi for dispensary 30

10 Entry in station diary for dispensary 31

11 Intimation made by the Police about the death of 32
deceased

12 Report - consciousness of the deceased 34

13 Letter for recording Dying Declaration 35

14 Report for drawing panchnama to the FSL 36

15 Sections added report 37

16 Ravangi Nondh 38

17 Receipt of FSL 39

18 Forwarding letter and report of FSL 40

19 Complaint 42

20 Dying declaration 44

2.3 Thereafter, statements under
Section 313
of the Code of

Criminal Procedure were recorded, wherein the accused stated

that they are innocent and they have not committed alleged

offence and the evidence are not reliable, acceptable and

trustworthy. After hearing at length and on perusal of the evidence

on record, the learned Sessions Judge observed that the

prosecution has proved the case against the accused beyond

reasonable doubt and therefore, learned Sessions Judge passed

the judgment and order as stated hereinabove.

3. Heard learned APP Mrs. Punani appearing for the appellant -

State and learned advocates Mr. Buddhbhatti along with Ms.

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Krishna Mishra for the respondents.

4. Learned APP submitted that present appeal is preferred by

the State against aforesaid impugned judgment and order and

specifically, the acquittal for the offences punishable under Section

306 read with
Section 114
of the Indian Penal Code. She further

submitted that here in this case, dying declaration of the deceased

was recorded by authorized person i.e. Executive Magistrate and

the complaint was given by the deceased herself, even though, the

learned Sessions Judge has not considered the said material

aspects i.e. complaint and dying declaration, while passing

impugned judgment and order. She read the complaint at Exhibit

42 and submitted that said complaint was lodged by the deceased

herself after the incident, on 25.10.2004, wherein she stated that

the respondents accused meted out cruelty upon her by keeping

suspicion over her character. The deceased also stated that the

appellant No.1 beaten her with the wooden piece used for washing

the cloths. The respondent No.2 had thrown the household

materials of the complainant outside the home and told the

deceased to give divorce. The complaint also reveals that the

respondents accused were harassing the deceased and therefore,

the deceased decided to commit suicide. Therefore, the deceased

poured kerosene on her own and set her at fire. Learned APP

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therefore, submitted that the respondents accused were

suspecting about her character and they had also beaten her.

Therefore, it can be said that the respondents accused were

harassing and beating her and therefore, the deceased died by

committing suicide. She read the evidence of P.W.6 Rajubhai

Godse, P.W. 7 Savitaben, P.W. 8 Narayan Agarwal, P.W.9

Mayuriben, P.W.10 Kalidas Mali and P.W.11 Madhuben and

submitted that all these witnesses in their respective evidence

stated that due to stove burst, the deceased died, but, later on, all

these witnesses turned hostile. But, from the statement before the

police, these witnesses did not state about said accident. Learned

APP further submitted that looking to the panchnama, the stove

was found as it was and it was not burst and even it was empty i.e.

without kerosene. She further submitted that looking to the

evidence of Dr. Vaishakhi, it appears that the burning of deceased

was from first degree to third degree and looking to the P.M. note,

it appears that the reason for death is not accident, but it appears

that the deceased on her own poured kerosene and fired her.

Learned APP read the dying declaration of the deceased, which

was recorded by the Executive Magistrate, Rohitkumar Variya, who

is P.W.15, wherein it was stated by the deceased that due to

harassment caused by the accused, i.e. her mother-in-law and her

husband and even she was beaten by them, she poured kerosene

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on her own. Learned APP further submitted that said P.W.15,

Rohitkumar also stated in his evidence that the respondents were

suspecting about the character of the deceased and therefore,

quarrel took place between them. It also reveals from his evidence

that the respondents accused were harassing and beating the

deceased. This witness also stated that before recording dying

declaration, he verified from the Doctor about consciousness of the

deceased and said Doctor endorsed same at Exhibit 35.
Learned

APP read other evidence of the witnesses, but as per her

submission, the complaint, dying declaration and evidence of

P.W.15, Executive Magistrate, are sufficient to prove the case

against the accused so far as abetting the deceased in committing

suicide. Therefore, she submitted that the ingredients of the

alleged offence can be said to be proved against the respondents

accused. But the learned Sessions Judge has not considered the

main material documents i.e. dying declaration and complaint of

the deceased during the course of medical treatment. Learned APP

in this connection, relied upon the decision in the case of
Laxman

Vs. State of Maharashtra
reported in GLH 2003(1) Vol. XLIV (1),

wherein Hon'ble Supreme Court held that "where it is proved by

testimony of Magistrate that declarant was to fit to make the

statement even without examination by the Doctor the declaration

can be acted upon provided the Court ultimately holds the same to

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be voluntary and truthful." Learned APP, therefore, submitted that

the same dying declaration was required to be considered in true

and right spirit by the learned Sessions Judge. Learned APP lastly

prayed to allow present appeal by quashing and setting aside the

impugned judgment and order and the respondents are required

to be convicted and sentenced for the offences punishable under

Sections 498(A) and 306 read with
Section 114
of the Indian Penal

Code.

5. As against, learned advocate Mr. Buddhbhatti along with

learned advocate Ms. Mishra appearing for the respondents

submitted that the witnesses i.e. P.W.6 Rajubhai Godse, P.W. 7

Savitaben, P.W. 8 Narayan Agarwal, P.W.9 Mayuriben, P.W.10

Kalidas Mali and P.W.11 Madhuben examined by the prosecution,

who are relatives of the deceased and the said witnesses

themselves declared hostile, then there is no question of alleged

offences against the accused and therefore, learned advocates

submitted that learned Sessions Judge wrongly convicted and

sentenced the respondent No.1 without there being any cogent

evidence. So, the impugned judgment and order is required to be

quashed and set aside and so far as respondent No.1 is required to

be acquitted for the offence punishable under
Section 498-A
of

the Indian Penal Code. Learned advocates submitted that even

when the recording of the dying declaration, the deceased was not

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in fit mind to give her statement. They also submitted that the

deceased sustained burn injuries on overall her body and

therefore, she was not in condition to give her statement in form of

dying declaration. Learned advocates further submitted that the

deceased sustained injuries due to stove burst and therefore, she

died and hence, it is not a case of suicide. Learned advocates

further submitted that the documents produced on record, are not

corroborating the evidence of the witnesses examined by the

prosecution and there are so many contradictions. Learned

advocates further submitted that P.W. 15, Executive Magistrate,

examined by the prosecution, recorded the dying declaration of

the deceased, but the deceased was not in fit condition to give

statement and therefore, the evidence of this witness cannot be

believed. Learned advocates further submitted that looking to

overall evidence, it is not established that the accused abetted or

instigated the deceased to commit suicide and died or it is also not

established that the respondents were harassing the deceased by

torturing or beating by suspecting about her character. They also

submitted that looking to the dispute, the respondents were

suspecting over the character of the deceased, but what type of

suspicious on the part of the respondents accused is not proved by

the prosecution.

6. Learned advocates for the respondents submitted that

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learned Sessions Judge has rightly acquitted the respondents

accused for the charges levelled under
Section 306
of the Indian

Penal Code because the offence as alleged is not established by

the prosecution by any cogent evidence.
In support their

submission, they relied upon the case of
Hans Raj. Vs. State of

Haryana
reported in AIR 2004 Supreme Court 2790 and

submitted that presumption under
Section 113A
of the Evidence

Act could not be invoked to find accused husband guilty of offence

under
Section 306
of the Indian Penal Code. Therefore, in the

instant case, when the offence under
Section 306
of the Indian

Penal Code is not proved against the accused, then here there is

no question of convicting the accused for the said alleged offence.

The learned advocates further submitted that in the present case,

the alleged offence is not established against the accused by the

prosecution and the witnesses were declared hostile and the

version of the witnesses for the cause for death is bursting of stove

come out from the oral evidence, the respondent No.1 is required

to be acquitted for alleged offence under
Section 498 A
of the

Indian Penal Code. Lastly, the learned advocates submitted that

the appeal is required to be dismissed.

7. Heard both the parties and perused the record of the case. I

have also minutely perused the impugned judgment and order of

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conviction passed by the learned Sessions Judge.

8. Now, here, looking to the complaint, it reveals that the

deceased was harassed by the respondents accused and she was

beaten by wooden piece used for washing cloth and the

respondent No.2 forced the deceased to give divorce. Therefore,

the deceased poured kerosene on her and set her at fire. Here the

question is required to be considered such that the deceased gave

birth two children out of her wedlock and even though she

committed suicide by leaving them on their position. Other aspect

is the evidence of the witnesses i.e. P.W.6 Rajubhai Godse, P.W. 7

Savitaben, P.W. 8 Narayan Agarwal, P.W.9 Mayuriben, P.W.10

Kalidas Mali and P.W.11 Madhuben are relatives of the deceased

but they turned hostile and they have not supported the

prosecution case. Here the material aspect is such that the

complaint which was lodged by the complainant herself before the

Assistant Police Commissioner, "C" Division Police Station,

Vadodara, on 25.10.2004, wherein the deceased stated that the

accused meted out cruelty on her and she was beaten and told her

to give divorce to the appellant No.1. She also stated that the

respondents accused were suspecting about her character and

therefore, they were harassing her. Therefore, she poured

kerosene on her and set her at fire. This complaint was given by

the deceased herself against the accused. Secondly, the dying

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declaration which was recorded by the P.W.15, Rohitkumar Variya,

Executive Magistrate, clearly states the aforesaid version given by

the deceased. It is also established fact that the cause of death is

not stove burst or accident, because the stove was not damaged

by any side and if the same was burst, then it was not stated in the

Panchnama. I have minutely perused the evidence of the

witnesses and documentary evidence produced on record. I have

also perused the yadi at Exhibit 35 which was addressed to the

Sub Divisional Magistrate, Vadodara City informing to record dying

declaration of the deceased. From the evidence of P.W.15,

Rohitkumar Variya, Executive Magistrate, it appears that the

Doctor endorsed that the deceased was in fit state of mind and

capable to give her dying declaration.
Therefore, it cannot be said

that the deceased was not fit to give her statement at the relevant

point of time while recording her dying declaration before the

Executive Magistrate. Therefore, it clearly appears that the

complaint, dying declaration and oral evidence of P.W.15 are

leading to prove the offence against the accused. From the various

decisions of the Hon'ble Supreme Court as well as High Court,

dying declaration can be considered as the base of the conviction.

For the said purpose, I have considered the
ratio
laid down in
the

case of
Patel Hiralal Joitaram Vs. State of Gujarat
reported in

AIR 2001 SC 2944, wherein it is observed that :

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"Section 32(1) relates tot eh statement made by a
person before his death. Two categories of statement
are made admissible in evidence and further made
them as substantive evidence. They are: (1) His
statement as to the cause of his death; (2) His
statement as to any of the circumstances of the
transaction which resulted in his death. The second
category can envelope a far wider amplitude than the
first category. The words statement as to any of the
circumstances are by themselves capable of expanding
the width and contours of the scope of admissibility.
When the word circumstances is linked to transaction
which resulted in his death the sub-section casts the
net in a very wide dimension. Anything which has a
nexus with his death, proximate or distant, direct or
indirect, can also fall within the purview of the
subsection. As the possibility of getting the maker of
the statements in flesh and blood has been closed once
and for all the endeavour should be how to include the
statement of a dead person within the sweep of the
sub-section and not how to exclude it therefrom.
Admissibility is the first step and once it is admitted the
court has to consider how far it is reliable. Once that
test of reliability is found positive the court has to
consider the utility of that statement in the particular
case.

9.
In another case of
Bhola Turha Vs. State of Bihar
reported

in AIR 1998 SC 1515, it observed by the Hon'ble Supreme Court

as under :

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"Dying declaration was made by the deceased within
about two hours from the incident and a few hours
before his death. In his dying declaration, he has
clearly explained how he came to be injured by the
appellant.

The eye witness did not support the prosecution
and were declared hostile. Courts below were fully
justified in replying upon the dying declaration and
convicting the appellant."

10. Now, here in this case, the complaint as well as dying

declaration were given by the deceased herself and therefore, it

cannot be discarded as it has evidentary value for deciding the

main factor of abetment, instigation in the case of committing the

suicide by the deceased.

11. Another case of
Shanmugam Vs. State of Tamil Nadu

reported in AIR 2003 SC 209, wherein the Hon'ble Supreme Court

observed as under :

"That the dying declaration can form the sole basis for
conviction is too well settled by a catena of decisions.
The dying declaration clearly implicates the accused.
The dying declaration in Ex. P. 16 contains the
questions and relevant details of the incident. There
are no suspicious features which affect the credibility
of the dying declaration. There is no apparent reason
why the deceased should think of want only roping in
his brother in the murderous attack. The mere fact
that the victim did not make any reference to the

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injuries received by the accused is not a ground that
merits rejection of dying declaration. The Judicial
Magistrate who was examined as P.W.11 categorically
stated that he satisfied himself that the victim was
conscious and was in a position to make the statement
and he also made an endorsement on P. 16 about the
consciousness of the patient. There mere fact that the
Doctor in whose presence Ex P. 16 was recoded was
not examined does not affect the evidentiary value to
be attached to the dying declaration. "

12.
In another case of
Ramavati Vs. State of Bihar
reported in

AIR 1983 SC 164, wherein it is observed by the Hon'ble Supreme

Court as under :

"Dying declaration recorded by the Police Sub-
Inspector is admissible and can be relied for conviction.
It is significant to note that in the course of cross-

examination of the witness proving the dying
declaration, no questions were put as to the state of
health of the deceased and no suggestion was made
that the deceased was not in a fit state of health to
make any such statement. The doctor's evidence also
clearly indicates that it was possible for the deceased
to make the statement attributed to her in the dying
declaration in which her thumb impression had also
been affixed. In the instant case, it cannot also be said
that there is no corroborative evidence of the
statement contained in the dying declaration. The
evidence of P. Ws. 1, 4, 5 and 8 clearly corroborates
the statement recorded in the dying declaration, we do

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not find any material on record on the basis of which
the testimony of these witnesses can be disbelieved. It
may also be noticed that none of these witnesses
including the Police Officer who recorded the
Statement could be attributed with any kind of ill-
feeling against the accused."

13.
In the case of
State of Assam Vs. Muhim Barkatari

reported in AIR 1987 SC 98, it is held by the Hon'ble Supreme

Court that "the deceased had sense and he was speaking. There

was no cross-examination on this point. Meaning thereby, the

dying declaration is relied upon for the base of conviction and

sentence. Here, in this case, the deceased gave her dying

declaration before the Executive Magistrate stating that due to

harassment of the respondents accused, she committed suicide. In

support of her said dying declaration, the complaint can be said as

proved.

14. Looking to the aforesaid all the decisions of the Hon'ble

Supreme Court, it clearly appears that the dying declaration is

material and important document for holding the accused guilty.

So, I am of the opinion that in the present case, same can be

considered as base for ascertaining the role on the part of the

accused persons as stated by the deceased in her complaint as

well as in the dying declaration and same are said to be

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trustworthy and reliable as they are corroborating each other.

15. From the perusal of the case, it appears that the marriage life

of the accused No.1 and deceased was of 10 years. In the present

case, the deceased when she was neglected by her husband and

her mother-in-law by saying to give divorce, means that the

accused meted out cruelty and thereby abetted the deceased to

commit suicide. It is natural that a lady, who is having minor

children, may not think to commit suicide. This behaviour of the

accused shows that there was tremendous provocation on the part

of the accused which led the deceased to commit suicide. Here in

this case, the accused had not committed only mental cruelty, but

he also meted out physical cruelty to the deceased and therefore,

the deceased took decision to end her life by committing suicide.

Said ingredients of provocation, instigation are covered by
Section
of the Indian Penal Code are proved by the prosecution

beyond reasonable doubt. I have perused the provisions of Section

306 and 498-A as well as
Section 107
and
of the Indian Penal

Code as well as also perused provisions of
Section 113-A
of the

Evidence Act and I have perused the difference of the provisions of

laws. Here in the present case, the willful conduct on the part of

the accused is proved, as the accused intentionally caused torture

to the deceased, which was driven the wife to commit suicide. The

cruelty is sufficiently proved against the accused as per the

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provisions of
Section 498(A)
of the Indian Penal Code. Therefore, it

can be said that cruelty on the part of the husband is proved by

the provisions of
Section 113(A)
of the Evidence Act, as abetment

on the part of the husband and his mother, accused led the wife to

commit suicide. Abetment means a person abets the doing of a

thing who instigates a person to do that thing. Here in this case,

there is no any irregularity or ambiguity in the dying declaration,

as the same was given by the deceased in her absolute conscious

position as stated by the P.W.15 Rohitkumar, Executive Magistrate,

who recorded dying declaration and she was fit to give the

statement before him and also she gave her complaint in very

conscious position before the police. Therefore, there is no

question to discard this evidence given by the deceased herself

before dying in the hospital. Therefore, the alleged offence against

the accused is very well proved.

16. In various decisions of Hon'ble Apex Court made observation

that punishment should not be so lenient that it shocks the

conscience of the society being abhorrent to the basic principles of

sentencing. Therefore, it is clear that the accused is required to be

punished for his offence and for such purpose, the lenient view

should not be taken by the Court while sentencing the accused for

the alleged offence which is committed by him and same is proved

against him.

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17. In view of the above, I am of the opinion that the accused

abetted or provoked the deceased to commit suicide and died and

therefore, the accused are required to be convicted as they are not

innocent persons. The accused caused cruelty upon her by beating

with the wooden piece used for washing cloth and taunting her.

Thereafter, the incident was occurred and during the course of

medical treatment, the deceased narrated in her complaint as well

as dying declaration about the cruelty meted out by the accused

husband and her mother-in-law. In these circumstances, the

accused is liable to be convicted and sentenced for the alleged

offence.

18. I have taken into consideration the provisions of
Section 306

and
498-A
of the Indian Penal Code which are quoted as under :

"Section 306 :

Abetment of Suicide - if any person commits suicide,
whoever, abets the commission of the suicide, shall be
punished with imprisonment of either description for a
term which may extent to ten years and shall also be
liable to fine.

"Section 498-A : Husband or relative of husband of a
woman subject her to cruelty - whoever, being the
husband or the relative of the husband of a woman,
subjects such woman to cruelty shall be punished with
imprisonment for a term which may extend to three
years and shall also be liable to find."

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19. From the bare reading of
Section 498-A
of the Indian Penal

Code, it is clear that if the husband or relative of the husband of a

woman subject such woman to cruelty, they shall be liable for

punishment mentioned therein. Moreover, the Explanation to

Section 498-A
Indian Penal Code defines "cruelty" for the purpose

of
Section 498-A
IPC to mean (a) any will conduct which is of such

a nature as is likely to drive the woman to commit suicide or to

cause grave injury or danger to life, limb or health (whether

mental or physical) of the woman or (b) harassment of the woman

where such harassment, is with a view to concerning her or any

person related to her to meet any unlawful demand for any

property or valuable security or is on account of failure by her or

any person related to her to meet such demand. A reading of

Section 113-A
of the Evidence Act, 1872 will show that for the

purpose of Section 113-A, the "cruelty" shall have the same

meaning as in
Section 498A
of Indian Penal Code. I have also

perused the provisions of
Section 107
and
of the Evidence Act

in connection of the evidence produced by the prosecution.

20. Here in present case, no doubt the learned Sessions Judge

convicted the accused persons for the offence punishable under

Section 498-A
of the Indian Penal Code and sentenced simple

imprisonment for one year and to pay a fine of Rs.200/- each, in

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default, further S.I. for one month. Thereafter, the learned Sessions

Judge acquitted the accused No.2 by considering the provisions of

Section 360
of the Indian Penal Code or gave the benefit of

probation under the provisions of
Section 4
,
,
of the Probation of

Offenders Act. From the bare reading of the operative order

portion, it appears that the learned Sessions Judge has held the

respondent No.1 guilty, but, not awarded sentence by ordering

that no separate sentence is required to be awarded to the

accused No.1 for the offence punishable under
Section 306
of the

Indian Penal Code. Therefore, it is crystal clear that the both

accused were held guilty for the alleged offence, no doubt, learned

Sessions Judge by considering age and responsibility of the

children of the accused No.1, granted bail by suspending the

aforesaid sentence and under the provisions of
Section 360
of the

Code of Criminal Procedure or
Sections 4
,
,
of the Probation of

Offenders Act, and imposed some conditions.

21. In view of the above operative portion of the impugned

judgment and order passed by the learned Sessions Judge, it

appears that the learned Sessions Judge has committed grave

error in imposing sentence to the accused persons, specifically,

the benefits was given to the accused No.2. Therefore, the

impugned judgment and order passed by the learned Sessions

Judge is required to be quashed and set aside. Here, it is

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R/CR.A/20/2006 CAV JUDGMENT

established fact that the accused committed alleged offence,

which is proved by the judgment and order of the learned Sessions

Judge and therefore, the accused are required to be punished for

the alleged offence. Hence, this Court pass following order :

(a) Present Appeal is allowed.

(b) The judgment and order dated 24.6.2005 passed by the

learned Additional Sessions Judge and Fast Track Court No.6,

Vadodara, in Sessions Case No.13 of 2005, is hereby

quashed and set aside.

(c) The respondents - accused are convicted for the

offence punishable under Section 306 of the Indian Penal

Code, and to undergo sentence of 7 years R.I. and to pay fine

of Rs.2,000/- each, in default, further one year R.I.

(d) So far as sentence imposed upon the respondent No.1

by the learned Sessions Judge for the offence punishable

under
Section 498(A)
of the Indian Penal Code is concerned,

same shall remain unaltered.

(e) The respondent No.2 is convicted for the offence

punishable under Section 498(A) of the Indian Penal Code,

and to undergo sentence of 1 years S.I. and to pay fine of

Rs.2,00/-, in default, further one month S.I.

(f) The period during which the accused remained in
prison, shall be given set off.

(g) All the sentences shall run concurrently.

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R/CR.A/20/2006 CAV JUDGMENT

(h) The respondents - accused are hereby ordered to

surrender before the concerned Jail Authority within a period

of four weeks from today. Their bail bonds stand cancelled.

(i) R & P to be sent back to the concerned trial court

forthwith.

(Z.K.SAIYED, J.)
YNVYAS

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