Gujarat High Court
Savitaben Virjibhai Kalariya vs State Of Gujarat on 14 July, 2025
NEUTRAL CITATION
R/CR.A/1564/2025 JUDGMENT DATED: 14/07/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL (FOR ENHANCEMENT) NO. 1564 of 2025
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE VIMAL K. VYAS Sd/-
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Approved for Reporting Yes No
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SAVITABEN VIRJIBHAI KALARIYA
Versus
STATE OF GUJARAT & ANR.
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Appearance:
MR. NEEL DAVE for MR. S.D.MOGHARIYA(11273) for the Appellant(s) No. 1
MR. YUVRAJ BRAHMBHATT, APP for the Opponent(s)/Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE VIMAL K. VYAS
Date : 14/07/2025
ORAL JUDGMENT
1. The present Criminal Appeal has been filed by the appellant-original complainant under Section 413 of the Bharatiya Nagarik Suraksha Sanhita, 2023, for enhancement of the sentence imposed upon the respondent no.2 (i.e. original accused no.1), vide judgment and order dated 07.03.2025 passed by the learned Special Judge and Additional Sessions Judge, Fast Track (Special) Court, Morbi, in Sessions Case No.32 of 2016.
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2. By the aforesaid judgment and order of conviction and sentence, the learned Special Judge was pleased to convict the present respondent no.2 (i.e. original accused no.1) for the offences punishable under Sections 306, 498A and 323 of the Indian Penal Code, and consequently, sentenced him to undergo rigorous imprisonment for five years along with fine of Rs.10,000=00, and in default of payment of fine, to further undergo rigorous imprisonment for three months.
3. The case of the prosecution is that on 13.02.2016 sometime before 8 O'clock in the morning, the deceased had committed suicide at her matrimonial home by pouring kerosene on her person and setting her ablaze. It is alleged that the respondent no.2-original accused no.1 was doubting the character of his wife (i.e. the deceased) and he used to physically and mentally torturing the deceased and subjected her to cruelty. It is further alleged that the respondent no.2-accused no.1 was also pressurizing the deceased and demanding dowry from her father. Therefore, the deceased took an extreme step and she committed suicide by setting her ablaze. Page 2 of 17 Uploaded by M.A. SAIYED(HC00172) on Tue Jul 15 2025 Downloaded on : Tue Jul 15 22:58:57 IST 2025
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4. A complaint in this regard was lodged by the mother of the deceased before the Maliya (Miyana) Police Station, Morbi, which was registered vide I-CR No.14 of 2016 against the accused persons for the offences punishable under Sections 306, 498A, 323 read with Section 114 of the Indian Penal Code.
5. That pursuant to the complaint, the investigation was carried out, and during the investigation, the necessary panchnamas were drawn and the statements of the witnesses conversant with the incident were recorded. After completion of the investigation, the charge-sheet came to be filed against the present accused persons for the offences punishable under Sections 306, 498A, 323 read with Section 114 of the Indian Penal Code before the learned Judicial Magistrate, which was registered as Criminal Case No.200 of 2016. Since the case was exclusively triable by the Sessions Judge, the same came to be committed to the Sessions Court, which was registered as Sessions Case No.32 of 2016. The learned Sessions Judge framed the Charge against the accused persons vide Exh.12, whereupon the accused pleaded not guilty and claimed to be tried.
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6. To bring home the charge against the accused persons, the prosecution has examined, in all, 15 witnesses and adduced 21 documentary evidence in support of the case, which are as follow:
WITNESSES NO. NAME EXHIBIT
1. Savitaben Virjibhai Kalariya, Complainant 22 2. Virjibhai Takhubhai Kalariya, Witness 24 3. Hetalben Virjibhai Kalariya, Witness 31 4. Rasilaben Bharatbhai Satoniya, Witness 34
5. Pragjibhai Keshavjibhai Kalariya, Witness 35 6. Gitaben Pragjibhai Kalariya, Witness 40 7. Bhabuben Bipinbhai Vidja, Witness 53 8. Vanitaben Dayabhai Kalarya, Witness 54
9. Dr.Bhavinkumar Bhikhlal Bhatti, Medical Officer 60 10. Dhirajbhai Shambhubhai Kaila, Witness 65
11. Mahadevbhai Chaturbhai Kanjiya, Police Witness 66
12. Vikrabha Naranbha Gadhvi, Police Witness 69
13. Kripalsinh Chandrasinh Zala, Investigating Officer 81
14. Pradipkumar Ambashankar Vyas, Investigating 90 Officer
15. Nivar Khemshankar Vyas, Investigating Officer 93 DOCUMENTARY EVIDENCE SR. DESCRIPTION OF THE DOCUMENT EXHIBIT NO.1 Complaint 23 2 Inquest Panchnama 55 Page 4 of 17 Uploaded by M.A. SAIYED(HC00172) on Tue Jul 15 2025 Downloaded on : Tue Jul 15 22:58:57 IST 2025
NEUTRAL CITATION R/CR.A/1564/2025 JUDGMENT DATED: 14/07/2025 undefined 3 Panchnama of the place of the incident 56 4 Panchnama 57 5 Arrest Panchnama 58 6 Arrest Panchnama 59 7 Report for conducting postmortem 61 8 Death Certificate 62 9 Postmortem Note 63 10 Cause of death certificate 64 11 F.I.R. 67 12 Depute order for investigation 68 13 Depute order for investigation 70 14 Yadi to register the offence 82 15 Examination Report of the F.S.L. 83 16 Examination Report of the F.S.L. 84 17 Sanction letter, Forwarding letter and Outward entry 85 18 Abstract of Station Diary 91 19 Yadi to fill Inquest 92 20 Forwarding Letter 94 21 Muddamal Examination Report of the F.S.L. 95
7. The learned Special Judge recorded the further statement of the accused persons under Section 313 of the Cr.P.C. with regard to the incriminating circumstances made against them in the evidence rendered by the prosecution and the accused have denied the evidence produced by the prosecution and the charges levelled against them by pleading innocence and stated that they have been falsely implicated in the alleged offence. The accused have further submitted that they want to examine the Page 5 of 17 Uploaded by M.A. SAIYED(HC00172) on Tue Jul 15 2025 Downloaded on : Tue Jul 15 22:58:57 IST 2025 NEUTRAL CITATION R/CR.A/1564/2025 JUDGMENT DATED: 14/07/2025 undefined prosecution witnesses. The learned Sessions Judge, after appreciating the entire evidence on record; both, ocular as well as documentary, convicted the present respondent no.2-accused no.1 for the offence punishable under Sections 306, 498A and 323 of the Indian Penal Code, and consequently, sentenced him to undergo rigorous imprisonment for five years along with fine of Rs.10,000=00, and in default of payment of fine, to further undergo rigorous imprisonment for three months.
8. Being aggrieved and dissatisfied with the quantum of sentence awarded by the trial court, the appellant-original complainant has preferred the present appeal for enhancement of the sentence imposed upon the respondent no.2-accused no.1 mainly on the grounds that the sentence awarded by the trial court is inadequate and disproportionate to the offence committed by the respondent no.2-accused no.1 and the trial court has committed an error in taking a lenient view while imposing a lesser sentence.
SUBMISSION ON BEHALF OF THE APPELLANT-
COMPLAINANT.
9. Learned advocate Mr.Neel Dave for Mr.S.D.Moghariya, Page 6 of 17 Uploaded by M.A. SAIYED(HC00172) on Tue Jul 15 2025 Downloaded on : Tue Jul 15 22:58:57 IST 2025 NEUTRAL CITATION R/CR.A/1564/2025 JUDGMENT DATED: 14/07/2025 undefined learned advocate appearing for the appellant - original complainant has submitted that the trial court has, without assigning any adequate and special reasons, awarded inadequate sentence. The law in this regard is well-settled that while awarding the punishment, the court should take into consideration the nature of the offence, the circumstances under which it was committed and the degree of deliberation shown by the offender. Mr.Dave has submitted that the measure of punishment should be proportionate to the gravity of the offence. He has submitted that the punishment for the offence under Section 306 of the Indian Penal Code is imprisonment of either description for a term which may extend to ten years and shall also be liable to fine, and even though the respondent no.2 (i.e. original accused no.1) has been held guilty and convicted for the commission of offences punishable under Sections 306, 498A and 323 of the Indian Penal Code, yet the trial court has imposed a lesser sentence of rigorous imprisonment for five years along with fine of Rs.10,000=00.
10. Learned advocate Mr.Dave appearing for the appellant- complainant has submitted that the trial court, after considering Page 7 of 17 Uploaded by M.A. SAIYED(HC00172) on Tue Jul 15 2025 Downloaded on : Tue Jul 15 22:58:57 IST 2025 NEUTRAL CITATION R/CR.A/1564/2025 JUDGMENT DATED: 14/07/2025 undefined the evidence on record, more particularly, the fact that the respondent no.2-accused no.1 is quite young and having the responsibility to look after his family consisting of his old aged parents as well as the fact that the present respondent no.2- accused no.1 has no criminal antecedent, has imposed a lesser sentence (i.e. rigorous imprisonment for five years) for the offences punishable under Sections 306, 498A and 323 of the Indian Penal Code. However, in the facts of the present case, despite there being overwhelming evidence against the respondent no.2-accused, the trial court has awarded lesser sentence which, ultimately, will result into travesty of justice and spread a wrong message to the society. The trial court ought to have taken a deterrent view while imposing the sentence in such a serious offence. Learned advocate Mr.Dave has lastly submitted that taking into consideration the aforesaid circumstances as well as the severity and gravamen of the offence committed by the accused, the appeal is required to be admitted and allowed, thereby the sentence awarded by the trial court may be enhanced to the maximum punishment for the offences with which the accused has been charged. Page 8 of 17 Uploaded by M.A. SAIYED(HC00172) on Tue Jul 15 2025 Downloaded on : Tue Jul 15 22:58:57 IST 2025
NEUTRAL CITATION R/CR.A/1564/2025 JUDGMENT DATED: 14/07/2025 undefined SUBMISSION ON BEHALF OF THE RESPONDENT-STATE :
11. Learned APP Mr.Yuvraj Brahmbhatt appearing for the respondent-State, while opposing the present appeal, has made two-fold submissions, viz. (i) as per Section 413 of the Bharatiya Nagarika Suraksha Sanhita, 2023 (equivalent to Section 372 of the Code of Criminal Procedure, 1973), the present appeal is not maintainable; and (ii) while awarding lesser sentence, the trial court has assigned adequate and sufficient reasons, therefore, it cannot be said to be perverse or illegal. He has, therefore, submitted that the order of sentence passed by the trial court does not warrant interference by this Court. Learned APP Mr.Brahmbhatt has further submitted that the trial court, after appreciating the entire evidence on record; both, ocular as well as documentary, has rightly convicted the present respondent no.2 (i.e. the original accused no.1). It is submitted that while awarding lesser sentence (i.e. rigorous imprisonment for five years) upon the respondent-accused no.1 for the offence under punishable Sections 306, 498A and 323 of the Indian Penal Code, the trial court, at paragraphs 3 & 4 on page-45 of the judgment, has assigned assigned the reasons. In support of his arguments, learned APP Mr.Brahmbhatt has relied upon the Page 9 of 17 Uploaded by M.A. SAIYED(HC00172) on Tue Jul 15 2025 Downloaded on : Tue Jul 15 22:58:57 IST 2025 NEUTRAL CITATION R/CR.A/1564/2025 JUDGMENT DATED: 14/07/2025 undefined judgment of the Supreme Court in the case of Parvinder Kansal vs. State of NCT of Delhi, reported in AIR 2020 SC 4044, wherein the Supreme Court has held as under :
"9. Chapter XXIX of the Code of Criminal Procedure, 1973 deals with 'Appeals' and Section 372 makes it clear that no appeal to lie unless otherwise provided by the Code or any other law for the time being in force. It is not in dispute that in the instant case appellant has preferred appeal only under Section 372, Cr.PC. The proviso is inserted to Section 372, Cr.PC by Act 5 of 2009. Section 372 and the proviso which is subsequently inserted read as under:
"372. No appeal to lie unless otherwise provided. - No appeal shall lie from any judgment or order of a Criminal Court except as provided for by this Code or by any other law for the time being in force:
Provided that the victim shall have a right to prefer an appeal against any order passed by the Court acquitting the accused or convicting for a lesser offence or imposing inadequate compensation, and such appeal shall lie to the Court to which an appeal ordinarily lies against the order of conviction of such Court."Page 10 of 17 Uploaded by M.A. SAIYED(HC00172) on Tue Jul 15 2025 Downloaded on : Tue Jul 15 22:58:57 IST 2025
NEUTRAL CITATION R/CR.A/1564/2025 JUDGMENT DATED: 14/07/2025 undefined A reading of the proviso makes it clear that so far as victim's right of appeal is concerned, same is restricted to three eventualities, namely, acquittal of the accused; conviction of the accused for lesser offence; or for imposing inadequate compensation. While the victim is given opportunity to prefer appeal in the event of imposing inadequate compensation, but at the same time there is no provision for appeal by the victim for questioning the order of sentence as inadequate, whereas Section 377, Cr.PC gives the power to the State Government to prefer appeal for enhancement of sentence. While it is open for the State Government to prefer appeal for inadequate sentence under Section 377, Cr.PC but similarly no appeal can be maintained by victim under Section 372, Cr.PC on the ground of inadequate sentence. It is fairly well settled that the remedy of appeal is creature of the Statute. Unless same is provided either under Code of Criminal Procedure or by any other law for the time being in force no appeal, seeking enhancement of sentence at the instance of the victim, is maintainable. Further we are of the view that the High Court while referring to the judgment of this Court in the case of National Commission for Women v. State of Delhi & Anr. (2010) 12 SCC 599 has rightly relied on the same and dismissed the appeal, as not maintainable."
12. Relying upon the aforesaid decision of the Supreme Court, learned APP Mr.Brahmbhatt has, therefore, submitted that the present appeal filed by the appellant-complainant seeking Page 11 of 17 Uploaded by M.A. SAIYED(HC00172) on Tue Jul 15 2025 Downloaded on : Tue Jul 15 22:58:57 IST 2025 NEUTRAL CITATION R/CR.A/1564/2025 JUDGMENT DATED: 14/07/2025 undefined enhancement of the sentence is not maintainable and the same may be dismissed.
ANALYSIS AND FINDINGS :
13. Having heard learned advocates for the respective parties and having regard to the facts and circumstances of the present case, prima facie it appears that the trial court has convicted the present respondent no.2-accused for the alleged offence and imposed a short term of sentence of rigorous imprisonment for five years along with a fine of Rs.10,000=00. It prima facie appears that the appellant-original complainant has filed the present appeal for enhancement of the sentence on a very limited ground. It is an admitted fact that after the judgment of conviction and sentence passed by the trial court, the appellant- original complainant has preferred the present appeal.
14. Considering the provision of Section 413 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (equivalent to Section 372 of the Code of Criminal Procedure, 1973), the right of a victim is restricted to three eventualities, namely, (i) acquittal of the accused, (ii) conviction of the accused for lesser offence, or (iii) Page 12 of 17 Uploaded by M.A. SAIYED(HC00172) on Tue Jul 15 2025 Downloaded on : Tue Jul 15 22:58:57 IST 2025 NEUTRAL CITATION R/CR.A/1564/2025 JUDGMENT DATED: 14/07/2025 undefined for imposing inadequate compensation. While the victim is given an opportunity to prefer an appeal in the event of imposing inadequate compensation, but at the same time there is no provision for appeal by the victim for questioning the order of sentence as inadequate, whereas Section 418 of the BNSS gives the power to the State Government to prefer an appeal for enhancement of sentence. While it is open for the State Government to prefer an appeal for inadequate sentence under Section 418 of the BNSS, but at the same time, no appeal can be maintained by the victim under Section 413 of the BNSS on the ground of inadequate sentence. Thus, it is fairly well-settled that the remedy of appeal is creature of the Statute. Unless the same is provided either under the BNSS or by any other law for the time being in force, no appeal, seeking enhancement of sentence at the instance of the victim, is maintainable. In that view of the matter, this Court is of the considered opinion that the present appeal seeking enhancement of the sentence preferred by the appellant-original complainant is not maintainable. Even otherwise, perusing the order of sentence passed by the trial court, it does not appear to be perverse or illegal since while passing the order of sentence, the trial court has assigned Page 13 of 17 Uploaded by M.A. SAIYED(HC00172) on Tue Jul 15 2025 Downloaded on : Tue Jul 15 22:58:57 IST 2025 NEUTRAL CITATION R/CR.A/1564/2025 JUDGMENT DATED: 14/07/2025 undefined adequate and sufficient reasons for exercising its discretion.
15. This Court deems it fit to refer to the principles, as laid down by the Supreme Court in the case of Bed Raj vs. State of U.P., reported in AIR 1955 SC 778, governing exercise of powers by the High Court while enhancing the sentence imposed by the trial court, which reads thus :
"A question of a sentence is a matter of discretion and it is well settled that when discretion has been properly exercised along accepted judicial lines, an appellate court should not interfere to the detriment of an accused person except for very strong reasons which must be disclosed on the face of the judgment; see for example the observations in
-'Dalip Singh v/s. State of Punjab', and 'Nar Sigh v/s. State of Uttar Pradesh'.
In a matter of enhancement there should not be interference when the sentence passed imposes substantial punishment. Interference is only called for when it is manifestly inadequate. In our opinion, these principles have not been observed. It is impossible to hold in the circumstances described that the Sessions Judge did not impose a substantial sentence, and no adequate reason has been assigned by the learned High Court Judges for considering the sentence manifestly inadequate....."Page 14 of 17 Uploaded by M.A. SAIYED(HC00172) on Tue Jul 15 2025 Downloaded on : Tue Jul 15 22:58:57 IST 2025
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16. Admittedly, it appears from the bare perusal of the judgment of the trial court that the trial court, after taking into consideration the age of the respondent no.2 - accused and the responsibility of the accused to look after his family consisting of his old aged parents as well as the fact that the accused has no criminal antecedent, has imposed a lesser sentence (i.e. rigorous imprisonment for five years) for the offences punishable under Sections 306, 498A and 323 of the Indian Penal Code. The trial court, in paragraphs-3 & 4 on page-45 of the judgment, has assigned the reasons for awarding lesser sentence.
17. The punishment for the offence under Section 306 of the Indian Penal Code is imprisonment of either description for a term which may extend to ten years and shall also be liable to fine. Section 306 reads thus :
"306. Abetment of suicide.--If any person commits suicide, whoever abets the commission of such suicide, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine."
18. On the overall appreciation and reanalysis of the entire evidence, prima facie, it appears that the trial court, after taking into consideration the nature of the offence as well as the Page 15 of 17 Uploaded by M.A. SAIYED(HC00172) on Tue Jul 15 2025 Downloaded on : Tue Jul 15 22:58:57 IST 2025 NEUTRAL CITATION R/CR.A/1564/2025 JUDGMENT DATED: 14/07/2025 undefined circumstances and the manner in which it was occurred and also considering the fact that the respondent no.2-accused no.1 is quite young and having the responsibility to look after his family consisting of his old aged parents so also the fact that the present respondent no.2-accused no.1 has no criminal antecedent, has imposed a lesser sentence (i.e. rigorous imprisonment of five years along with a fine of Rs.10,000=00) for the offences punishable under Sections 306, 498A and 323 of the Indian Penal Code, which cannot be said to be perverse or illegal since the trial court has exercised its discretion to impose the minimum sentence. Therefore, this Court does not find any infirmity in the order passed by the trial court, since, while exercising the judicial discretion, the trial court has recorded sufficient and adequate reasons. This Court is satisfied with the reasoning assigned by the trial court on the aspect of sentence and, therefore, no interference is required to be made with the discretion exercised by the trial court. It is settled position of law that the question of sentence is a matter of discretion, and if sufficient reasons are recorded by the trial court, then the High Court should not interfere with the decision of the trial court on the issue of sentence.
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19. Considering the peculiar facts and circumstances of the present case as well as considering the principles as laid down by the Supreme Court in the cases of Bed Raj (supra) and Parvinder Kansal (supra), this Court is of the considered opinion that the findings recorded by the trial court while imposing the lesser sentence do not suffer from any perversity or illegality. The findings recorded by the trial court are absolutely just and proper, and in recording the same, no illegality or infirmity has been committed by the trial court. Therefore, this Court does not find any ground warranting interference with the order of sentence passed by the trial court.
20. On the facts and in the circumstances of the case, this Court is in complete agreement with the findings, ultimate conclusion and the resultant order of sentence passed by the trial court, therefore, no interference is warranted. The appeal, therefore, fails on both the counts (i.e. on the grounds of maintainability and propriety) and the same is hereby dismissed. Records and proceedings be sent back to the concerned court.
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