Rajeshbhai @ Rajendrasinh ... vs State Of Gujarat
2023 Latest Caselaw 4492 Guj

     R/CR.A/1339/2013                              JUDGMENT DATED: 15/06/2023




           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                    R/CRIMINAL APPEAL NO. 1339 of 2013

FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK

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1     Whether Reporters of Local Papers may be allowed to               NO
      see 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          NO
      as to the interpretation of the Constitution of India or
      any order made thereunder ?

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     RAJESHBHAI @ RAJENDRASINH FATESINH PARMAR & 3 other(s)
                            Versus
                       STATE OF GUJARAT
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Appearance:
H B SHETHNA(2436) for the Appellant(s) No. 1,2,3,4
MR.TIRTHRAJ PANDYA, APP for the Opponent(s)/Respondent(s) No. 1
SHAUKAT A SHAIKH(2319) for the Opponent(s)/Respondent(s) No. 2
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    CORAM:HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK

                             Date : 15/06/2023
                             ORAL JUDGMENT

1] The present appeal is filed by appellants-original accused

under the provisions of Section 374(2) of the Criminal

Procedure of Code, 1973 against the judgment and order of

conviction dated 29.08.2013 passed by 5th Additional Sessions

R/CR.A/1339/2013 JUDGMENT DATED: 15/06/2023

Judge, Nadiad in Sessions Case No. 131 of 2011.

2] The appellant No. 1 is convicted by trial court for offences

punishable under Section 306 of Indian Penal Code, 1860 (IPC)

for a period of 10 years rigorous imprisonment and also imposed

a fine of Rs.5,000/- upon him and i/d of making payment of fine,

applicant no. 1 has to undergo for further period of 2 months

simple imprisonment. The trial Court has also convicted the

appellant no. 1 for offences punishable under Sections 498(A)

and 114 of the IPC for a period of 3 years rigorous

imprisonment and has also imposed a fine of Rs.1,000/-, i/d of

making payment of fine, the appellant has to undergo for further

period of two (02) months simple imprisonment. The trial Court

has convicted appellants No. 2 to 4 for the offences punishable

under Sections 498(A) and 114 of IPC for a period of three (03)

years rigorous imprisonment and also imposed a fine of

Rs.1,000/- each and i/d of making payment of fine, the

appellants has to undergo for further period of two months

rigorous imprisonment.

R/CR.A/1339/2013 JUDGMENT DATED: 15/06/2023

3] Feeling aggrieved and dissatisfied by the order of

conviction, the appellants has preferred the present appeal. The

same appeal came to be admitted vide order dated 26.09.2013.

4] It appears that, on 27.09.2013, the appellants enlarged on

bail during the pendency of present appeal by Coordinate Bench

of this Court by giving reasoned order. During the pendency of

this appeal, there was a settlement between family members of

the wife, who has unfortunately taken a step to commit suicide.

Now, the brother of the deceased is joined as a party

respondent No.2 in appeal, who filed affidavit before this Court

on 16.03.2022. The other family members of deceased i.e.

mother, uncle and aunt have also supported the version of

respondent no. 2 and for that they have also filed respective

affidavits in support of the averments made in affidavit filed by

respondent no. 2. The same is on record.

5] Considering the fact that as the deceased, being a sister of

respondent No.2, whose marriage solemnized with appellant

No.1 i.e. Rajeshbhai but because of some household dispute and

under the heat of moment, the deceased has taken unfortunate

R/CR.A/1339/2013 JUDGMENT DATED: 15/06/2023

step to commit suicide, and therefore, the relative of the

deceased has lodged FIR being I-C.R.No. 100 of 2011 with

Nadiad (Rural) Police Station, Nadiad, and after some time, the

appellants along with other family members have started giving

mental and physical torture to the deceased on account of

household work and demanding the dowry and taking up

quarrel with the deceased. With these allegations, FIR came to

be registered after the death of the deceased. The FIR is

investigated by the Investigation Officer and after having

sufficient evidence found against accused persons, a charge

sheet came to be filed before the court of concerned Magistrate.

As the case is exclusively triable by Court of Sessions, the same

is committed to the concerned Sessions Court and the same is

registered as Sessions Case No. 131 of 2011. The prosecution

has examined 19 witnesses to prove the charge against the

appellants and also produced plethora of documentary evidence

i.e. upto 25.

6] After hearing the arguments of both the sides, the learned

trial Court was pleased to convict the present appellants.

Feeling aggrieved and dissatisfied by the order of conviction,

R/CR.A/1339/2013 JUDGMENT DATED: 15/06/2023

the appellants has preferred the present appeal.

7] Considering the averments made in the affidavit filed by

Sanjaysinh Pratapsinh Chauhan son of Pratapsinh Amarsinh

Chauhan, who is brother of deceased has stated in the affidavit

that as there is no dispute with regard to untimely death of the

deceased and no grievance or grudge against the appellants,

and therefore, they have no objections, if the appeal can be

heard and decided. The respondent no. 2, who is brother of

original complainant represented today through his advocate

i.e. Ms. Megha Dave, learned advocate on behalf of

Mr.S.A.Shaikh, learned advocate on record for the respondent

No.2 and endorsed the affidavit and the averments made in the

affidavit.

8] It is relevant to note herein that the offence is registered

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

IPC. The same is non-compoundable offence and therefore, this

Court cannot ignore the provisions of Section 306 of IPC.

306. Abetment of suicide.--If any person commits suicide, whoever abets the commission of such suicide, shall be punished with imprisonment of

R/CR.A/1339/2013 JUDGMENT DATED: 15/06/2023

either description for a term which may extend to ten years, and shall also be liable to fine.

9] Considering the ratio laid down by the Hon'ble Supreme

Court and by this Hon'ble Court in the judgment and order

dated 05.04.2023 in Criminal Appeal No. 418 of 2007, this Court

is of the opinion that the present appeal can be disposed of and

the conviction imposed by concerned trial court be altered and

the period of undergone, which the accused are undergone,

which the accused have undergone can be considered as

conviction.

10] In the case of Manjit Singh (supra), the Hon'ble

Supreme Court has held and observed in paragraphs No.13 and

14 as under:-

"5. Section 307 I.P.C. is a non-compoundable offence. No permission can be granted to record the compromise between the parties. In Ishwar Singh v. State of Madhya Pradesh, (2008) 15 SCC 667, the Supreme Court of India has held that in a non- compoundable offence the compromise entered into between the parties is indeed a relevant circumstance which the Court may keep in mind for considering the quantum of sentence. In Paras (13) and (14) of the judgment in Ishwar Singh (supra) this Court has held as under:

"13. In Jetha Ram v. State of Rajasthan, (2006) 9 SCC 255, Murugesan v. Ganapathy Velar, (2001) 10 SCC 504 and Ishwarlal v. State of M.P., (2008) 15 SCC 671, this Court, while taking into account the fact of compromise between the parties, reduced sentence imposed on the appellant accused to

R/CR.A/1339/2013 JUDGMENT DATED: 15/06/2023

already undergone, though the offences were not compoundable. But it was also stated that in Mahesh Chand v. State of Rajasthan, 1990 Supp. SCC 681 such offence was ordered to be compounded.

14. In our considered opinion, it would not be appropriate to order compounding of an offence not compoundable under the Code ignoring and keeping aside statutory provisions. In our judgment, however, limited submission of the learned counsel for the appellant deserves consideration that while imposing substantive sentence, the factum of compromise between the parties is indeed a relevant circumstance which the Court may keep in mind."

As noted earlier, in the present case the appellant accused, Manjit Singh, has been sentenced to undergo imprisonment for five years. The appellant is said to have served seventeen months of imprisonment. Taking note of the compromise entered into between the parties and considering the relationship of the parties and the facts and circumstances of the case and also the sentence undergone by the appellant accused, the sentence of imprisonment imposed upon the appellant under Sections 307 and 324 I.P.C. is reduced from five years/two years to the period already undergone by him. The appellant is ordered to be released forthwith unless his presence is required in any other case. In view of the compromise entered into between the parties, the fine amount of Rs.50,000/- imposed upon the appellant is set aside. If the said fine amount has already been paid, the same shall be refunded to the appellant-Manjit Singh."

11] In the case of Sy. Azhar S. Kalandar (supra), the Hon'ble

Supreme Court has held and observed in paragraphs No.11 to

14 as under:-

"11. In almost the same circumstances which have been noticed by us, a three Judge Bench of this Court in a recent judgment in Murali Vs. State represented by Inspector of Police, 2021(1) SCC 726 where the parties decided to forgive their past and live amicably, this Court has come to their rescue by interfering in the quantum of sentence which obviously is not compoundable

R/CR.A/1339/2013 JUDGMENT DATED: 15/06/2023

under Section 320 Cr.P.C. but has interfered since there is no minimum sentence prescribed. This Court in Murali(supra), has taken note of the judgment of this Court in Ram Pujan and Others Vs. State of U.P., 1973(2) SCC 456 which was further followed by this Court in Ishwar Singh Vs. State of M.P .3 and the later decisions as referred to in paras 11 and 12 of the judgment has taken note of the compromise between the parties to reduce the sentence of the convicts even in serious non-

compoundable offences. The relevant paras are as follows:

"11. In later decisions including in Ram Lal v. State of J&K (1999) 2 SCC 213; Bankat v. State of Maharashtra (2005) 1 SCC 343; Mohar Singh v. State of Rajasthan (2015) 11 SCC 226; Nanda Gopalan v. State of Kerala (2015) 11 SCC 137; Shankar v. State of Maharashtra (2019) 5 SCC 166, this Court has taken note of the compromise between parties to reduce the sentence of the convicts even in serious non-compoundable offences.

12. Given this position of law and the peculiar circumstances arising out of subsequent events, we are of the considered opinion that it is a fit case to take a sympathetic view and reconsider the quantum of sentences awarded to the appellants. We say so because: first, the parties to the dispute have mutually buried their hatchet. The separate affidavit of the victim inspires confidence that the apology has voluntarily been accepted given the efflux of time and owing to the maturity brought about by age. There is no question of the settlement being as a result of any coercion or inducement. Considering that the parties are on friendly terms now and they inhabit the same society, this is a fit case for reduction of sentence."

12. Taking into consideration the facts of the instant case and the circumstances arising out of the subsequent events, in our opinion, it is a fit case to take a sympathetic view and reconsider the quantum of sentence awarded to the appellant. We have recorded our satisfaction, based on the reasons, that the parties to the dispute have mutually settled their disputes and buried their past.

13. The joint affidavit inspires confidence that the apology as tendered by the appellant has voluntarily been accepted given the efflux of time and is not a result of any coercion or inducement. Considering that they are residing in the same village and are peacefully residing after the uncalled for incident has taken place, in our view, this appears to be a fit case for reduction of sentence.

R/CR.A/1339/2013 JUDGMENT DATED: 15/06/2023

14. Considering the overall facts on record and other mitigating factors and circumstances in which a crime has been committed including the nature of injury, period during which he remained under medical treatment, mental agony which the victim suffered and also the compromise entered into between the parties, while upholding conviction under Section 307 IPC, we deem it appropriate to reduce the quantum of sentence imposed on the appellant to five years rigorous imprisonment and to pay a fine of Rs. 10,000/and in default of payment of fine shall suffer further three months' rigorous imprisonment. Ordered accordingly."

12] Considering the submissions canvassed by the learned

advocates on both the sides and the material placed on record

and the aforesaid decisions of the Hon'ble Supreme Court, the

appeal deserves to be allowed in part and the impugned

judgment and order of conviction deserves to be modified to the

extent.

13] In this case, more than 12 years have elapsed and the

parties have settled in their life. Therefore, maintaining the

judgment, the interest of justice will be sub-served if the

punishment of ten years is substituted by the period already

undergone by the appellants. This approach is adopted and is

endorsed by these peculiar facts of the case and also

considering long lapse of time.

R/CR.A/1339/2013 JUDGMENT DATED: 15/06/2023

14] In view of above, the ends of justice would meet, if the

impugned judgment is suitably modified. Accordingly, this

Criminal Appeal is partly allowed. The impugned judgment and

order of conviction dated 29.08.2013 passed by 5th Additional

Sessions Judge, Nadiad in Sessions Case No. 131 of 2011. is

modified to the following extent.

15] The rigorous imprisonment imposed upon the appellant

no. 1 for offence under Section 306 read with Section 498(A)

and 114 of the IPC for a period of 10 years and the accused No.

2 Shakuntalaben @ Rinku wife of Jaydeepsinh Pravinsinh

Chauhan, accused No. 4 Jaydeepsinh Pravinsinh Chauhan and

accused No. 5 Fatesinh Lallubhai Parmar are convicted for the

offences punishable under Sections 498(A) and 114 of the

Indian Penal Code for a period of three years. It is relevant to

note herein that the accused No.1 was not granted bail during

pendency of the trial but the accused no. 2, 4 and 5 were on

bail at the time of pronouncement of judgment, and therefore,

the Coordinate Bench of this Court has ordered to continue

them on bail. So far as appellant no. 1 is concerned, he was

granted bail by this Court at the time of admission of appeal, for

R/CR.A/1339/2013 JUDGMENT DATED: 15/06/2023

the first time, and he has actually undergone for the period of

sentence of 2 years 2 months and 27 days. Therefore, all four

accused persons are at present on bail. They need not to

surrender before the jail authority. The bail and bail bond

stands canceled. Surety, if any, shall stands discharged. Records

and proceedings be sent back to the concerned trial Court

forthwith.

(HEMANT M. PRACHCHHAK,J) VISHAL MISHRA