Gujarat High Court

The State Of Gujarat vs Mariyamben Salemamad Haji Kasam ... on 4 August, 2025

Author: Gita Gopi

Bench: Gita Gopi

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                           R/CR.A/209/2007                                            JUDGMENT DATED: 04/08/2025

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                                   IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                                             R/CRIMINAL APPEAL NO. 209 of 2007

                      FOR APPROVAL AND SIGNATURE:

                      HONOURABLE MS. JUSTICE GITA GOPI                         Sd/-

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                                  Approved for Reporting                         Yes                No
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                                        THE STATE OF GUJARAT
                                                Versus
                        MARIYAMBEN SALEMAMAD HAJI KASAM SANGHAR VAGHER & ANR.
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                      Appearance:
                      MR ROHANKUMAR RAVAL, ADDITIONAL PUBLIC PROSECUTOR for the
                      Appellant(s) No. 1
                      MR AM PAREKH(562) for the Opponent(s)/Respondent(s) No. 1,2
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                        CORAM:HONOURABLE MS. JUSTICE GITA GOPI

                                                          Date : 04/08/2025

                                                         ORAL JUDGMENT

1. The appellant-State has filed this Appeal under Section

377 of the Code of Criminal Procedure Code, 1973

(hereinafter referred to in short as 'Cr.PC') making a

prayer for enhancement of the sentence passed in the

judgment and order dated 15.11.2006 by the learned

Additional Sessions Judge, Fast Track Court No.1,

Khambhalia in Sessions Case No.63 of 2006.

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1.1 Both the accused were convicted under Sections 498A,

306 read with Sections 114 of the Indian Penal Code

(IPC). Under Sections 498A and 114 of the IPC, both

the accused were sentenced to undergo rigorous

imprisonment of two years and a fine of Rs.1,000/-

and in default of payment of fine, further simple

imprisonment of six months. Under Section 306 read

with Section 114 of the IPC, the accused were

sentenced to undergo rigorous imprisonment of three

years and a fine of Rs.1,000/- and in default of

payment of fine, further simple imprisonment of six

months. The sentences were ordered to run

concurrently.

2. At the very outset, learned advocate Mr. A.M. Parekh

for the respondents submitted that the prayer made by

the State had already been decided on 18.01.2011 in

Criminal Appeal No.2283 of 2006. It is further

submitted that unfortunately, the present Appeal was

not heard alongwith the Criminal Appeal filed by the

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accused, where the argument was only confined to the

sentence awarded to the accused. It is also submitted

by learned advocate Mr. A.M. Parekh that as per the

judgment dated 18.01.2011 in Criminal Appeal

No.2283 of 2006, the accused have undergone the

sentence and now, nothing could be said on the same.

3. While countering the above arguments, learned

Additional Public Prosecutor Mr. Rohankumar Raval

submitted that this fact of Criminal Appeal No.209 of

2007 filed by the State was required to be brought to

the notice of the Bench when Criminal Appeal No.2283

of 2006 was heard. Learned APP submitted that the

present matter is with regard to a gruesome offence

which occurred within a period of six months of

marriage. The husband within a period of one month

of marriage had left the wife to earn income in a

foreign country, leaving the wife at the mercy of other

family members. About 12 witnesses were examined

and about 24 documentary evidences were produced to

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substantiate the charge and it was proved during the

trial the offence against the accused.

4. Learned APP has further submitted that considering

the gravity of the offence, even though the sentence

has been undergone by the accused, the sentence is

required to be enhanced to set a deterrent effect for

others as such an example would be a precedent for

others and that would be a deterrence for others for

committing such offences against the women who are

suffering in their matrimonial life, within the four walls

of the house.

5. Sub-section 3 of Section 377 of Cr.PC states that when

an appeal has been filed against the sentence on the

ground of its inadequacy, [the Court of Session or, as

the case may be the High Court] [Substituted by the

Code of Criminal Procedure (Amendment) Act, 2005

(25 of 2005), Section 31 (b), for "the High Court"

(w.e.f.23-6-2006).] shall not enhance the sentence

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except after giving to the accused a reasonable

opportunity of showing cause against such

enhancement and while showing cause, the accused

may plead for his acquittal or for the reduction of the

sentence.

6. Here, the Criminal Appeal No.2283 of 2006 was already

heard on sentence. Learned APP submitted that since

the Appeal was only confined to the sentence, the

learned APP in Criminal Appeal No.2283 of 2006 was

heard on the sentence. It appears that at the relevant

time, the learned APP could not bring to the notice of

Bench, the pendency of the present Criminal Appeal.

7. On hearing both the sides, on 18.01.2011, the Bench

(Coram : Hon'ble Mr. Justice Z.K. Saiyed) in Criminal

Appeal No.2283 of 2006 has observed in Paragraph 15

as under :-

15. Hence, in view of the foregoing reasons, present appeal is disposed of as having become infructuous qua the appellant No.1 and the present appeal is partly allowed qua the appellant No.2. The judgment and order of conviction dated 15th November 2006 passed by the learned

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Additional Sessions Judge, Fast Track Court No.1, Khambhaliya, in Sessions Case No.63 of 2006 is hereby confirmed. However, the judgment and order of sentence dated 15th November 2006 passed by the learned Additional Sessions Judge, Fast Track Court No.1, Khambhaliya, in Sessions Case No.63 of 2006 is hereby reduced and modified to the extent that the appellant No.2 shall have to undergo rigorous imprisonment for a period of one year, instead of two years, for the offence punishable under Section 498-A read with Section 114 of the Indian Penal Code; and to undergo rigorous imprisonment for a period of one and-half-year, instead of three years, for the offence punishable under Section 306 read with Section 114 of the Indian Penal Code. The rest of the judgment and order dated 15th November 2006 shall remain unaltered.

The appellant No.2-accused is on bail. The said bail bond shall stand cancelled. The appellant No.2-accused is, therefore, directed to surrender herself to serve the sentence as aforesaid before the Jail Authority within a period of four weeks from today, failing which the Trial Court concerned is directed to issue a Non-bailable warrant against the appellant No.2-accused to effect her arrest. Record and Proceedings, if any, be sent back to the Trial Court concerned, forthwith.

8. In the case of the State of Rajasthan v. Mohan Lal

& Another in Criminal Appeal No.959 of 2018, while

deciding the leniency, the Hon'ble Supreme Court had

observed that the High Court was too lenient in

imposing the sentence of six days only which was the

period already undergone by the accused in

confinement. Thereafter, the Hon'ble Supreme Court

imposed a sentence of six months rigorous

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imprisonment and fine of Rs.25,000/- for the offence

under Section 325 of IPC and in case of default of

payment of fine, the accused was ordered to undergo

further rigorous imprisonment for 3 months. The

Hon'ble Supreme Court has referred to the case of

Soman vs. State of Kerala, reported in (2013) 11

SCC 382 and Alister Anthony Pareira v. State of

Maharashtra reported in (2012) 2 SCC 648 and has

made observations in Paragraphs 10, 11, 12, 13 and

14 as under :-

"10. Currently, India does not have structured sentencing guidelines that have been issued either by the legislature or the judiciary. However, the Courts have framed certain guidelines in the matter of imposition of sentence. A Judge has wide discretion in awarding the sentence within the statutory limits. Since in many offences only the maximum punishment is prescribed and for some offences the minimum punishment is prescribed, each Judge exercises his discretion accordingly. There cannot, therefore, be any uniformity. However, this Court has repeatedly held that the Courts will have to take into account certain principles while exercising their discretion in sentencing, such as proportionality, deterrence and rehabilitation. In a proportionality analysis, it is necessary to assess the seriousness of an offence in order to determine the commensurate punishment for the offender. The seriousness of an offence depends, apart from other things, also upon its harmfulness.

11. This Court in the case of Soman Vs. State of Kerala [(2013) 11 SCC 382] observed thus :

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"27.1. Courts ought to base sentencing decisions on various different rationales - most prominent amongst which would be proportionality and deterrence. 27.2. The question of consequences of criminal action can be relevant from both a proportionality and deterrence standpoint 27.3. Insofar as proportionality is concerned, the sentence must be commensurate with the seriousness or gravity of the offence.

27.4. One of the factors relevant for judging seriousness of the offence is the consequences resulting from it. 27.5. Unintended consequences/harm may still be properly attributed to the offender if they were reasonably foreseeable. In case of illicit and underground manufacture of liquor, the chances of toxicity are so high that not only its manufacturer but the distributor and the retail vendor would know its likely risks to the consumer. Hence, even though any harm to the consumer might not be directly intended, some aggravated culpability must attach if the consumer suffers some grievous hurt or dies as result of consuming the spurious liquor."

12. The same is the verdict of this Court in Alister Anthony Pareira Vs. State of Maharashtra [(2012) 2 SCC 648] wherein it is observed thus:

"84. Sentencing is an important task in the matters of crime. One of the prime objectives of the criminal law is imposition of appropriate, adequate, just and proportionate sentence commensurate with the nature and gravity of crime and the manner in which the crime is done. There is no straitjacket formula for sentencing an accused on proof of crime. The courts have evolved certain principles: the twin objective of the sentencing policy is deterrence and correction. What sentence would meet the ends of justice depends on the facts and circumstances of each case and the court must keep in mind the gravity of the crime, motive for the crime, nature of the offence and all other attendant circumstances."

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13. From the aforementioned observations, it is clear that the principle governing the imposition of punishment will depend upon the facts and circumstances of each case. However, the sentence should be appropriate, adequate, just, proportionate and commensurate with the nature and gravity of the crime and the manner in which the crime is committed. The gravity of the crime, motive for the crime, nature of the crime and all other attending circumstances have to be borne in mind while imposing the sentence. The Court cannot afford to be casual while imposing the sentence, inasmuch as both the crime and the criminal are equally important in the sentencing process. The Courts must see that the public does not lose confidence in the judicial system. Imposing inadequate sentences will do more harm to the justice system and may lead to a state where the victim loses confidence in the judicial system and resorts to private vengeance.

14. In the matter at hand, it is proved that the victim has sustained a grievous injury on a vital portion of the body, i.e. the head, which was fractured. The doctor has opined that the injury was life threatening. Hence, in our considered opinion, the High Court was too lenient in imposing the sentence of six days only which was the period already undergone by the accused in confinement."

9. In Bed Raj v. State of Uttar Pradesh reported in 1955

(2) SCR 583, the Hon'ble Supreme Court has

concluded that the question of 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

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detriment of the accused person except for very strong

reasons, which must be disclosed on the fact of

judgment. It was further held that in a matter of