Gujarat High Court
Savitaben Virjibhai Kalariya vs State Of Gujarat on 14 July, 2025
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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.
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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
5. Pragjibhai Keshavjibhai Kalariya, Witness 35
9. Dr.Bhavinkumar Bhikhlal Bhatti, Medical Officer 60
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.
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17 Sanction letter, Forwarding letter and Outward entry 85
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
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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,
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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
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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.
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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
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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."
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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
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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)
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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
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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....."
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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
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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.
(VIMAL K. VYAS, J.)
/MOINUDDIN
