Ilaben @ Lilaben Chandubhai vs State of Gujarat

Z.K. Saiyed, J.—The present appeal, filed u/s 374 of the Code of Criminal Procedure, 1973, is directed against the judgment and order of conviction and sentence dated 08th October, 2001 passed by the learned Additional Sessions Judge, Surat, in Sessions Case No. 91 of 1997, whereby the learned Additional Sessions Judge was pleased to convict the present Appellant for the offences punishable u/s 307 read with and 114 of the Indian Penal Code and sentenced her to undergo rigorous imprisonment for a period of seven years and acquitted the Appellant from the offence punishable u/s 498-A of the Indian Penal Code.

It is the case of the prosecution that the complainant was residing with her in-laws. Her marriage was solemnized with the original accused No. 1 prior to four years of lodging the complaint. Her husband was working as diamond cutter. As per the case of the complainant, her mother-in-law, wife of brother-in-law (Jethani) and brother-in-law were imposed mental and physical cruelty upon her. It is also the case of the complainant that she was also beaten many times by her in-laws and they were demanded money. It is also the case of the complainant that her brother-in-law had specifically told her to bring money as he wanted to open factory and demanded Rs. 50,000/-. They were sent the complainant to her parental house and told her told that she would not be allowed to reside in her matrimonial house if she fails to bring money. Therefore, the complainant was residing in her parental house since last one month prior to lodging her complaint. It is the case of the complainant that her brother told her that husband of the complainant again married, the complainant with her auntie (Mami) went to her matrimonial house, where she came to know that her husband was residing at some other place. Therefore, the complainant with her auntie went at the address where his husband was residing. It is the case of the complainant that when she went there, her husband asked as to why she came there and by saying this, her husband and her second wife, i.e. present Appellant, beat her and thrown her from the terrace and therefore, she received injuries on waist. Therefore, she was admitted in the hospital. Therefore, a complaint to the said effect was lodged in Varachha Police Station.

Thereafter, investigation was carried out, recorded statements of witnesses and as sufficient evidence is found against the accused persons, they came to be arrested. Thereafter, as there were sufficient evidence found, on 26th August, 1996 charge-sheet came to be filed against the accused persons in the Court of Chief Judicial Magistrate. Thereafter, as the offence was exclusively triable by the Court of Sessions, the same came to be transferred in the Court of Sessions, Surat.

Thereafter, charge at Exhibit 4 was read over to the accused persons. The accused persons pleaded not guilty to the charge levelled against them and claimed to be tried.

In order to bring home the charges levelled against the accused persons, the prosecution has examined in all 11 witnesses and also produced documentary evidence in support of its case.

Thereafter, after filing closing pursis by the prosecution, further statement of the accused persons u/s 313 of the Code of Criminal Procedure, 1973 came to be recorded wherein the accused persons denied the case of the prosecution. It is also stated by the accused persons that there was no relation between the accused No. 1. and accused No. 7-present Appellant. The accused persons have stated that they have never ill-treated the complainant and a false case is filed against them.

After hearing both the sides, the learned Additional Sessions Judge, Surat, by his judgment and order of conviction dated 08th October, 2001 passed in Sessions Case No. 91 of 1997, convicted the Appellant and the original accused No. 1 as stated above.

Being aggrieved by and dissatisfied with the said judgment and order of conviction dated 08the October, 2001 passed by the learned Additional Sessions Judge, Surat, the Appellant here-in-above has preferred the present appeal before this Court.

I have heard Mr. Utpal Panchal, learned Counsel for the Appellant and Mr. H.L. Jani, learned Additional Public Prosecutor appearing on behalf of the Respondent-State.

Mr. Panchal has taken me through the evidence of prosecution witnesses and the documentary evidence and submitted that from the evidence produced on record it is established that the prosecution has failed to prove its case beyond reasonable doubt. He has contended that in the present case, original accused No. 1-husband of the complainant was also convicted and he was the main accused and he is released from jail as he has served the sentence. He has contended that the original accused No. 1 and the present Appellant has no relation. The Appellant is old aged lady and she has not committed any offence as alleged. Mr. Panchal has contended that he is not arguing the matter on merits, but arguing the matter for the purpose of quantum. He has further contended that looking to the facts of the case as well as evidence produced on record, conviction imposed upon the Appellant is very harsh. He has also contended that looking to the circumstantial evidence and evidence produced on record, lenient view is required to be taken in the matter.

As against this, Mr. Jani, learned Additional Public Prosecutor for the Respondent-State has supported the judgment and order of conviction passed by the learned Additional Sessions Judge. He has contended that looking to the charge framed against the Appellant, order passed by the learned trial Judge is absolutely just and proper. He has also read the documentary evidence produced on record and contended that learned trial Judge has not committed any error in convicting the Appellant-accused. He, therefore, contended that the present appeal is required to be dismissed.

I have gone through papers produced before me and the judgment and order passed by the trial Court. I have also perused the oral as well as documentary evidence led before the trial Court and also considered the submissions made by learned Counsel for the parties.

It appears that the original accused No. 1-accused has already been released from jail on completion of sentence. The husband was the main accused. The present Appellant is the abettor in the said offence. The Appellant is aged lady and prima-facie her role is not established. Therefore, I am of the opinion that conviction imposed upon her is very harsh. I am of the opinion that if the sentence imposed upon the Appellant be reduced, same would meet with the ends of justice. Even looking to the submissions advanced by the learned Counsel for the Appellant and circumstances of the case, sentence imposed upon the Appellant is required to be reduced and modified on the ground of sympathy also.

Hence, in view of the foregoing reasons, present appeal is partly allowed. The judgment and order of conviction dated 08th October, 2001 passed by the learned Additional Sessions Judge, Surat, in Sessions Case No. 91 of 1997, is hereby confirmed. However, the judgment and order of sentence dated 08th October, 2001 passed by the learned Additional Sessions Judge, Surat, in Sessions Case No. 91 of 1997 is hereby reduced and modified to the extent that now the Appellant shall have to undergo rigorous imprisonment for a period of three years for the offence punishable u/s 307 read with Section 114 of the Indian Penal Code instead of rigorous imprisonment for a period of seven years for the said offence. Rest of the judgment and order dated 08th October, 2001 shall remain unaltered. The Appellant is on bail. Her bail bond shall stands cancelled. The Appellant is directed to surrender herself before the Jail Authority within a period of four weeks from the date of receipt of this writ to undergo remaining sentence, if any, failing which the trial Court concerned is directed to issue non-bailable warrant against the Appellant to effect her arrest. Record and Proceedings, if any, be sent back to the trial Court concerned, forthwith.