STATE OF GUJARAT Vs. SAYABABHAI MOHANBHAI KHANT

JUDGEMENT

(1.) BOTH these Criminal Appeals are preferred against judgment and order dated 14.07.2005 passed by the learned Additional Sessions Judge and Fast Track Judge, Modasa in Sessions Case No. 183 of 2003. By the said judgment, accused No. 2 was acquitted of the charges for offences under Sections 302, 354, 452, 504 and 114 of the Indian Penal Code, while accused No. 1 was convicted for offences punishable under Sections 304, Part -II, 354 and 452 of IPC. For offence punishable under Section 304, Part -II, accused No. 1 was ordered to undergo five years rigorous imprisonment and fine of Rs. 5,000/ - was imposed on him and in default of payment of fine, accused No. 1 was ordered to undergo simple imprisonment of one year. For offence punishable under Section 354, accused No. 1 was ordered to undergo rigorous imprisonment for one year and fine of Rs. 300/ - was imposed on him and in default of payment of fine, accused No. 1 was ordered to undergo simple imprisonment of two months. For offence punishable under Section 452, accused No. 1 was ordered to undergo rigorous imprisonment for one year and fine of Rs. 200/ - was imposed on him and in default of payment of fine, accused No. 1 was ordered to undergo simple imprisonment of one month. Criminal Appeal No. 1522 of 2006 is preferred for enhancement of sentence imposed on accused No. 1 by the impugned judgment for offences punishable under Sections 304, Part -II, 354 and 452 of IPC, while Criminal Appeal No. 33 of 2006 is preferred by the State against acquittal of the accused from the charges of offence punishable under Section 302 of IPC.

(2.) BOTH these appeals are arising out of the same judgment and since they are arising out of the same incident and the evidence is common in both these appeals, the same are taken up for hearing together. The case of the prosecution is that on 12.6.2003 at 8 p.m. the complainant was preparing food at her residence while her husband had gone to the flour mill for grinding of grains. At that time, the accused came to the house of the complainant and tried to outrage her modesty. Thereupon, she shouted for help and upon hearing the shouts, the deceased, who was the younger brother of husband of the complainant and his wife came to rescue her. At that time, the accused inflicted Katar blow on the back of the deceased and fled away from the scene of offence. Thereafter, the deceased was taken to Government dispensary. Thereafter, he was shifted to Ahmedabad Civil Hospital, where he succumbed to the injuries during treatment. In the meanwhile, the complainant filed a complaint with Modasa Town Police Station. As the complaint was filed during the treatment of the deceased and as the deceased succumbed to the injuries thereafter, Section 302 was added afterwards. Charge against accused No. 2 was that after infliction of injury to the deceased, original accused No. 2 came out and gave foul abuses to the complainant and others.

(3.) MR . L.R. Pujari, learned APP appearing for the State has submitted that the order of conviction recorded against accused No. 1 is just and proper. So far as Criminal Appeal No. 1522 of 2006 is concerned, which is preferred for enhancement of sentence imposed on accused No. 1, he has taken us through the evidence and contended that the trial Court has committed an error in imposing the sentence upon accused No. 1 inspite of voluminous evidence against him and contended that the trial Court ought not to have imposed such a lesser punishment. He also submitted that without appreciating the documentary as well as oral evidence available on the record of the case in its proper perspective, learned Judge has erred in imposing lesser punishment upon accused No. 1. He submitted that without appreciating those documentary as well as oral evidence available on the record of the case in its proper perspective the learned Judge has erred in imposing lesser punishment upon accused No. 1 for offences punishable under Sections 304, Part -II, 354 and 452 of IPC. He submitted that the reason put forth on behalf of the accused is not sufficient and reasonable for imposing lesser sentence on the accused. Therefore also, as the sentence imposed by the learned Judge is not sufficient and reasonable the same deserves to be enhanced by this Hon'ble Court he also submitted that from the available material and from facts and circumstances of the case, it is clear that the accused No. 1 deserve maximum sentence as provided under the aforesaid provisions of the Code. It is a fit case wherein the sentence imposed on accused No. 1 deserves to be enhanced by this Hon'ble Court. He further submitted that the learned Judge has failed to appreciate that there is no any mitigating circumstance to impose lesser sentence and it is very clear from the facts and circumstances of the case available on the record of the case that there is aggravating circumstances in which Hon'ble Judge ought to have imposed the maximum sentence as provided under the law. He also submitted that the learned trial Judge has committed an error in taking lenient view while imposing sentence on accused No. 1 and, therefore, the sentence imposed is required to be enhanced. Therefore, he submitted that Criminal Appeal No. 1522 of 2006 may be allowed and the sentence imposed by the trial Court may be enhanced.