STATE OF GUJARAT Vs. VIRABHAI

JUDGEMENT

(1.) BOTH these Criminal Appeals are preferred against judgment and order dated 13.10.2010 passed by Additional Sessions Judge, Court No. 13, Ahmedabad, in Sessions Case No. 114 of 2010. By the said judgment, accused Nos. 1, 3, 4 and 5 were acquitted of the charges of offence punishable under Sections 489(B) and (C) and Section 114 of the Indian Penal Code, while accused No. 2 was acquitted of the charges of offence punishable under Sections 489(B) of IPC. However, accused No. 2 is convicted for offence punishable under Section 498(C) of IPC and sentenced to undergo rigorous imprisonment for a period of four years and ordered to pay fine of Rs. 1,000/ - and, in default of payment of fine, simple imprisonment of two months was awarded. Criminal Appeal No. 375 of 2008 is preferred for enhancement of sentence imposed on accused No. 2 by the impugned judgment, while Criminal Appeal No. 376 of 2008 is preferred by the State against acquittal of the accused persons.

(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.

(3.) MS . C.M. Shah, learned APP appearing for the State has submitted that the order of conviction recorded against accused No. 2 is just and proper and she has supported the conviction recorded by impugned judgment. So far as Criminal Appeal No. 375 of 2011 is concerned, which is preferred for enhancement of sentence imposed on accused No. 2, she has taken us through the evidence and contended that the trial Court has committed an error in imposing the sentence upon accused No. 2 inspite of voluminous evidence against him and contended that the trial Court ought not to have imposed such a lesser punishment. She 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. 2. She submitted that the prosecution has examined 12 witnesses in support of its case and has also produced 16 documentary evidences on the record of the case. However, 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. 2. She 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. She also submitted that from the available material and from facts and circumstances of the case, it is clear that the accused No. 2 deserve maximum sentence as provided under the aforesaid provision of the Code. It is a fit case wherein the sentence imposed on accused No. 2 deserves to be enhanced by this Hon'ble Court. She 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. She also submitted that the learned trial Judge has committed an error in taking lenient view while imposing sentence on accused No. 2 and, therefore, the sentence imposed is required to be enhanced. Therefore, she submitted that Criminal Appeal No. 375 of 2011 may be allowed and the sentence imposed by the trial Court may be enhanced.