Criminal Appeal Nos. 1071 of 1996 and 1073 of 2010. Case: State of Gujarat Vs Mamad Jusub. High Court of Gujarat (India)
| Case Number | Criminal Appeal Nos. 1071 of 1996 and 1073 of 2010 |
| Counsel | For Appellant: Chetna Shah, Addl. Public Prosecutor and For Respondents: HCLS Committee and Pratik B. Barot, Advocate |
| Judges | R. R. Tripathi and Sonia Gokani, JJ. |
| Issue | Code of Criminal Procedure, 1973 (CrPC) - Sections 377, 378(1); Indian Penal Code 1860, (IPC) - Sections 114, 307, 498(A), 504 |
| Judgement Date | April 24, 2015 |
| Court | High Court of Gujarat (India) |
Judgment:
Sonia Gokani, J.
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Criminal Appeal No. 1071 of 1996 has been preferred by the appellant-State under section 378(1) and (3) of the Code of Criminal Procedure, 1973 (hereinafter referred to as 'the Code'), against the judgment and order of acquittal dated September 30, 1996, passed by the learned Additional Sessions Judge, Gondal, District Rajkot in Sessions Case No. 5 of 1995, insofar as the learned Judge by the said judgment acquitted the respondent-accused from the charge of offence punishable under section 498(A) of the Indian Penal Code, 1860.
Criminal Appeal No. 1073 of 1996 has also been preferred by the appellant-State under section 377 of the Code for enhancement of the sentence rendered on September 30, 1996 by the learned Additional Sessions Judge, Gondal, District Rajkot in Sessions Case No. 5 of 1995.
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The brief facts leading to filing of the present appeals are as under:
"2.1 The respondents-original accused Nos. 1 and 2 were charged and tried for the offences punishable under sections 307, 498(A), 504 read with 114 of the Indian Penal Code. It is the case of the prosecution that on account of matrimonial dispute that the respondent No. 1 had with his wife, the complainant-Zarina, when she was pregnant with twins, a heated exchange of words resulted into the respondent No. 1 inflicting knife blows to his wife; and the original accused No. 2 used to instigate the respondent No. 1 and also used to abuse the complainant.
2.2 Due investigation led to filing of the chargesheet and committal of the case to the Court of Sessions, where the Court charged both the accused of the aforementioned charges on December 21, 1995.
2.3 When the accused pleaded not guilty to the charge, the prosecution chose to examine in all 19 witnesses and also recorded further statements of both the accused and on the strength of the submissions made by the rival sides, the judgment and order came to be rendered on September 30, 1996, resulting into acquittal of the accused No. 2 and conviction of the respondent No. 1-original accused No. 1 for the offence punishable under section 307 of the Indian Penal Code, for which he is sentenced to undergo rigorous imprisonment for a period of two years and a fine of Rs. 500/-, and in default of payment of fine, to undergo rigorous imprisonment for further period of one month. It emerges from the record that the respondent No. 1 has already undergone the sentence for a period of 1 year-11 months-12 days.
2.4 Aggrieved by such judgment and order of acquittal acquitting the accused for the offence punishable under section 498(A) of the Indian Penal Code and of punishing the respondent No. 1 for the offence punishable under section 307 only for two years, these appeals have been preferred."
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We have heard extensively Ms. Chetna Shah, learned Additional Public Prosecutor and Shri Pratik Barot, learned counsel appearing for the respondents, who has been appointed by the High Court Legal Services Committee to appear on behalf of the respondents-accused.
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Ms. Chetna Shah, learned Additional Public Prosecutor, has fervently urged before us that not only the complainant, but her close relatives like father, sister have supported the case of the prosecution in toto. It not only gets proved that the respondent-accused had continued to met out cruelty upon his wife by quarrelling with her and denying her the amount of subsistence, but such dispute had also led the wife to leave the matrimonial home. She further urged that with the indulgence of the family, she started residing together and she was conceiving twins. On the fateful day, her family members had gathered to work out the amicable solution qua their matrimonial ties. At that stage, the husband after being enraged by the demand of Rs. 25/- per day by the complainant-wife for subsistence, inflicted blows of knife on the vital part of the body of the complainant-wife and he in toto inflicted five blows on her. She further urged that surprisingly also, both, the husband and wife, were residing separately. Not only under the instigations of original accused No. 2, he used to give insufficient food to the wife, but he also used to abuse the victim, beat her up, and had also driven the complainant away along with her daughter and twins in her womb and thus, she had suffered a lot. Section 498(A) of the Indian Penal Code requires indulgence and further, the punishment of two years under section 307 of the Indian Penal Code is hopelessly less. She, therefore, urged to allow both the appeals preferred by the State and pass the order accordingly.
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A contrario sensu, Mr. Pratik Barot, learned counsel appearing on behalf of respondent-accused, urged this Court that no appeal is preferred against the judgment and order of conviction, but once the Court has admitted the appeals of the State and looked into the evidence that had been adduced before the trial Court, it will be open for the accused to challenge the aspect of the conviction. He urged that five years before the incident, the marriage of the complainant with the respondent No. 1 had taken place. Within one year, the daughter Afsana was born out of the said wedlock. There was though dispute between the parties, they started residing together. He urged that it was in the fit of anger, such an act has been committed by the respondent No. 1 and there was no intention to kill the wife. He further urged that the Court needs to consider as to the nature of injuries inflicted, the weapon held by the accused, etc. When three injuries out of five were simple in nature and when practically the entire sentence has been undergone, the Court may not interfere with such sentence after a span of about 18 years. He has also relied on the decision in the case of in re Balan and another, reported in 1974 Cr.L.J. 857 and another decision in the case of Pritam Chauhan v. State (Govt. of NCT Delhi, reported in AIR 2014 SC 2553.
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Having thus heard both the...
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