Gujarat High Court
Hansaben D/O Mangabhai Lakhabhai ... vs State Of ... on 6 May, 2015
Author: K.J.Thaker
Bench: K.J.Thaker
R/CR.A/905/2014 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL APPEAL (AGAINST CONVICTION) NO. 905 of 2014
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE K.J.THAKER
==========================================================
1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of
the judgment ?
4 Whether this case involves a substantial question of
law as to the interpretation of the Constitution of
India or any order made thereunder ?
==========================================================
HANSABEN D/O MANGABHAI LAKHABHAI BAMANIA....Appellant(s)
Versus
STATE OF GUJARAT....Opponent(s)/Respondent(s)
==========================================================
Appearance:
MR SHAKEEL A QURESHI, ADVOCATE for the Appellant(s) No. 1
MS MAITHILI MEHTA APP for the Opponent(s)/Respondent(s) No. 1
==========================================================
CORAM: HONOURABLE MR.JUSTICE K.J.THAKER
Date : 06/05/2015
ORAL JUDGMENT
1. The present appellant has preferred this Page 1 of 11 R/CR.A/905/2014 JUDGMENT appeal under sec. 374(2) of the Code of Criminal Procedure, against the judgment and order of conviction and sentence dated 14.7.2014 passed by the learned 2nd Addl. Sessions Judge , Veraval, in Sessions Case No. 15/2013,, whereby, the learned trial Judge has convicted the appellant under sec. 317 of IPC and sentenced to undergo R/I for four years and to pay a fine of Rs. 1000/-, in default, to undergo further S/I for four months, which is impugned in this appeal.
2. The brief facts of the prosecution case is as under:
2.1 That the complainant had lodged the complaint, inter alia, alleging that the complainant had seen in open Government land a newly born infant. Therefore, immediately the police had been informed. Thereafter, members of public had gathered and found the infant crying,k and the infant was taken to a children's hospital and later on shifted to Veraval Hospital. For the aforesaid complaint having been lodged, the investigation had been carried out and charge-
sheet had been filed against the present appellant in the Court of Addl. Chief Judicial Magistrate, Veraval. As the case was exclusively triable by the Court of Sessions, the learned Magistrate, committed the case to the Court of Page 2 of 11 R/CR.A/905/2014 JUDGMENT Sessions, which was numbered as Sessions Case No. 15/2013.
3. The accused was charged vide Ex. 5. The appellant - accused pleaded not guilty and claimed to be tried.
4. In order to bring home the charge levelled against the appellant- accused, the prosecution has examined the following witnesses:
1. Lalit Danabhai Chandpa Ex. 9
2. Rajesh Balubhai Bamaniya Ex.11
3. Ra,esh Sarmanbhai Vaja Ex. 12
4. Dr. Pratimaben N. Mehta Ex. 15
5. Dr. Jay Harilal Padaresh Ex. 19
6. Hemiben Bilabhai Bamaniya Ex. 21
7. Prabhaben Bachubhai Dodiya Ex. 27
8. Shobhaben S. Rao Ex. 30
9. Ravishankar Karunashankar Taraiya Ex. 35
10. Amirkhan Alikhan Ex. 37
11. Dhanabhai Khushalbhai Patel Ex. 40
12. Hakumatsinh Anopsinh Jadeja Ex. 42
5. The prosecution has also produced the following documentary evidence before the trial Court.
1. Panchnama of infant Ex. 10 Page 3 of 11 R/CR.A/905/2014 JUDGMENT
2. Complaint Ex. 13
3. Panchnama of scene of offence Ex. 14
4. Transfer form Ex. 16
5. Case paper Ex. 17
6. Medical register Ex. 18
7. Medical report of infant Ex. 20
8. Letter of sending the infant to Shishumangal Ex. 28
9. Copy of order of the Court Ex. 29
10. Forwarding letter Ex. 31
11. Receipt Ex. 32
12. FSL Report Ex. 33
13. Copy of FIR Ex. 36
14. Letter of PSO, Prabhas Patan Ex. 38
15. Letter of Head Constable to PSO Prabhas Patan to register the crime Ex. 39
16. Letter of PSO to PSI, Prabhas Patan Ex. 41
17. Arrest memo Ex. 43
6. Thereafter, after examining the witnesses, further statement of the appellant-accused under sec. 313 of CrPC was recorded in which the appellant-accused has denied the case of the prosecution.
7. After considering the oral as well as documentary evidence and after hearing the parties, learned 2nd Addl. Sessions Judge, Veraval vide impugned judgment and order dated Page 4 of 11 R/CR.A/905/2014 JUDGMENT 14.7.2014 held the appellant - accused guilty to the charge levelled against her under sec. 317 of IPC and convicted and sentenced the appellant accused, as stated above.
8. Being aggrieved by and dissatisfied with the impugned judgment and order of conviction and sentence passed by the learned 2nd Addl. Sessions Judge, Veraval, the present appellant has preferred this appeal.
9. Heard Mr. S.A. Qureshi learned advocate for the appellant and Ms. Maithili Mehta learned APP for the respondent-State.
10. Mr. Qureshi learned advocate appearing for the appellant-accused has vehemently submitted that the evidence on record goes to show that the offence under section 317 of IPC is not made out, and therefore, the impugned judgment and order of conviction and sentence may be quashed and set aside and the appeal be allowed. Mr. Qureshi learned advocate for the appellant has submitted that the trial Court has erred in believing the prosecution case and evidence on record. He has further submitted that the judgment and order of conviction is based on improper appreciation of the evidence of prosecution and based on improbabilities and therefore the same deserves Page 5 of 11 R/CR.A/905/2014 JUDGMENT to be quashed and set aside. Mr. Qureshi learned advocate further submitted that the appellant has now entered into marriage and she has a child aged about 9 months, and if she is punished and sentenced to jail, her family life would be ruined. He further submitted that the offence under sec.317 IPC is a compoundable offence and the appeal be allowed.
11. Per contra, learned APP Ms. Mehta has taken this Court through the entire evidence on record and submitted that the impugned judgment and order passed by the learned trial Judge is just and proper. Ms. Mehta learned APP further submitted that in view of the evidence on record, it cannot be said that the learned trial Judge has committed any error in convicting and sentencing the accused, and therefore, the present appeal does not deserve to be allowed.
12. I have gone through the oral as well as documentary evidence produced on the record. I have read the oral evidence of prosecution witness-complainant and also perused the charge framed against the appellant. Mr. Qureshi learned advocate further submitted that the appellant has now entered into marriage and she has a child aged about 9 months, and if she is punished and sentenced to jail, her family life would be Page 6 of 11 R/CR.A/905/2014 JUDGMENT ruined, and therefore, leniency may be shown. Looking to the young age of the appellant and child which was for whatever reason best known to the appellant, she had abandoned the child. On going through the evidence, as such, there is no evidence qua the appellant-accused. The Apex Court in the case of Sumer Singh v. Surajbhan Singh and others, reported in (2014) 7 SCC 323 has made following observations regarding sentencing in the cases involved in sexual offences:
"33. It is seemly to state here that though the question of sentence is a mater of discretion, yet, the said discretion cannot be used by a court of law in a fanciful and whimsical manner. Very strong reasons on consideration of the relevant factors have to form the fulcrum for lenient use of the said discretion. It is because the ringing of poignant and inimitable expression, in a way, the warming of Benjamin N. Cardozo in The Nature of the Judicial Process - Yalke University Press, 1921 Edn., page 114.
"The Judge even when he is free, is still not wholly free. He is not to innovate at pleasure. He is not a knight errant roaming at will in pursuit of his own ideal of beauty or of goodness. He is to draw his inspiration from consecrated principles. He is not to yield to spasmodic sentiment, to vague and unregulated benevolence. He is to exercise a discretion informed by tradition, methodized by analogy, disciplined by system, and subordinated to 'the primordial necessity of order in social life."Page 7 of 11
R/CR.A/905/2014 JUDGMENT
34. In this regard, we may usefully quote a passage from Ramji Dayawala and Sons (P.) Ltd. v. Invest Import, (1981)1 SCC 80:
"20....When it is said that a matter is within the discretion of the court it is to be exercised according to well established judicial principles, according to reason and fair play, and not according to whim and caprice. 'Discretion', said Lord Mansfield in R. v. Wilkes, (1770) 4 Burr 2527, 'when applied to a court of justice, means sound discretion guided by law. It must not be governed by rule, not by humour, it must not be arbitrary, vague, and fanciful, but legal and regular" (see Craies on Statute Law, 6th Edn., p. 273).
35. In Aero Traders Pvt. Ltd. v. Ravinder Kumar Suri, (2004) 8 SCC 307, the Court observed:
"6....According to Black's Law Dictionary 'Judicial discretion' means the exercise of judgment by a judge or court based on what is fair under the circumstances and guided by the rules and principles of law; a court's power to act or not act when a litigant is not entitled to demand the act as a matter of right. The word 'discretion' connotes necessarily an act of a judicial character, and, as used with reference to discretion exercised judicially, it implies the absence of a hard-and-fast rule, and it requires an actual exercise of judgment and a consideration of the Page 8 of 11 R/CR.A/905/2014 JUDGMENT facts and circumstances which are necessary to make a sound, fair and just determination, and a knowledge of the facts upon which the discretion may properly operate. (see 27 Corpus Juris Secundum, page 289). When it is said that something is to be done within the discretion of the authorities, that something is to be done according to the rules of reason and justice and not according to private opinion; according to law and not humour. It only gives certain latitude or liberty accorded by statute or rules, to a judge as distinguished from a ministerial or administrative official, in adjudicating on matters brought before him."
Thus, the judges are to constantly remind themselves that the use of discretion has to be guided by law, and what is fair under the obtaining circumstances.
36. Having discussed about the discretion, presently we shall advert to the duty of th court in the exercise of power while imposing sentence for an offence. It is the duty of the court to impose adequate sentence, for one of the purposes of imposition of requisite sentence is protection of the society and a legitimate response to the collective conscience. The paramount principle that should be the guiding laser beam is that the punishment should be proportionate. It is the answer of law to the social conscience. In a way, it is an obligation to the society which has reposed faith in the court of law to curtail the evil. While imposing the sentence it is the court's Page 9 of 11 R/CR.A/905/2014 JUDGMENT accountability to remind itself about its role and the reverence for rule of law. It must evince the rationalized judicial discretion and not an individual perception or a moral propensity. But, if in the ultimate eventuate the proper sentence is not awarded, the fundamental grammar of sentencing is guillotined. Law cannot tolerate it; society does not withstand it; and sanctity of conscience abhors it. The old saying "the law can hunt one's past" cannot be allowed to be buried in an indecent manner and the rainbow of mercy, for no fathomable reason, should be allowed to rule. True it is, it has its own room, but, in all circumstances, it cannot be allowed to occupy the whole accommodation. The victim, in this case, still cries for justice. We do not think that increase in fine amount or grant of compensation under the Code would be a justified answer in law. Money cannot be the oasis. It cannot assume the centre stage for all redemption. Interference in manifestly inadequate and unduly lenient sentence is the justifiable warrant, for the Court cannot close its eyes to the agony and anguish of the victim and, eventually, to the cry of the society. Therefore, striking the balance we are disposed to think that the cause of justice would be best subserved if the respondent is sentenced to undergo rigorous imprisonment for two years apart from the fine that has been imposed by the learned trial judge."
13. Hence, in view of the decision of the Apex Court in the case of Satish Kumar Jayanti Lal Page 10 of 11 R/CR.A/905/2014 JUDGMENT Dabgar v. State of Gujarat, and in the interest of justice, if fine of Rs. 5000/- is imposed upon the appellant instead of further incarceration, would meet with ends of justice. In that view of the matter, the impugned judgment and order of conviction and sentence is required to be modified.
14. In the result, this appeal is partly allowed. The conviction under section 317 IPC, imposed upon the appellant in Sessions Case No. 15/2013 by the learned 2nd Addl. Sessions Judge, Veraval, is confirmed. However, the sentence is modified and is reduced to the extent as already undergone. However, fine is increased to Rs. 5000/- instead of Rs. 1000/-and default sentence is maintained. The appellant-accused is on bail, she need not surrender. R & P to be sent back to the trial court.
(K.J.THAKER, J) mandora Page 11 of 11