rakeshkumar manubhai parekh 306 2014

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

DISTRICT: GANDHINAGAR.

CRIMINAL APPEAL NO. OF 2014(Under Sec.374 of the Code of Criminal Procedure,

1973)

Rakeshkumar Manubhai Parekh,Male, Aged: Residing at: Pethapur,District : Gandhinagar.At present undergoing sentence asConvict prisoner. ... Appellant

Orig.Accused-1 of Sessions

Case No.120/2011.

Versus

State of Gujarat(Notice to be served through the Ld.Public Prosecutor, High Court ofGujarat, Sola-Ahmedabad. ... Respondent

Criminal Appeal against the Judgment and order passed by 2nd Additional Sessions Judge, Gandhinagar dated 04/07/2013 in Sessions Case No.120/2011 convicting the accused appellant for the offence punishable U/s. 498-A IPC and sentencing the appellant to undergo RI for a term of 3 years with fine of Rs.2000/- i.d SI for two months and further convicting under Section 306 of IPC and sentencing the appellant to undergo RI for 5 years with fine of

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Rs.3000/- i.d. S.I. for three months.

TO,THE HON’BLE THE CHIEF JUSTICE AND HIS COMPANION JUSTICES OFTHE HIGH COURT OF GUJARAT ATSOLA-AHMEDABAD.

THE HUMBLE APPEAL OF THEAPPELLANT ABOVE NAMED :

MOST RESPECTFULLY SHEWETH THAT :

1. The accused-appellant herein and 2 other co-

accused were tried in the Court of 2nd Additional

Sessions Judge, Gandhinagar on the charges of

having committed offences punishable U/s.498-A

and 306 IPC. Vide Judgment and order dated

04/07/2013 the Trial Court convicted the

accused-appellant herein for the offence

punishable U/s. 498-A IPC and sentencing the

appellant to undergo RI for a term of 3 years with

fine of Rs.2000/- i.d S.I. for two months and

further convicting under Section 306 of IPC and

sentencing the appellant to undergo RI for 5

years with fine of Rs.3000/- i.d. S.I. for three

months

2

2. Case of the prosecution in brief can be

summarized as under :

2.1) Accused-appellant was married to deceased

Neetaben. Before four years, out of the said

wedlock, they had a daughter aged 1 ½ years

named Devana. The deceased was staying in the

joint family and the accused persons were giving

mental and physical harassment to the

deceased. It was the further the case of the

complainant that, whenever the deceased used

to visit the house of the complainant, she used to

state that her in laws were instigating the

appellant and by doing that the appellant used to

beat her. One and half months before the

incident, the deceased and the appellant started

staying separately at Indroda village in a rented

house. On 29/04/2011, because of the instigation

from her in laws, the appellant physically harass

the deceased and asked money from her, which

was paid by the complainant and memorandum

of understating was also entered into on the

same day. But then also, the harassment

continued and on 25/06/2011, the deceased

committed suicide by hanging herself at village

3

Sargasan. Based on the same, the FIR came to

be lodged at Gandhinagar Sector-7 Police Station

which was registered as C. R. No.I-220/2011 for

offences punishable U/s.498A, 306, 114 IPC.

3. Charge-sheet was filed against the accused-

appellant and other 2 co-accused for the

offences enumerated above and as Sec. 306 IPC

is exclusively triable by Sessions Court, the

Judicial Magistrate, Gandhinagar committed the

case to the Court of Sessions under the

provisions of Sec.209 Cr.P.C. On committal to

the Sessions Court at Gandhinagar, the case

came to be registered as Sessions Case

No.120/2011.

4. Vide Exh.9 –Charge came to be framed against

the accused appellant by Additional Sessions

Judge, Gandhinagar, dated 18/04/2012.

5. During the course of trial, prosecution examined

the following witnesses.

Sr.No. Name of the witness Exh.1 Dr.Bipin Motilal Patel, Medical Officer,

(who perform PM of the deceased)13

4

2 Natwarbhai Bababhai Nayi- complainant.

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3 Jivanbhai Chhanabhai Parmar (Witness)

26

4 Devendrasinh Sobaransinh Bhadoriya, Witness

27

5 Devchandbhai Godadbhai Panchal, Panch Witness

28

6 Baldevbhai Rugnathbhai Rabari, Panch Witness No.2

33

7 Natwarsinh Punjaji Rana (Panch Witness No.2)

34

8 Somabhai Bababhai Nayi, brother of the complainant.

37

9 Vishnubhai Bababhai Nayi, brother of the complainant.

38

10 Priyaben Devendrabhai Nayi, daughter in law of the complainant.

39

11 Bhagwatsinh Kalusinh, PSO 4212 Ranjitsinh Natwarsinh Vaghela, IO 4713 Hirabhai Lalabhai Solanki, PSI 5214 Dineshbhai Devjibhai Chaudhry IO 55

6. On overall appreciation and evaluation of

evidence on record the Trial Court came to the

conclusion that the prosecution has not been

able to prove the case in its entirety so far as the

other co-accused are concerned and accordingly

acquitted other co-accused Nos.2 & 3. However,

the Trial Court came to the conclusion that from

the evidence on record prosecution has been

able to prove that the accused appellant

convicting the accused appellant for the offence



fine of Rs.2000/- i.d SI for two months and further

5

convicting under Section 306 of IPC and



months

7. Except this Appeal, the appellant-accused has

not filed any other appeal or application either in

this Hon’ble Court or in any other Court or in the

Supreme Court of India against the impugned

order.

8. Being aggrieved and dissatisfied with the

judgment and order of conviction passed by the

2nd Additional Sessions Judge, Gandhinagar, the

appellant herein begs to prefer this Appeal on

the following amongst other grounds :

: G R O U N D S :

(1) The Judgment and order of conviction is

erroneous in law, against the weight of

evidence and contrary to the well settled

principles of criminal jurisprudence.

6

(2) The Ld. Judge has failed to appreciate that

there was a delay in filing of the FIR by three

days and the complainant has not given any

explanation suggesting the same. Further, the

basis of convicting the accused appellant is

that he was habitual of alcohol, but the

prosecution has failed to produce any

independent witness confirming the same or

showing by any documentary evidence that

any criminal complaint or any complaint has

been ever filed suggesting the same.

(3) That, the prosecution has failed to establish

any particular incident suggesting the mental

or physical harassment towards deceased

leading her to take such a drastic step. It is

pertinent to note that, none of the witness has

said anything that she was subject to any

cruelty prior to the deceased committing

suicide. The Ld. Judge has relied on

compromise agreement to suggest that the

deceased was subject to cruelty, but on the

contrary, the same will reflect that the

accused appellant wanted to have a good

7

matrimonial life with the deceased and

therefore he entered into compromise on the

term of deceased and brought her back to

matrimonial home.

(4) That, the said compromise agreement is of

dated 29/04/2011 and the deceased

committed suicide on 25/06/2011 and the

prosecution has not produced any evidence

suggesting that any cruelty or any instigation

was ever committed from the side of the

appellant to instigate deceased to commit

suicide, and, therefore, conviction under

Section 306 cannot be sustained.

(5) That, the deceased and the appellant was

staying separately in the rented premise, but

none of the independent witness has been

examined and only the relatives or the

interested witnesses have been examined by

the prosecution, but even the interested

witnesses have failed to establish that

particular incident which lead to taking such a

drastic step of committing suicide.

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(6) That, Ld. Judge has relied on the compromise

agreement, dated 29/04/2011 in convicting

the accused appellant, but the same does not

hold any legality and validity in the eyes of law

and therefore conviction based on compromise

agreement is bad in law and deserves to be

quashed and set aside.

(7) The law in this regard has also been very well

explained by the Division Bench of this Hon’ble

High Court in a reported decision in the matter

of State of Gujarat Vs. Bharatbhai Lad

reported in 2006(1) GLR -514. The Hon’ble

Division Bench has taken the view that it is a

settled legal provision of law that for bringing

home the charge U/s.306 IPC there must be

some evidence adduced on record showing

that soon before the incident, there was some

harassment and torture to the deceased at the

hands of the accused. Sec. 107 IPC is with

regard to the abetment and as per the

provision of this Section, there must be some

evidence that soon before the incident there

must be some incident due to which she was

prompted, instigated or abetted to commit

9

suicide. Before a person can be held guilty for

abetting commission of suicide, the

prosecution must establish, by cogent,

convincing and overwhelming evidence, that

the accused intended the consequences of the

act namely, suicide and abetting the suicide

within the meaning of Sec.107 IPC. Mere

harassment or cruelty which drags the woman

to commit suicide is not sufficient to constitute

the offence U/s.306 IPC.

(8) The Judgment and order of conviction is

otherwise also erroneous in law and deserves

to be quashed and set aside.

9. The appellant-accused submits that, the

appellant has already paid fine.

10. The appellant -accused, therefore, most

humbly prays that this Hon’ble Court be pleased

to –

(A) admit the present Appeal;

(B) quash and set aside the judgment and order of

conviction passed by the 2nd Additional Sessions

10

Judge, Gandhinagar dt. 04/07/2013 in Sessions

Case No.120/2011;

(C) acquit and exonerate the accused appellant from

all the charges;

(D) pass such orders as thought fit.

AND FOR THIS ACT OF KINDNESS AND JUSTICE THE

APPELLANT SHALL, AS IN DUTY BOUND, EVER PRAY.

AHMEDABAD. (Hardik H. Dave)Dt. /02/2014 Advocate for the Appellant

11




1973)

Rakeshkumar Manubhai Parekh …Appellant

V/s.

State of Gujarat. ... Respondent

: I N D E X :

Annexure

Particulars Page No.

- Memo of Appeal 1 to 12

“A” order passed by 2nd Additional

Sessions Judge, Gandhinagar

dated 04/07/2013 in Sessions

Case No.120/2011


12



1973)

Rakeshkumar Manubhai Parekh …Appellant

V/s.

State of Gujarat. ... Respondent

: LIST OF EVENTS :

- The accused-appellant herein and 2 other

co-accused were tried in the Court of 2nd

Additional Sessions Judge, Gandhinagar on

the charges of having committed offences

punishable U/s.498-A and 306 IPC. Vide

Judgment and order dated 04/07/2013 the

Trial Court convicted the accused-appellant

herein for the offence punishable U/s. 498-A

IPC and sentencing the appellant to undergo

RI for a term of 3 years with fine of

Rs.2000/- i.d S.I. for two months and further




months

- Accused-appellant was married to deceased

Neetaben. Before four years, out of the said

wedlock, they had a daughter aged 1 ½

years named Devana. The deceased was

staying in the joint family and the accused

13

persons were giving mental and physical

harassment to the deceased.

- Whenever the deceased used to visit the

house of the complainant, she used to state

that her in laws were instigating the

appellant and by doing that the appellant

used to beat her.

- One and half months before the incident,

the deceased and the appellant started

staying separately at Indroda village in a

rented house.

- On 29/04/2011, because of the instigation

from her in laws, the appellant physically

harass the deceased and asked money from

her, which was paid by the complainant and

memorandum of understating was also

entered into on the same day.

- But then also, the harassment continued

and on 25/06/2011, the deceased

committed suicide by hanging herself at

village Sargasan. Based on the same, the

FIR came to be lodged at Gandhinagar

Sector-7 Police Station which was registered

as C. R. No.I-220/2011 for offences

punishable U/s.498A, 306, 114 IPC.

- After filing of Charge-sheet the case was

committed to the Sessions Court at

Gandhinagar, the case came to be

registered as Sessions Case No.120/2011.

14

- Vide Exh.9 –Charge came to be framed

against the accused appellant by Additional

Sessions Judge, Gandhinagar, dated

18/04/2012.

- On overall appreciation and evaluation of

evidence on record the Trial Court came to the

conclusion that the prosecution has not been

able to prove the case in its entirety so far as the

other co-accused are concerned and accordingly

acquitted other co-accused Nos.2 & 3.

- However, the Trial Court came to the conclusion

that from the evidence on record prosecution has

been able to prove that the accused appellant

convicting the accused appellant for the offence



fine of Rs.2000/- i.d SI for two months and further




months.

- HENCE THIS APPEAL.



CRIMINAL MISC. APPLICATION NO. OF 2014

IN

CRIMINAL APPEAL NO. OF 2014

15

(Under Sec. 389 of the Code of Criminal Procedure,1973)

Rakeshkumar Manubhai Parekh,Male, Aged: Residing at: Pethapur,District : Gandhinagar.At present undergoing sentence asConvict prisoner. ... Applicant


Case No.120/2011.

Versus


Application U/s.389 of Cr.P.C.,1973 for suspension of substantive order of sentence imposed by the the judgment and order of conviction passed by 2nd Additional Sessions Judge, Gandhinagar dated 04/07/2013 in Sessions Case No.120/2011 convicting the accused appellant for the offence punishable U/s. 498-A and 306 of the IPC.


THE HUMBLE APPEAL OF THE

16

APPELLANT ABOVE NAMED :


1. The accused – applicant was convicted by the

Trial Court herein for the offence punishable U/s.

498-A IPC and sentencing the appellant to

undergo RI for a term of 3 years with fine of





months in Sessions Case No.120/2011.

2. The accused-applicant has preferred

substantive Appeal by raising manifold

grounds, before the Hon’ble Court against

the judgment and order of his conviction

and sentence dated 04/07/2013 passed by

the learned 2nd Addl. Sessions Judge,

Gandhinagar, in Sessions Case

No.120/2011.

3. Having regard to the evidence on record

the judgment and order of conviction is

erroneous and unsustainable in the eyes of

17

law. The sentence imposed is R.I. for 5

years. It is submitted that the appeal will

take considerable long period of time

before it is taken-up for hearing and final

disposal and therefore, pending the final

disposal of the main Appeal substantive

order of sentence imposed by the Trial

Court deserves to be suspended and the

accused-applicant be ordered to be

released on bail subject to terms and

conditions which this Hon’ble Court may

deem fit to impose.

4. The applicant accused says and submits

that fine is paid by the accused-applicant

and from the date of arrest of the applicant

the applicant is in judicial custody and at

present he is undergoing sentence as a

convict prisoner.

5. The applicant accused craves leave of this

Hon’ble Court to refer to and rely upon the

facts and grounds set-out in his criminal

appeal and the applicant accused is very

hopeful that he will succeed in criminal

18

appeal and the order of conviction and

sentence passed against him would be

quashed and set aside.

6. The accused-applicant is in jail since his

conviction on 16/07/2011 and since the

appeal might not be taken-up for

considerable period of time, the present

applicant may be released on bail and the

substantive order of sentence may be

suspended till the disposal of the captioned

appeal.

7. Except this application, no other

application has been preferred by the

applicant to this Hon’ble Court against the

impugned judgment and order of conviction

and sentence.

8. The applicant-accused craves leave of this

Hon’ble Court to add, amend, alter, delete

or rescind any of the grounds stated in this

application.

9. The applicant- accused therefore, most

humbly begs to pray that –

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A) pending admission and/or final disposal of

the main Criminal Appeal, the substantive

order of sentence imposed upon the accused-

applicant by the learned 2nd Addl. Sessions

Judge, Gandhinagar, dated 04/07/2013 in

Sessions Case No.120/2011 be suspended and

the accused-applicant be ordered to be

released on bail subject to terms and

conditions which this Hon’ble Court may

deem fit to impose;

B) as the accused-applicant in jail, the

affidavit be dispensed with;

C) pass such orders as thought fit.

AND FOR THIS ACT OF KINDNESS AND JUSTICE

THE APPLICANT SHALL, AS IN DUTY BOUND,

EVER PRAY.

AHMEDABAD. …..………………………… (Hardik H. Dave)

Date: /02/2014 Advocate for the Applicant

20



CRIMINAL MISC. APPLICATION NO. OF 2014( Under sec. 5 of the Limitation Act. )

IN

CRIMINAL APPEAL NO. OF 2014

Rakeshkumar Manubhai Parekh,Male, Aged: Residing at: Pethapur,District : Gandhinagar.At present undergoing sentence asConvict prisoner. ... Applicant


Case No.120/2011.

Versus

21


Application for condonation of delay in preferring Appeal against the judgment and order of conviction passed by 2nd

Additional Sessions Judge, Gandhinagar dated 04/07/2013 in Sessions Case No.120/2011 convicting the accused appellant for the offence punishable U/s. 498-A and 306 of the IPC.


THE HUMBLE APPEAL OF THEAPPELLANT ABOVE NAMED :


1. The accused – applicant was convicted by the

Trial Court herein for the offence punishable U/s.

498-A IPC and sentencing the appellant to

undergo RI for a term of 3 years with fine of


22




months in Sessions Case No.120/2011.

2. The accused-applicant has preferred

substantive Appeal by raising manifold

grounds, before the Hon’ble Court against

the judgment and order of his conviction

and sentence dated 04/07/2013 passed by

the learned 2nd Addl. Sessions Judge,

Gandhinagar, in Sessions Case

No.120/2011.

3. The applicant hails from a very lower strata of

society. There is no body in the family except

the applicant. On account of acute monetary

constraints and other problems the accused

applicant was unable to prefer Criminal Appeal

within the period of limitation and because of

monetary constraints the appeal could not be

preferred in time and there is a delay in

preferring the same.

23

4. The delay has occasioned on account of a

genuine problem and not due to any negligence

or carelessness of the accused-applicant.

5. The delay of ___ days in preferring the Appeal

deserves to be condoned in the interest of

justice.

6. The accused-applicant right from the date of

incident is in jail and there is nobody in the

family except mother.

7. Except this, no other application has been

preferred by the applicant in this Hon’ble Court

or any other Court on the subject matter.

8. The applicant therefore, most humbly prays that

this Hon’ble Court be pleased to –

A) condone delay of ____ days in preferring Criminal

Appeal against judgment and order passed by

the learned 2nd Addl. Sessions Judge Gandhinagar

in Sessions Case No.120/2011;

24

B) pass such orders as thought fit in the interest of

justice.

AND FOR THIS ACT OF KINDNESS AND JUSTICE THE

APPLICANT SHALL AS IN DUTY BOUND, EVER PRAY.

AHMEDABAD. …..………………………… (Hardik H. Dave)

Date: /02/2014 Advocate for the Applicant

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rakeshkumar manubhai parekh 306 2014

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