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2013 DIGILAW 674 (GUJ)

Rajeshbhai Bacherbhai Kamliya v. State of Gujarat

2013-11-22

K.J.THAKER, K.S.JHAVERI

body2013
Judgment K.S. Jhaveri, J.—The appellant, who was original accused in Sessions Case No. 69 of 2009, has challenged, by way of this appeal, the judgment and order of the learned Additional Sessions Judge, Fast Track Court, Veraval, Camp at Una, Dated : 16.03.2011, rendered in the aforesaid Sessions Case, convicting him under Section 302 of the IPC and sentencing to undergo imprisonment for life and to pay fine of Rs. 4,000/- and in default to undergo further simple imprisonment for six months. 2. The brief facts of the case of the prosecution, leading to the filing of the present appeal reads as under; 3. A complaint came to be lodged by the deceased, Daxaben, before PI, Una Police Station, Camp at Jungarh, while she was undergoing treatment in Burns Ward at Civil Hospital, Junagarh, wherein, she stated that she is residing at the address given in the complaint along with her in-laws and her husband, i.e. the present appellant, and their children. The deceased, then, went on to narrate the alleged offence stating that today, in the morning at about 07:00 a.m., her in-laws had gone to farm and while she was preparing food at about 08:00 a.m., the appellant came there and asked her to go to her parental home and when the deceased refused, the appellant got enraged. He, then, brought a tin containing kerosene and poured on the deceased and set her ablaze, and hence, the deceased started shouting. She was, then, doused by the neighbours and was shifted to the hospital by her in-laws, whereas, the appellant had fled the place of offence. On registration of the complaint, police carried out investigation into the alleged offence and on finding prima facie evidence, laid charge-sheet against the appellant before the Court of the Ld. JMFC, Una. However, since, the case was exclusively triable by a Court of Sessions, same was transferred to the Sessions Court, Una. 4. To bring home the charges leveled against the appellant, the prosecution examined the following witnesses; Prosecution Name of the Witness Exhibit No. Witness Number 1. JMFC, Una. However, since, the case was exclusively triable by a Court of Sessions, same was transferred to the Sessions Court, Una. 4. To bring home the charges leveled against the appellant, the prosecution examined the following witnesses; Prosecution Name of the Witness Exhibit No. Witness Number 1. Rameshbhai Shantibhai 8 2 Babubhai Arjanbhai 11 3 Babu Bhayabhai 18 4 Ravjibhai Vallabhbhai 19 5 Pravinbhai Shambhubhai 22 6 Harilal Govindram Vyas 23 7 Kasambhai Rasidbhai Kazi 26 8 Shamjibhai Govindbhai 27 9 Bhupendra Maganlal Shah 30 10 Babubhai Arjanbhai 31 11 Nimuben Babubhai 32 12 Bharatbhai Ravjibhai Jetha 33 13 Ghanshyambhai Jinabhai Jadav 34 14 Dr. Arjunbhai Gorabhai Rathod 35 15 Kirit Laxmidas Sangani 44 16 Dr. Tarik Yasin Baloch 47 17 Dr. Sanidp Ramnikgiri Goswami 54 18 Khamisa Sumarbhai 59 19 Prabhudas Keshavdas Hariyani 64 20 Dr. Jyoti Kalpesh Hathi 74 21 Vanrajsinh Satubha Sarvaiya 91 22 Dr. Tansukh Govindbhai Solanki 100 5. The prosecution also placed reliance on the following documentary evidences in support of its case; Sr. No. Particulars of the Documents Exhibit No. 1 Inquest Panchnama 9 2 Panchnama of Place of Offence 12 3 Arrest Panchnama 20 4 Panchnama of samples taken from the body of the victim 24 5 Panchnama of samples taken from the body of the accused 28 6 Medical Certificate of the deceased 36 7 Medical Case Papers of the deceased 37 8 Photo copy of the DD 43 9 Original DD 45 10 Report of investigation van 52 11 Medical certificate of the accused 55 12 PM Form 63 13 PM Note 75 14 Original complaint 92 15 Report of FSL 96 6. Then, the trial Court passed the judgment and order, as referred to herein above. Hence, the present appeal. 7. Heard, Mr. Barot, learned Counsel for the appellant and Ms. Shah, learned APP on behalf of the opponent-State and perused the material on record with their assistance. 8. Then, the trial Court passed the judgment and order, as referred to herein above. Hence, the present appeal. 7. Heard, Mr. Barot, learned Counsel for the appellant and Ms. Shah, learned APP on behalf of the opponent-State and perused the material on record with their assistance. 8. In the case on hand, the complaint (Exhibit-92) of the alleged offence was lodged by the deceased herself, while, she was undergoing treatment at the Civil Hospital, Junagarh, wherein, she categorically narrated the entire incident stating that her in-laws had gone to farm on that day and she was preparing food, at which point of time the appellant came there and asked her to go to her parental home, to which she replied that she had recently come back from her parental home, and hence, does not want to go back soon again and on hearing the same the appellant got enraged and brought a tin containing kerosene and poured on her and set her ablaze. 9. The complaint given by the deceased stands corroborated by her D.D., which was recorded by the Dy. Mamlatdar & Executive Magistrate, Junagarh, who was examined by the prosecution as P.W.-15 at Exhibit-44. In his examination-in-chief, P.W.-15 stated that on receiving the message from police for recording the DD of the deceased over telephone, he went to the Burns Ward of the Civil Hospital, Jungarh, and met Dr. A. G. Rathod and obtained his opinion with regard to the fitness of the injured to make a statement, and then, recorded her DD in question-answer form. In answer to question Nos.4 and 5 asked by P.W.-15 to the deceased, she replied that she was set ablaze by her husband. Then, in answer to question No.13 asked by this witness to the deceased, she replied that she was set ablaze by her husband due to household disputes. From a perusal of the DD (Exhibit-45) of the deceased recorded by P.W.-15, the manner in which the alleged offence took place, the cause of the alleged offence as well as the role played by the appellant are clearly borne out. 10. From a perusal of the DD (Exhibit-45) of the deceased recorded by P.W.-15, the manner in which the alleged offence took place, the cause of the alleged offence as well as the role played by the appellant are clearly borne out. 10. The case of the prosecution also gets support from the evidence of (1) P.W.-1, who was a witness to the Inquest Panchnama (Exhibit-9), (2) P.W.-14, who had provided the treatment to the deceased at Civil Hospital, Junagarh, and who was given the history by the deceased of setting ablaze by her husband, (3) P.W.-16, who had attended the deceased at CHC, Una, and provided her treatment first in point of time and who was also given the history by the deceased of setting ablaze by her husband, (4) P.W.-17, who had attended and provided the treatment to the appellant in regard to the burn injuries sustained by him, (5) P.W.-21-the IO, who had carried out the investigation into the alleged offence and (6) P.W.-22, who had made endorsement with regard to the fitness of the deceased to make a statement before police. 11. Insofar as the evidence of P.W.s-2, 3, 4, 5, 6, 7, 8, 9, 10, 11 and 12 are concerned, they did not support the case of the prosecution and were declared hostile. 12. As per the evidence of P.W.-20, who had performed PM on the body of the deceased, the cause of death of the deceased was cardiorespiratory arrest due to septicemia due to infection following burns. Thus, the evidence of this witness leaves no manner of doubt in our mind that the deceased died of a homicidal death. The presence of the appellant at the place of offence, at the time of its commission, stands proved beyound doubt by the evidence of the deceased, herself, which gets support from the evidence of P.W.-14 and P.W.-16. It is pertinent to note that neither at the time when P.W.-16 attended the appellant for the burns sustained by him nor at the the time of recording of his statement under Section 313 of the Cr.P.C., the appellant offered any explanation in regard to the burn injuries sustained by him. It is pertinent to note that neither at the time when P.W.-16 attended the appellant for the burns sustained by him nor at the the time of recording of his statement under Section 313 of the Cr.P.C., the appellant offered any explanation in regard to the burn injuries sustained by him. The learned trial Judge was, therefore, justified in not believing the defence of the appellant that he sustained injuries, when he made an attempt to douse the deceased and rightly held him guilty for the act of causing death of the deceased. 13. Having concurred with the view taken by the trial Court, holding the appellant guilty for the act of causing death of the deceased, what we, now, have to examine is, as to whether the trial Court was justified in convicting the appellant under Section 302 of the IPC or not? As stated above, since, the deceased had died due to septicemia, here, it would be relevant to refer to the decision of the Apex Court in the case of “B.N. Kavatakar vs. State of Karnataka”, 1994 SCC Supl. (1) 304, in that case, the appellants, therein, committed the criminal trespass on the land of the deceased and also inflicted severe injuries on him with deadly weapons and on account of that the deceased died after about a week due to septicemia. At the end of the trial, the trial Court acquitted all the accused, against which the State preferred an appeal, wherein, the High Court convicted the appellants for the offence under Section 304 read with Section 34 of the IPC. When the matter was further carried before the Apex Court, the Apex Court modified the order of the High Court, by recording conviction of the appellants under Section 326 read with Section 34 of the IPC, in view of the fact that the deceased had died due to septicemia. 14. Similar view is taken by the Apex Court in the case of “Maniben vs. State of Gujarat”, (2009) 8 SCC 796, wherein, the deceased, who happened to be daughter-in-law of the accused, i.e. the mother-in-law of the deceased, expired when the accused threw a burning wick on the deceased after a quarrel, on account of which the clothes of the deceased caught fire and ultimately, the deceased sustained about 60 per cent burn injuries. In that case, the trial Court hold the accused, mother-in-law, guilty under Section 304 (Part II) of the IPC and sentenced her to undergo imprisonment for five years. However, the High Court enhanced the said sentence to imprisonment for life in an appeal preferred by the State, by holding the accused guilty for the offence under Section 302 of the IPC. When the matter was, further, carried before the Apex Court, the Apex Court set aside the order of the High Court and confirmed the order of the trial Court, convicting the accused under Section 304 (Part II) of the IPC, concurring with the findings recorded by the trial Court that the injuries sustained by the deceased were not sufficient in general course of nature to cause death, as the deceased had died after 8 days due to septicemia. 15. In the case on hand also, from the complaint as well as the DD given by the deceased, herself, it is clearly borne out that the date on which the alleged incident took place, the appellant had asked the deceased to go back to her parental home, while he makes alternative arrangement for their accommodation, and when the deceased refused to do so, the appellant got enraged, and then, the alleged incident took place. Thus, from the above it can safely be said that there was no intention or pre-mediation on the part of the appellant to do away with the deceased. There is no material on record to show that the appellant, in fact, had been planning for quite a some time to do away with the deceased or for that matter in the past, he had made any such attempt. Moreover, from the material on record, it becomes clear that the deceased sustained burn injuries on 12.06.2009, whereas, she expired on 03.07.2009, that too due to septicemia. We are, therefore, of the opinion that the trial Court was not justified in holding the appellant guilty under Section 302 of the IPC and instead, it ought to have convicted him under Section 304 (Part I) of the IPC. Under the circumstances, we are of the opinion that the ends of the justice would met if the conviction of the appellant is modified from 302 to Section 304 (Part I) of the IPC. 16. Under the circumstances, we are of the opinion that the ends of the justice would met if the conviction of the appellant is modified from 302 to Section 304 (Part I) of the IPC. 16. So far as the amount of fine and the default sentence are concerned, in view of the above discussion, same do not require any interference at the hands of this Court. 17. In the result, the appeal is allowed in PART. The judgment and order of the trial Court, Dated : 16.03.2011, recording the conviction of the appellant under Section 302 of the IPC is MODIFIED and he is convicted for the offence punishable under SECTION 304 (PART I) of the IPC and is sentenced to undergo imprisonment for TEN YEARS. Rest of the judgment and order of the trial Court stands CONFIRMED. A copy of this order be sent to the concerned jail authority, forthwith.