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2013 DIGILAW 682 (GUJ)

Rameshbhai Dahyabhai Rathod v. State of Gujarat

2013-11-26

K.J.THAKER, K.S.JHAVERI

body2013
Judgment K.S. Jhaveri, J.—This is an appeal by the appellant, who was original accused in Sessions Case No. 45 of 2010, whereby, he has challenged the judgment and order of the learned Sessions Judge, Navsari, Dated : 06.06.2011, 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. 5,000/- and in default to undergo further simple imprisonment for two years. 2. The brief facts of the case, leading to filing of the present appeal reads as under; 3. A complaint came to be lodged by one Rameshbhai Bhanabhai Rathod, who happened to be the cousin of the deceased Rekhaben, before PI, Jalalpore Police Station on 03.07.2010, wherein, he stated that the deceased was married to the appellant before about fifteen years and that they were residing in the same vicinity. The complainant, then, went on to narrate the alleged offence stating that on the date of the alleged offence, the appellant came to his house and asked him, whether, any work would be available for him, since, it was his day off. Then, the complainant took the appellant with him on labour work and they came back home from work at about 12:30 p.m. and went to their respective homes and sometimes thereafter, the complainant heard the voices of the appellant and the deceased and it appeared to him, as if they were quarreling. The complainant, hence, went to the house of the appellant and on reaching there he found that the appellant was beating the deceased with a stick and she had fallen down and was bleeding from her mouth and the head and the appellant was shouting that why do you call Suresh Chhanabhai Rathod at home in my absence and that you have illicit relations with him. The complainant, then, intervened and parted them. Later on, the deceased succumbed to her injuries. 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. CJM, Navsari. 4. To bring home the charges leveled against the appellant, the prosecution examined the following witnesses; PROSECUTION NAME OF THE WITNESS EXHIBIT NO. 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. CJM, Navsari. 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 Dhirendrakumar Dhanuram Das 7 2 Dipak Gulabbhai Rathod 10 3 Govindbhai Paragbhai Dhimmar 12 4 Rameshbhai Bhanabhai Rathod 13 5 Mukeshbhai Bhanwarlal Khatri 15 6 Yogendrabhai Pramodbhai 17 7 Mukesh Ramarao Aathvale 19 8 Gitaben Vijaybhai 20 9 Rameshbhai Budhiyabhai 21 10 Sumanbhai Bachubhai 23 11 Bhagubhai Zinabhai 24 12 Binaben Rameshbhai 25 13 Satyanarayan Gayaprasad Rajput 26 14 Bavanbhai Fuljibhai 28 15 Dr. Dhavalkumar Muktibhai Mehta 30 16 Ganesh Parsotamdas Patel 34 17 Pradip Gijubhai Patel 40 5. The prosecution also placed reliance on the following documentary evidences in support of its case; SR. PARTICULARS OF THE DOCUMENTS EXHIBIT NO. NO. 1 Original complaint 14 2 Inquest panchnama 18 3 Panchnama of place of offence 11 4 Arrest panchnama and seizure of clothes of the accused 22 5 Panchnama of discovery of weapon 16 6 PM Report 32 7 Cause of death certificate 33 8 Serological report of FSL 41 9 Notification, as per Bombay Police Act 39 10 The extract of Station Diary 27 11 The extract of Station Diary 29 6. Then, the trial Court passed the judgment and order, as referred to herein above. Hence, the present appeal. 7. Heard, Mr. Barod, learned Counsel for the appellant and Mr. Soni, learned APP on behalf of the opponent-State and perused the material on record with their assistance. 8. In order to prove its case beyound doubt, the prosecution examined the complainant, who happened to be an eye-witness of the alleged offence, as P.W.-4 at Exhibit-13. In his examination-in-chief, this witness reiterated the facts already narrated by him in his complaint given before the police, stating as to how he found the deceased and the appellant quarreling, at which point of time, the appellant inflicted injuries on the deceased with stick, on account of which the deceased expired, subsequently. According to this witness, the reason for the alleged offence was that the appellant had a doubt that the deceased had illicit relations with one Suresh. According to this witness, the reason for the alleged offence was that the appellant had a doubt that the deceased had illicit relations with one Suresh. This witness, then, identified before the Court, the appellant as well as the muddamal article No. 7-the stick, as the weapon, with which the appellant had inflicted injuries on the deceased. This witness, in his cross-examination, denied the suggestion that the appellant had not beaten up the deceased and that he had lodged a false complaint. Thus, the evidence of this witness remains un-contoroverted on material aspects. 9. The evidence of P.W.-4 stands corroborated from the evidence of P.W.-12, who happened to be the minor daughter of the deceased and the appellant and who had also witnessed the alleged offence being committed. In her examination-in-chief, P.W.-12 stated that when she came back home after playing, she found that her father, i.e. the appellant, was beating her mother and due to that she expired. This witness was thoroughly cross-examined by the learned Advocate for the defence. In his cross-examination, P.W.-12 stated that her mother did not die only because of illness, but, because of the infliction of injury on the nose of her mother by her father. 10. The evidence of P.W.-15, who was discharging duties as MO, PHC, Vesma, and who had performed PM on the body of the deceased, supports the case of the prosecution on the aspect that the deceased died of a homicidal death. P.W.-15, in his examination-in-chief, stated that at the time of PM, he had notice about six injuries on the body of the deceased, which are mentioned at Column No. 17 of PM report; “Injury No. (1) : Irregular shape bruise on abdomen, 5 cm above umbilicus at middline, size – 8 cm X 5 cm, colour dark reddish, oblique; Injury No. (2) : Irregular shape bruise on abdomen, 4 cm left to umblicus, size – 2 cm X 2 cm, colour – darkredish, oblique; Injury No. (3) : Irregular shape bruise on face , 1 cm below lateral end of Eye, size – 4 cm X 2 cm, colour dark redish, oblique; Injury No. (4) : CLW on nose with communicated fracture of underlir bone, situated at upper part of nose, size – 2.5 cm. X 1 cm.(W) X 1.5 cm (Dip) basered, vertical – situation; Injury No. (5) : Clw at right leg, 6 cm, below knee joint, with fracture of underline bone size - ½ cm (W) X ½ cm (L) X bone deep oblique – situation base red; Injury No. (6) : Multiple bruise of various sizes and shapes situated on upper back, lower back, both glueteal region, posterior part of left arm, lateral side of both midthigh.” 11. According to P.W.-15, the cause of death of the deceased was hemorrhagic shock due to rupture of spleen and polytrauma. 12. The case of the prosecution also gets support from the evidence of (1) P.W.-1-the doctor, who had provided treatment to the appellant on the date of the alleged offence, (2) P.W.-11, who happened to be father of the deceased and who had found the body of the deceased lying at her house, (3) P.W.-13, who had registered the offence, (4) P.W.-14, who had received the information about the alleged offence from H.C., Pradip Krishnarao, (5) P.W.- 16, who carried out investigation into the alleged offence at initial stage and (6) P.W.-17, who had taken over the investigation from P.W.-16 and filed a charge-sheet against the accused persons. 13. Insofar as the evidence of P.W. Nos. 2, 3, 5, 6, 7, 8, 9 and 10 are concerned, they did not support the case of the prosecution in any manner and were declared hostile. 14. Thus, from the evidence of eyewitnesses, i.e. P.W.-4 and P.W.-12, which gets support from the medical evidence of P.W.-15, it stands proved beyound doubt that the deceased died of homicidal death due to injuries inflicted on her by the appellant. Having concurred with the view taken by the trial Court, holding the appellant guilty for the act of causing death of his wife, what we now have to examine is, as to whether the trial Court was justified in recording conviction of accused under Section 302 of the IPC or not? In that view of the matter, here, it would be relevant to refer to a decision of the Apex Court in the case of “Ankush Shivaji Gaikwad vs. State of Maharashtra”, 2013 (6) Scale 778. In that case, while the original Accused Nos. In that view of the matter, here, it would be relevant to refer to a decision of the Apex Court in the case of “Ankush Shivaji Gaikwad vs. State of Maharashtra”, 2013 (6) Scale 778. In that case, while the original Accused Nos. 1 to 3 were passing through the filed of the deceased, wherein the crop of sugar-cane was taken by the deceased, the dog of the deceased started barking at them and being aggrieved thereby original Accused No. 1 hit the dog with an iron pipe and when the deceased objected to the same, there was exchange of hot words, which resulted into a scuffle, during which original Aaccused Nos. 2 and 3 delivered kick and fist blows to the deceased, whereas, Accused No. 1 inflicted blow of iron pipe on the head of the deceased, on account of which the deceased expired, subsequently. The trial Court as well as the High Court held the Accused No. 1 guilty for the offence of murder and convicted him under Section 302. Being aggrieved there by the Accused No.1 approached the Hon’ble Apex Court and the Apex Court, taking into consideration the facts and circumstances of the case that there was a sudden quarrel, modified the conviction of the Accused No. 1 from Section 302 to Section 304 (II) of the Indian Penal Code. 15. In the case on hand also, from the complaint given by P.W.-4 as well as from his deposition, it is clearly borne out that on the date of the alleged incident, the appellant and P.W.-4 had gone for labour work in the morning and came back home in the afternoon, at which point of time, the appellant found the deceased talking to one Sureshbhai Chhanabhai Rathod and on account of that he got enraged and later on the alleged offence took place. In other words, the alleged incident took place at the spur of the moment and there is no material on record to show that there was any premeditation on the part of the appellant to do away with the deceased. We are, therefore, of the opinion that the trial Court ought not to have convicted the appellant under Section 302, but, ought to have convicted him under Section 304 (Part I) of the IPC. We are, therefore, of the opinion that the trial Court ought not to have convicted the appellant under Section 302, but, ought to have convicted him under Section 304 (Part I) of the IPC. Hence, we are of the opinion that the ends of justice would met, if, the conviction of the appellant is modified from Section 302 to Section 304 (Part I) of IPC and is sentenced to undergo imprisonment for ten years, while maintaining the fine, but, reducing the default sentence to six months. 16. In the result, the appeal is allowed in PART. The judgment and order of the trial Court, Dated : 06.06.2011, recording the conviction of the appellant under Section 302 of the IPC is MODIFIED and he is convicted under SECTION 304 (PART I) of the IPC and is sentenced to undergo imprisonment for TEN YEARS, and though, the amount of fine is maintained, the default sentence is reduced to SIX MONTHS. The appellant shall be granted all the benefits, i.e. remission etc., as available to him under the law. Moreover, it shall be open to the competent authority to consider the case of the appellant for early release, at appropriate stage. A copy of this order be sent to the concerned jail authority, forthwith.