Research › Search › Judgment

Gujarat High Court · body

2015 DIGILAW 825 (GUJ)

Rafiqahmed Azizahmed Shaikh v. State of Gujarat

2015-08-24

K.J.THAKER, M.R.SHAH

body2015
Judgment M.R. Shah, J. 1. Feeling aggrieved and dissatisfied with the impugned judgment and order of conviction and sentence passed by the Addl. City Sessions Court No. 2, Ahmedabad (for short, 'trial Court'), in Sessions Case No. 139 of 2003 by which the trial Court convicted both the original accused Nos. 1 and 2 for the offence punishable under Section 302 read with Section 114 the Indian Penal Code and sentenced them to undergo imprisonment for life and to pay fine of Rs. 1,000/- each and in default to undergo further rigorous imprisonment for six months, the appellants, herein, original accused have preferred the present appeal. The accused were also convicted for the offence punishable under Section 498(A) of the Indian Penal Code and were sentenced to undergo rigorous imprisonment for two years and to pay fine of Rs. 1,000/- each and in default to undergo further rigorous imprisonment for six months. 2. At the outset, it may be noted that the appellant No. 1, herein, the original accused No. 1, Rafiqahmed Shaikh, expired during the pendency of the appeal, as observed and noted by the Division Bench of this Court in its order dated Criminal Misc. Application No. 14974 of 2008, Dated: 22.12.2008. Under the circumstances, present appeal by appellant No. 1, herein, original accused No. 1, stands DISMISSED as having been ABATED. 3. Under the circumstances, the present appeal is required to be considered qua original accused No. 2-appellant No. 2, herein, only. 4. An FIR being I-C.R. No. 80 of 2002, came to be registered with Rakhiyal Police Station, which was lodged by the deceased, the victim, herself, against the accused persons for the offence punishable under Sections 323, 498(A),302 and 114 of the Indian Penal Code and Section 7 of the Dowry Prohibition Act. On registration of the complaint, the concerned Investigating Officer of the Rakhiyal Police Station started investigation. It was specifically alleged by the deceased victim, i.e. the daughter-in-law, of the original accused persons that both accused Nos. 1 and 2, with a view to get rid of her, poured kerosene on her and original accused No. 1 set her ablaze. That during the course of her treatment at Shardaben Hospital, the deceased succumbed to the injuries on 09.09.2002. After that the I.O. Recorded the statements of the concerned witnesses and prepared the panchnama of place of offence etc. That during the course of her treatment at Shardaben Hospital, the deceased succumbed to the injuries on 09.09.2002. After that the I.O. Recorded the statements of the concerned witnesses and prepared the panchnama of place of offence etc. On completion of the investigation, the I.O. filed the charge-sheet against the accused persons for the offence punishable under Sections 323, 498-A, 302 and 114 of the Indian Penal Code and Section 7 of the Dowry Prohibition Act. As the case was exclusively triable by a Court of Sessions, the learned Magistrate committed the case to the Sessions Court. Thereafter, the learned Sessions Court framed charge against the accused vide Exhibit-3 for the offences punishable under Sections 323, 498-A, 302 and 114 of the Indian Penal Code and Section 7 of the Dowry Prohibition Act. As the accused pleaded not guilty, they came to be tried for the offences charged against them by the trial Court. 5. To prove the case against the accused, the prosecution examined the following witnesses; Prosecution witness No. Name of the witness Exhibit No. 1 Islamkhan Sehzadkhan Pathan 12 2 Nazmabanu Mukhtiyarahmad Pathan 19 3 Shilpaben Kanubhai Yadav 20 4 Nazmabanu Islamkhan Pathan 22 5 Sureshkumar Revandas Parmar 24 6 Rameshkumar Sakharam Gavde 25 7 Abdul Kadirkhan 28 8 Mohmmed Yunis Abbasbhai Mansuri 29 9 Hirabhai Amthabhai Solanki 32 10 Ashokkumar Sakrabhai Patel 36 11 Shivnathsinh Rajendrasinh Yadav 42 12 Udesinh Dalabhai 43 6. The prosecution through the aforesaid witnesses, produced the following documentary evidences; Sr. No. Particulars of the Document Exhibit No. 1 Complaint 53 2 Report prepared under Section 157 of the Cr.P.C. 33 3 Report of FSL officer 44 4 Panchnama of place of offence 45 5 Inquest panchnama 32 6 Map of the place of offence 38 7 Note sent the FSL, receipt issued by FSL and opinion of FSL 46, 47, 48 8 PM Report 21 9 The extract of Station Diary 26, 27 10 Letter received by Executive Magistrate from Rakhiyal Police Station 30 11 The extract of Station Diary 34 12 The statement of the deceased dated 28.08.2002 15 13 DD of the deceased 16 14 The statement of the Islamkhan Shehzadkhan Pathan 17 7. After closure of the evidence of the prosecution, the further statements of the accused, under Section 313 of the Code of Criminal Procedure, came to be recorded. After closure of the evidence of the prosecution, the further statements of the accused, under Section 313 of the Code of Criminal Procedure, came to be recorded. As both the accused denied to have committed the offence alleged against them, they were tried. 8. At the end of the trial, the trial Court vide impugned judgment and order, more particularly, considering the Exhibit-53, i.e. the FIR lodged by the deceased-victim, herself, and considering the P.M. note held that the death of the deceased was homicidal one and by the impugned judgment and order convicted the accused for the offence punishable under Sections 498(A), 302 read with Section 114 of the Indian Penal Code, whereas, acquitted them of the charges for the offence punishable under Section 323 of the Indian Penal Code and Section 7 of the Dowry Prohibition Act. 9. Feeling aggrieved and dissatisfied with the impugned judgment and order passed by the learned trial Court convicting and sentencing both the accused as above, they have preferred the present appeal. 10. As observed, herein above, present appeal, so far as the original accused No. 1 is concerned, stands abated as he has expired. 11. Mr. Hemant Raval, learned Advocate for the appellant No. 2, herein, the original accused No. 2, has relied upon the cause of death mentioned in the P.M. Note and has vehemently submitted that even as per the P.M. Note, the cause of death of the deceased, which is supported by the evidence of the doctor, who had treated the deceased and had also performed P.M. on her body, was due to septicemia. He, therefore, submitted that the learned trial Court has materially erred in convicting the accused for the offence under Section 302 of the Indian Penal Code. He has, further, submitted that in the facts and circumstances, the case would fall under Section 304 (Part I or Part II) of the Indian Penal Code. He submitted that looking to the fact that more than 11 years have elapsed since the alleged offence and as all throughout the accused No. 2 was on bail, except from the date of conviction till 22.12.2008, whereupon, she was enlarged on bail by this Court, it is requested to take a lenient view while imposing sentence. 12. In support of his above submissions, Mr. 12. In support of his above submissions, Mr. Hemant Raval, learned Advocate for the appellant No. 2, herein, the original accused No. 2, has placed heavy reliance on the following decision of the Apex Court in the case of "MANIBEN VS. STATE OF GUJARAT", (2009) 8 SCC 796. 13. On the strength of the aforesaid authoritative pronouncement, he prayed that the case of the accused No. 2 be considered for the offence punishable under Section 304 (Part I or Part II) in place of Section 302 of the Indian Penal Code. 14. On the other hand, Mr. Himanshu Patel, learned APP appearing on behalf of the Respondent-State, vehemently opposed the present appeal. He has submitted that as such on appreciation of the evidence and considering the complaint (Exhibit-53) lodged by the deceased-victim, herself, in which the deceased specifically stated that the accused No. 2 poured kerosene on her and the accused No. 1 set her ablaze, the learned trial Court has not committed any error. He, hence, submitted that taking into consideration the manner in which the alleged incident took place, the trial Court has rightly convicted the accused, and hence, it cannot be said that the trial Court has committed any error in convicting the accused under Section 302 of the Indian Penal Code. But, he is not in a position to dispute the fact that the deceased expired/died due to septicemia. He, however, submitted that in any case, the case would not fall under Section-304 (Part II) of the Indian Penal Code. He, hence, requested to impose maximum punishment under Section 304 (Part I) of the Indian Penal Code on the accused No. 2, even if, the submission of Mr. Raval is considered and accepted. 15. Heard learned Advocates for the parties at length. We have also perused the impugned judgment and order passed by the learned trial Court as well as the entire material on record. We have also appreciated and re-appreciated the entire evidence oral as well as documentary. 16. At the outset, it is required to be noted that the deceased-victim, herself, gave the complaint (Exhibit-53), which came to be registered with Rakhiyal Police Station, in which she specifically stated that both the accused with a view to get rid of her poured kerosene on her and set her ablaze. 16. At the outset, it is required to be noted that the deceased-victim, herself, gave the complaint (Exhibit-53), which came to be registered with Rakhiyal Police Station, in which she specifically stated that both the accused with a view to get rid of her poured kerosene on her and set her ablaze. The complaint (Exhibit-53) is proved by the prosecution by examining the concerned Officer, who had recorded the said complaint. Therefore, as such, the learned trial Court has committed no error in considering and relying on the complaint (Exhibit-53) lodged by the deceased victim, as the same is reliable. From the evidence on record, more particularly, P.M. Note (Exhibit-21) and the deposition of the doctor, PW-3, who had treated the deceased-victim and who had performed P.M. on the dead body of the deceased-victim, it transpires that the death of the deceased-victim was due to septicemia due to burns over body. Under the circumstances, the trial Court rightly held that the death of the deceased was homicidal one. 17. Now, the next question, which arises for the consideration of this Court is what offence the accused is said to have committed. As observed, herein above, the deceased died because of septicemia, after a period of about 10 to 11 days from the date of the alleged offence. Under the circumstances, it cannot be said that the case of the accused would fall under Section 300 of the Indian Penal Code. Considering the decision of the Apex Court in "MANIBEN VS. STATE OF GUJARAT" (Supra), as the cause of the death of the deceased-victim was septicemia, the case of the accused would fall under Section 304 (Part I) of the Indian Penal Code and we do not accept the submission of Mr. Raval that the case of the accused would fall under Section 304 (Part II) of the Indian Penal Code, more particularly, in view of the evidence on record. 18. Considering the evidence on record and the depositions of the concerned witnesses, as such, the learned trial Court has rightly convicted the accused for the offence under Section 498(A) of the Indian Penal Code and has rightly imposed the sentence of imprisonment for two years. 19. In view of the above discussion and for the reasons stated, herein above, present Appeal succeeds in PART. 19. In view of the above discussion and for the reasons stated, herein above, present Appeal succeeds in PART. The appellant No. 2, herein, the original accused No. 2, is convicted for the offence punishable under SECTION 304 (PART I) of the Indian Penal Code in place of the offence punishable under Section 302 of the Indian Penal Code and she is sentenced to undergo rigorous imprisonment for SEVEN YEARS, while maintaining the amount of fine and the default sentences. Further, the conviction of the appellant, herein, the original accused No. 2 under Section 498(A) of the Indian Penal Code along with the sentence and fine imposed imposed by the trial Court is CONFIRMED. However, the sentences for the offence under Section 304 (Part I) and Section 498(A) of the Indian Penal Code shall run concurrently. The accused No. 2 is on bail, hence, her bail bonds stands CANCELED. The appellant No. 2, herein, the original accused No. 2, shall surrender before the concerned jail authorities within a period of FOUR WEEKS from today to serve the remaining sentence. Appeal stands disposed off. Appeal Partly Allowed.