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2015 DIGILAW 837 (GUJ)

State of Gujarat v. Prakashdas Gordhandas Ramavat

2015-08-28

G.B.SHAH, K.S.JHAVERI

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Judgment K.S. Jhaveri, J. 1. This appeal under Section 377 of the Code of Criminal Procedure, 1973 is preferred for enhancement of sentence imposed by judgment and order dated 11.8.2010 passed by the learned 6th Additional Sessions Judge, Rajkot, in Sessions Case No. 121 of 2009, whereby the respondent-original accused was convicted for the offence punishable under Section 326 of the Indian Penal Code and sentenced to suffer rigorous imprisonment of six years and fine of Rs. 5,000/-, in default of making payment of fine, the accused shall undergo further simple imprisonment of six months. For the offence punishable under Section 504 of IPC, the accused was sentenced to suffer simple imprisonment of six months and for the offence punishable under Section 188 of IPC, he was sentenced to suffer simple imprisonment of one month. 2. The facts in brief giving rise to the filing of present appeal are as under: 2.1. The complainant Kanuben Prakashdas Ramavat, lodged complaint before "B" Division Police station being I-CR No. 83/09 against present accused for the offences punishable under Sections 326, 302, 504 and 188of Indian Penal Code. It is the case of the prosecution that present accused-husband of the complainant, on 23.4.2009, at about 1 hour in night, went to his house situated in the area of Bhagvatipara, at the river bank, Rajkot, had abused his wife with an intention to provoke her to commit offence and when she told him not to give filthy abuses, he got provoked, inflicted knife blows on her inner part of the abdomen below the navel, caused grievous injuries and during the course of treatment, she died. Therefore, the complaint was lodged. After completion of investigation, the charge sheet was filed against the accused for the offence punishable under Sections 326, 302, 504 and 188 of the Indian Penal code. Thereafter, the case was committed to the Court of Sessions and registered as Sessions Case No. 121 of 2009. The accused pleaded not guilty and claimed to be tried. 2.2. During the trial, the prosecution had examined following witnesses; Wt. No. Name of Prosecution Witness Exhibit No. 1 Babubhai Haribhai Miyatra 10 2 Bhanubhai Khengarbhai Danger 12 3 Nathabhai Kishandas Ramavat 14 4 Kalubhai Mangaldas Ramavat 15 5 Dr. The accused pleaded not guilty and claimed to be tried. 2.2. During the trial, the prosecution had examined following witnesses; Wt. No. Name of Prosecution Witness Exhibit No. 1 Babubhai Haribhai Miyatra 10 2 Bhanubhai Khengarbhai Danger 12 3 Nathabhai Kishandas Ramavat 14 4 Kalubhai Mangaldas Ramavat 15 5 Dr. Harshaben Shankarbhai Patel 17 6 Roshanben Khamisha Katiyara 24 7 Dineshdas Rameshdas Bavaji 28 8 Babulal Ramjibhai Madiya 29 9 Keshabhai Devshibhai 34 10 Komal Prakashbhai 48 11 Vinodkumar Manubhai Gomti 52 12 Anilbhai Shivshankar Raval 59 13 Maledbhai Virambhai Parmar 63 2.3. The prosecution had also produced and relied upon several documentary evidence, particularly, the panchnama of the place of offence, Exh. 11, Panchnama of Arrest, Exh. 16, P.M. report Exh. 18, Cause of death Exh. 19, Final Cause of Death Exh. 20, Letter written to FSL Exh. 21, Copy of the form to be filled at the time of sending viscera for examination to the laboratory, Exh. 22, Extract of station diary Exh. 23, Inquest Panchnama Exh. 25, Yadi sent to PSO 30, Original complaint Exh. 31, Memo of arrest Exh. 32, Extract of station diary 5/09, Exh. 35, Extract of entry No. 7/09 of station diary, Exh. 36, Extract of entry No. 3/09 of station diary, Exh. 37, Map Exh. 53, Yadi sent to Circle Officer for preparing map of the place of offence Exh. 54, Notification Exh. 60, Special report regarding offence Exh. 61, Letter written to medical officer for sending his opinion after carrying out postmortem Exh. 65, Police report for carrying out postmortem Exh. 66, Letter written by Police Inspector to FSL with other documents Exh. 67, Yadi sent by medical officer to Police Inspector regarding blood sample Exh. 70, Letter written by FSL, Exh. 71, 72, Letter written by FSL and its report Exh. 73, Letter written by FSL Exh. 74. 2.4. At the end of trial, the Court below recorded further statement of accused person under Section 313 of Cr.P.C. and thereafter, passed the impugned judgment and order of acquittal, which has led to the filing of present appeal. 3. Learned APP, Ms. 71, 72, Letter written by FSL and its report Exh. 73, Letter written by FSL Exh. 74. 2.4. At the end of trial, the Court below recorded further statement of accused person under Section 313 of Cr.P.C. and thereafter, passed the impugned judgment and order of acquittal, which has led to the filing of present appeal. 3. Learned APP, Ms. Shah appearing for the appellant-State has taken us through the oral as well as documentary evidence and contended that the trial Court has committed an error in imposing lesser sentence upon the accused inspite of voluminous evidence against him and also contended that the trial Court ought not to have imposed such a lesser punishment. She submitted that the prosecution has examined 13 witnesses in support of its case. The prosecution has also produced 28 documentary evidences on the record of the case. However, without appreciating those documentary as well as oral evidence available on the record of the case in its proper perspective, learned Judge has erred in imposing lesser punishment. She further submitted that the learned Judge has also erred in not properly appreciating the gravity of the offence committed by the accused while imposing the sentence and thereby committed grave error by imposing lesser punishment. She also submitted that the learned Judge ought to have imposed maximum sentence on the present accused as provided under Sections 326, 504 and 188 of Indian Penal Code. Hence, impugned judgment and order passed by learned Judge in imposing the minimum sentence deserves to be quashed and set aside by this Hon'ble Court and the sentence imposed to the accused deserves to be enhanced to maximum sentence as provided under the aforesaid sections. She also submitted that the learned Judge failed to appreciate the seriousness of the offence committed by the accused while imposing the sentence. The learned Judge also failed to appreciate that there is no sufficient and reasonable cause for the learned Judge to impose lesser punishment. She also submitted that the learned Judge failed to appreciate that there is no any mitigating circumstance to impose less than ten years punishment and it is very clear from the facts and circumstances of the case and the material available on record of the case that there is aggravating circumstances in which Hon'ble Judge ought to have imposed the maximum sentence as provided under the law. 4. 4. On the other hand, learned counsel for the respondent-accused has contended that so far as imposition of punishment is concerned, learned trial Judge has not committed any error. He also submitted that it has come on record that the occurrence took place on 23.4.2009 and the deceased died on 9.5.2009 i.e. 16 days after the incident and the cause of death as stated by the doctor is septicemia. He, therefore, submitted that the learned trial Judge has rightly convicted the accused for offence under Section 326 of IPC and the sentence imposed upon the accused cannot be said to be less in view of the aforesaid fact. In support of his submission, he has relied upon the decision of the Honourable Apex Court in B.N. Kavatakar and another v. State of Karnataka [1994 Supp (1) SCC 304]. He, therefore, submitted that this Court may not interfere with the impugned judgment and the appeal may be dismissed. 5. We have heard learned APP for the appellant and learned advocate for the respondent-accused. We have also perused the record and gone through the impugned judgment. The incident in question occurred on 23.4.2009 and the victim died on 9.5.2009. We have gone through the evidence on record. From the complaint, it is clear that due to the injuries received by her she was admitted in the hospital. From the evidence of medical officer, Exh. 17, it is clear that the deceased died due to septicemia and therefore, in view of above decision of the Honourable Apex Court, it cannot be said that the learned trial Judge has committed any error while imposing punishment upon the accused. It is also noticed from the record that the deceased did not die immediately but, died after 16 days. The main cause of death was reported to be Septicemia because of injuries. In B.N. Kavatakar and another v. State of Karnataka [1994 Supp (1) SCC 304], the Honourable Apex Court observed as under:-- "9. The next question that comes up for our consideration is what is the nature of the offence that the appellants have committed. The Medical Officer who conducted autopsy on the dead body of the deceased has opined that the death was as a result of septicemia secondary to injuries and peritonitis. As we have indicated above, the deceased died after five days of the occurrence in the hospital. The Medical Officer who conducted autopsy on the dead body of the deceased has opined that the death was as a result of septicemia secondary to injuries and peritonitis. As we have indicated above, the deceased died after five days of the occurrence in the hospital. On an overall scrutiny of the facts and circumstances of the case coupled with the opinion of the Medical Officer, we are of the view that the offence would be one punishable under Section 326 read with Section 34 IPC. 10. In the result, we set aside the conviction under Section 302 read with Section 34 IPC and the sentence of imprisonment for life imposed therefore on each of the appellants. Instead we convict them under Section 326 read with Section 34 IPC and sentence each of the appellants to undergo rigorous imprisonment for a period of three years. With the above modification in the conviction and sentence, the appeal is dismissed." 6. Similarly, in Ganga Dass @ Godha v. State of Haryana [1994 Supp (1) SCC 534], the Honble Supreme Court in para-36 observed as under; "36. We find considerable force in this submission. As stated above the occurrence took place on November 18, 1988 and the deceased died 18 days later on December 5, 1988 due to septicemia and other complications. The Doctor found only one injury on the head and that was due to single blow inflicted with an iron pipe not with any sharp-edged weapon. Having regard to the circumstances of the case, it is difficult to hold that the appellant intended to cause death nor it can be said that he intended to cause that particular injury. In any event the medical evidence shows that the injured deceased was operated but unfortunately some complications set in and ultimately he died because of cardiac failure etc. Under these circumstances, we set aside the conviction of the appellant under Section 302 IPC and the sentence of imprisonment for life awarded thereunder. Instead we convict him under Section 304 Part II IPC and sentence him to undergo six years RI. The sentence of fine of Rs. 2,000 along with default clause is confirmed. Accordingly the appeal is partly allowed." 7. Instead we convict him under Section 304 Part II IPC and sentence him to undergo six years RI. The sentence of fine of Rs. 2,000 along with default clause is confirmed. Accordingly the appeal is partly allowed." 7. In view of above discussion, it is clear that the victim died due to septicemia and in view of above decisions of the Honourable Apex Court, it cannot be said that the learned trial Judge has committed any error while imposing punishment upon the accused. It is also clear that the deceased did not die immediately but died after 16 days and the main cause of death was reported to be septicemia because of injuries. Therefore, it cannot be said that the learned trial Judge has imposed lesser punishment upon the accused and this appeal preferred for enhancement of punishment is required to be dismissed. 8. For the foregoing reasons, the appeal is dismissed and the impugned judgment and order is confirmed. Bail bonds stand discharged. If the accused has not undergone the period of sentence imposed by the impugned judgment, he shall surrender before the jail authorities within a period of eight weeks from today to serve out the remaining period of sentence and if he has already undergone the period of sentence, he need not surrender. Record and proceedings, if lying here, be sent to the Court below forthwith. Appeal Dismissed.