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2015 DIGILAW 996 (GUJ)

State of Gujarat v. Mehmood

2015-10-07

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 26.10.2005 passed by Additional Sessions Judge, Fast Track Court No. 1, Surendranagar, in Sessions Case No. 3 of 2005, whereby the respondent-original accused was convicted for the offence punishable under Section 304, Part-II of the Indian Penal Code and sentenced to suffer rigorous imprisonment for two and a half years and ordered to pay fine of Rs. 20,000/-, in default of making payment of fine, the accused shall undergo further rigorous imprisonment of seven months. For the offence punishable under Sections 504 and 427of IPC, the accused was acquitted. 2. The facts in brief giving rise to the filing of present appeal are as under: 2.1 As per the case of the prosecution, on 27.9.2003 at about 20.30 hours, the accused was scolded by his mother and brother-Rafikbhai, as he was quarreling with people of the village. Thereupon the accused started giving abuses to his mother and brother. At the same time, the accused also broke electric board, tube lights, bulb etc. It is also the case of the prosecution that as the accused was scolded by his brother, the accused kicked the live stove and because of that his brother got burn and ultimately he succumbed to such burn injuries. Therefore, a complaint being I-C.R. No. 175/2003 was registered against the accused with Limbadi Police Station. The accused was arrested in connection with the said offence. After completion of investigation, the charge sheet was filed against the accused for the offence punishable under Sections 304, Part-II, 504 and 427 of IPC. Thereafter, the case was committed to the Court of Sessions. The accused pleaded not guilty and claimed to be tried. 2.2 During the trial, the prosecution had examined following witnesses:-- Sr. No. Name Exhibit 1 Shankarbhai Dharmashibhai Bhusdiya, Executive Magistrate 6 2 Dr. Ashvinkumar Muljibhai Jashani 10 3 Jagdishbhai Pujabhai Makwana 12 4 Dr. Anand Dhirajlal Raniga 14 5 Halimaben Musabhai Khatki 18 6 Hushenbhai Allarakhabhai 19 7 Iqbal Musabhai 21 8 Zarinaben Rafiqbhai Musabhai 22 9 Kailashben Narandas Rana, Police Head Constable 23 10 Hirabhai Vithabhai Sindhav, ASI 25 11 Samatbhai Mulubhai Varotariya, PSI 29 2.3 The prosecution had also produced and relied upon following documentary evidence:- Sr. Anand Dhirajlal Raniga 14 5 Halimaben Musabhai Khatki 18 6 Hushenbhai Allarakhabhai 19 7 Iqbal Musabhai 21 8 Zarinaben Rafiqbhai Musabhai 22 9 Kailashben Narandas Rana, Police Head Constable 23 10 Hirabhai Vithabhai Sindhav, ASI 25 11 Samatbhai Mulubhai Varotariya, PSI 29 2.3 The prosecution had also produced and relied upon following documentary evidence:- Sr. No. Name Exhibit 1 Yadi written by P.S.O. Limbadi to Executive Magistrate, Limabadi for recording of Dying Declaration 7 2 Dying Declaration of deceased Rafiqbhai Musabhai 8 3 Certificate of R.R. Hospital, Limbadi regarding burn injuries received by Rafiq Musabhai 11 4 Panchnama of place of incident 13 5 Police Yadi 15 6 Postmortem Form 16 7 P.M. Report 17 8 Receipt of seizure of Muddamal from place of offence 20 9 Original Complaint 24 10 Original report of ASI Limbadi sent to J.M.F.C. Limbadi for addition of section 304 along with office copy 26 & 27 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, Mr. L.R. Pujari 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. He submitted that the prosecution has examined 11 witnesses in support of its case. The prosecution has also produced 10 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. He also submitted that it has come on record that the occurrence took place on 27.9.2003 and the deceased died on 3.10.2003 i.e. 6 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, however, lesser sentence is imposed upon the accused. 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 the learned trial Judge has rightly convicted the accused, however, lesser sentence is imposed upon the accused. 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 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. He also submitted that the learned Judge ought to have imposed maximum sentence on the present accused as provided under Section 304, Part-II of IPC. 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 section. He 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. He 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. On the other hand, learned counsel for the respondent-accused has contended that this is an accident and there was no motive on the part of the accused to commit murder or he was not having any knowledge that his act would result into death of his brother. He submitted that since there was no intention on the part of the accused or he was not knowing that his act of kicking the stove will result into his brother's death, the accused should be acquitted. He also submitted that the accused has already undergone the period of sentence imposed by the trial Court, therefore, enhancement appeal may not be allowed. He also submitted that the accused has already undergone the period of sentence imposed by the trial Court, therefore, enhancement appeal may not be allowed. He submitted that the trial Court has rightly appreciated the evidence on record and the sentence imposed upon the accused cannot be said to be less. He, therefore, prayed that this 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 27.9.2003 and the victim died on 3.10.2003. We have gone through the evidence on record. From the complaint, it is clear that due to the injuries received by him, the deceased was admitted in the hospital. From the evidence of medical officer, it is clear that the deceased died due to septicemia and therefore, in view of above decision of the Honourable Apex Court, it can be said that the learned trial Judge has committed an error while imposing punishment upon the accused. It is also noticed from the record that the deceased did not die immediately but, died after 6 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. 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 302read 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. 10. In the result, we set aside the conviction under Section 302read 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 Hon'ble 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. 2000 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 can be said that the learned trial Judge has committed an error while imposing punishment upon the accused and lesser punishment is imposed upon the accused. It is also clear that the deceased did not die immediately but died after 6 days and the main cause of death was reported to be septicemia because of injuries. It is also clear that the deceased did not die immediately but died after 6 days and the main cause of death was reported to be septicemia because of injuries. Not only that considering the evidence of mother of the deceased, who happens to be the mother of the accused also, and considering the dying declaration on record, we are of the opinion that the sentence imposed upon the accused is on lower side and it is required to be enhanced. In our opinion, the ends of justice would be met if the sentence imposed upon the accused is enhanced and if the accused is ordered to undergo imprisonment for five years instead of two and a half years. It can 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 allowed. 8. For the aforesaid reasons, this appeal is partly allowed. The impugned judgment and order dated 26.10.2005 passed by Additional Sessions Judge, Fast Track Court No. 1, Surendranagar, in Sessions Case No. 3 of 2005 is modified and the sentence imposed by the impugned judgment for offence punishable under Section 304, Part-II of IPC is enhanced from two and a half years rigorous imprisonment to five years rigorous imprisonment. Remaining part of the impugned judgment shall remain unaltered. The accused shall surrender before the jail authorities within a period of ten weeks from today to serve the remaining period of sentence. Bail bond, if any, of the accused stands cancelled. Record and Proceedings, if lying here, be sent back to the concerned trial Court forthwith.