Research › Search › Judgment

Gujarat High Court · body

2016 DIGILAW 217 (GUJ)

Yasminben v. State of Gujarat

2016-01-29

K.S.JHAVERI, R.P.DHOLARIA

body2016
JUDGMENT : K.S. Jhaveri, J. 1. Heard learned Advocate for the appellant accused Mr. Shakeel A. Qureshi and learned Additional Public Prosecutor for the respondent-State Mr. L.R. Pujari. 2. By way of this Appeal, the appellant the original accused No. 4 has felt aggrieved by the judgment and order of conviction and sentence dated 20.07.2010 of the learned Additional Sessions Judge, Fast Track Court No. 5, Gondal in Sessions Case No. 47 of 2009 whereby the appellant accused herein under Section 302 of the Indian Penal Code was sentenced to undergo life imprisonment and was also ordered to pay a fine of Rs. 500/- in default a simple imprisonment of further two months. 3. The case in brief and the incident which occurred on 22.03.2009 are as under:- 3.1 As per the complaint narrated by the deceased complainant - Salimaben on the said day at Rajkot Civil Hospital before ASI Mr. J.U. Jhala, her marriage was conducted with Farukbhai Rafiqbhai as per the customs and traditions of her community and she was living in her matrimonial home. On 23.03.2009, the complainant's mother-in-law, father-in-law and her husband was present in the house. It is alleged by the complainant that there was a dispute raised by the accused herein with the complainant about washing of clothes and also that the household chores were not being done properly by the complainant. It is alleged that verbal abuses were hurled at the complainant by the accused herein and beatings were also inflicted on the complainant. At that juncture, it is alleged that even the brother-in-law of the complainant Hussainbhai arrived and verbal abuses as well as beatings were inflicted on the complainant. This fact was narrated by the complainant to her husband but still no one questioned the said acts of abuses and beatings. It is alleged thereafter, that the accused herein sprinkled kerosene on the body of the complainant and burnt her. 3.2 Primary treatment was initially given to the complainant at the Gondal Government Hospital and for further treatment, she was admitted to the Burns Ward, Rajkot Civil Hospital. A complaint in this respect was registered before Gondal Taluka Police Station bearing I-C.R. No. 42 of 2009 under Sections 307, 498(A), 323 and 114 of the Indian Penal Code. Investigation commenced and the complainant expired during the period of treatment at the Burns Ward, Rajkot Civil Hospital on 26.03.2009. A complaint in this respect was registered before Gondal Taluka Police Station bearing I-C.R. No. 42 of 2009 under Sections 307, 498(A), 323 and 114 of the Indian Penal Code. Investigation commenced and the complainant expired during the period of treatment at the Burns Ward, Rajkot Civil Hospital on 26.03.2009. Hence, charge-sheet was led under Sections 498(A), 323, 307, 302 and 114 of the Indian Penal Code. The charge-sheet was led before the learned Magistrate and the case was committed to the Sessions Court, being Sessions triable case. The accused pleaded not guilty to the charges levelled against them. On completion of the evidence of prosecution, further statement of the accused under Section 313 of the Code of Criminal Procedure were recorded. 3.3 At the time of the trial, the prosecution examined the following witnesses:- Particulars Exhibit Panch Witness Harunbhai Musabhai Joban 30 Panch Witness Hasanbhai Osmanbhai 32 Panch Witness Rafiqbhai Umarbhai Parmar 34 Witness Nathabhai Abubhai 38 ASI Jayendrasinh Umedsinh Jhala 42 Deputy Mamlatdar A.K. Namsha 46 Dr. Harshaben Shankarlal Patel 49 Faridaben Afzalbhai Dabhawala 55 Afzalbhai Habibbhai Dabhawala 56 Ruksanaben Ismailbhai 57 Ismailbhai Habibbhai Dabhawala 58 Yusufbhai Mohammedbhai Dabhawala 59 PSI Alpeshkumar Babubhai 61 The prosecution also relied upon various documentary evidence, some of them are:- Particulars Exhibit Panchnama of the scene of Incident 31 Seizure Panchnama 33 Arrest Panchnama 35 Inquest Panchnama 36 Original complaint 43 Yadi for taking the dying declaration 44 Extract of the copy of the MLC Register 45 Dying Declaration 47 Post Mortem Note 50 Police Yadi 51 Report for the serious offences 63 Mobile laboratory Report of the FSL 64 Receipt for the Receipt of Muddamal by the FSL 65 Letter of FSL Junagadh 67 FSL Report 68 3.4 At the end of the trial, the learned Additional Sessions Judge passed the above judgment and order. 4. Learned Advocate for the appellant Mr. Shakeel A. Qureshi has submitted that the learned Judge has not considered the ocular as well as the medical evidence. It is further submitted that in the post mortem report no abrasions nor CLW was found on the person of the deceased. It is also submitted that some witnesses, i.e. Faridaben at Exhibit 55, Afzalbhai at Exhibit 56, Ruksanaben at Exhibit 57, Ismailbhai at Exhibit 59 and Yusufbhai at Exhibit 59 have turned hostile. It is further submitted that in the post mortem report no abrasions nor CLW was found on the person of the deceased. It is also submitted that some witnesses, i.e. Faridaben at Exhibit 55, Afzalbhai at Exhibit 56, Ruksanaben at Exhibit 57, Ismailbhai at Exhibit 59 and Yusufbhai at Exhibit 59 have turned hostile. Learned Advocate for the appellant has mainly relied on the evidence of the Doctor, i.e. Dr. Harshaben Shankarlal Patel at Exhibit 49 who conducted the post mortem of the deceased wherein it is opined that the cause of death of the deceased was on account of the injuries suffered by her and the death was after nearly 5 days of the date of incident. Considering the above, it is submitted that this is a fit case which requires the interference of this Court. 5. Learned Additional Public Prosecutor Mr. L.R. Pujari has submitted that the order of conviction recorded against the appellant accused is just and proper and he has supported the conviction recorded by impugned judgment. Learned Additional Public Prosecutor has contended that taking into consideration the medical evidence, evidence of the complainant, and other witnesses, the view taken by the Trial Court is just and proper and no interference is called for. It is further submitted that the learned trial Judge has not committed any error while imposing the sentence on the accused person and, therefore, no interference is called for in the present appeal. 6. We have heard learned Advocates for the parties and perused the records of the case including the medical evidence. The incident in question occurred on 22.03.2009 and the victim died on 26.03.2009. From the complaint, it is clear that due to the injuries received by her, the deceased was admitted in the hospital. From the evidence of medical officer, it is clear that the deceased died due to septic peritonitis. Therefore, it is clear that this injury is the reason for death of the deceased and this is an unnatural death. Now coming to the point whether it falls within 302, or 304, Part-II, taking into consideration the whole incident and the fact that the deceased died five days after the incident, leaves a room to come to the conclusion that this is not a case of offence under Section 302 of IPC. Now coming to the point whether it falls within 302, or 304, Part-II, taking into consideration the whole incident and the fact that the deceased died five days after the incident, leaves a room to come to the conclusion that this is not a case of offence under Section 302 of IPC. In view of the decision of the Honourable Apex Court in the case of B.N. Kavatakar and Another vs. State of Karnataka, 1994 Supp (1) SCC 304, it can be said that the learned trial Judge has committed an error while holding the accused guilty for offence under Section 302 of the Indian Penal Code. The main cause of death was reported to be septic peritonitis because of injuries. In B.N. Kavatakar (supra), 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 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." Similarly, in Ganga Dass @ Godha vs. 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. 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 septic peritonitis and in view of above decisions of the Honourable Apex Court, it can be said that the learned trial Judge has committed an error in convicting the accused for offence under Section 302 of the Indian Penal Code. Looking to the nature of the injury, it can be said that the accused is guilty of the offence under Section 304, Part II of the Indian Penal Code and not for the offence under Section 302 of the Indian Penal Code. Therefore, this Criminal Appeal is required to be allowed by holding the accused guilty for offence under Section 304, Part II of the Indian Penal Code and not for offence under Section 302 of the Indian Penal Code and sentence imposed upon her is required to be reduced to five years imprisonment. 8. The Appeal is partly allowed. The judgment and conviction of the appellant under challenge is modified and altered from Section 302 of the Indian Penal Code to one under Section 304 Part II of the Indian Penal Code and the appellant is sentenced to undergo rigorous imprisonment for five years instead of life imprisonment. The rest of the part of the judgment and order of conviction and sentence remains unaltered. The rest of the part of the judgment and order of conviction and sentence remains unaltered. The fine and in default punishment as imposed by the trial court is maintained. The period of sentence already undergone by the accused person be given set off. The accused shall surrender before the jail authorities within a period of twelve (12) weeks from today to serve the remaining period of sentence. Bail bond, if any, of the accused stands cancelled. Record and proceeding be sent to the concerned Trial Court forthwith.