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2016 DIGILAW 22 (GUJ)

Lakhabhai Nagabhai Parmar v. State of Gujarat

2016-01-06

K.S.JHAVERI, R.P.DHOLARIA

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JUDGMENT : K.S. Jhaveri, J. 1. Having been sentenced to life imprisonment for the offence under section 302 of Indian Penal Code by impugned judgement and order dated 12.12.2007 passed by the learned Additional Sessions Judge, 1st Court, Amreli - Camp at Rajula in Sessions Case No. 03 of 2005, the appellant, being aggrieved, is before this Court questioning the impugned judgment and order. 2. It is the case of the prosecution that on 05.09.2004 while the accused person was driving the Chhakda rickshaw and the deceased was coming from the opposite side in a Rajdoot motorbike and both the vehicles collided with each other. The deceased received injuries in the said accident and finally succumbed to the same. 2.1 Thereafter the offence was registered against the present appellant for the offences punishable u/s. 302 and 323 of Indian Penal Code. Investigation was carried out and chargesheet was submitted against the appellant. Thereafter, as the case was exclusively triable by the Sessions Court, the same was committed to the Sessions Court. 2.2 The trial was initiated against the appellant and during the course of trial the prosecution examined following witnesses: (i) P.W. 1 – Himatnhai Gobarbhai Ex. 12 (ii) P.W. 2 – Savitaben Babubhai Ex. 14 (iii) P.W. 3 – Batukbhai Rambhai Ex. 15 (iv) P.W. 4 – Himmatbhai Parmar Ex. 17 (v) P.W. 5 – Mukeshbhai Babubhai Ex. 19 (vi) P.W. 6 – Shambhubhai Babubhai Ex. 21 (vii) P.W. 7 – Gunvanbhai Ramani Ex. 22 (viii) P.W. 8 – Dipesh Joshi Ex. 23 (ix) P.W. 9 – Dr. Dahyalal Dadhani Ex. 24 (x) P.W. 10 – Bhupatbhai Savjibhai Ex. 28 (xi) P.W. 11 – Maganbhai Manjibhai Ex. 30 (xii) P.W. 12 – Jyotsanaben Kalubhai Ex. 31 (xiii) P.W. 13 – Tejalben Dhusabhai Ex. 32 (xiv) P.W. 14 – Devabhai Valabhai Ex. 34 (xv) P.W. 15 – Amrutbhai Desai Ex. 35 (xvi) P.W. 16 – Dhirubhai Jikulbhai Ex. 36 (xvii) P.W. 17 – Mohanbhai Korat Ex. 38 (xviii) P.W. 18 – Dipakbhai Pravinchandra Ex. 41 (xix) P.W. 19 – Sanjaybhai Rajyaguru Ex. 43 (xx) P.W. 20 – Vanrajsinh Gohil Ex. 45 (xxi) P.W. 21 – Gidharbhai Ravjibhai Ex. 50 (xxii) P.W. 22 – Ranjitsinh Jadeja Ex. 52 2.3 The prosecution also relied upon various documents such as arrest panchnama at Ex. 13, Complaint at Ex. 16, panchnama of scene of offence at Ex. 41 (xix) P.W. 19 – Sanjaybhai Rajyaguru Ex. 43 (xx) P.W. 20 – Vanrajsinh Gohil Ex. 45 (xxi) P.W. 21 – Gidharbhai Ravjibhai Ex. 50 (xxii) P.W. 22 – Ranjitsinh Jadeja Ex. 52 2.3 The prosecution also relied upon various documents such as arrest panchnama at Ex. 13, Complaint at Ex. 16, panchnama of scene of offence at Ex. 18, panchnama of seizure of motorcycle at Ex. 20, post mortem report at Ex. 25, case papers of deceased with x-ray plate at Ex. 27, inquest panchnama at Ex. 37, map of scene of offence at Ex. 40 etc. 2.4 At the end of trial, after recording the statement of the accused and hearing arguments on behalf of prosecution and the defence, the trial court convicted the appellant of the charges leveled against him by the impugned judgement and order. 2.5 Being aggrieved by and dissatisfied with the aforesaid judgement and order passed by the Sessions Court the appellant has preferred the present appeal. 3. Mr. Pravin Gondaliya, learned advocate appearing for the appellant contended that the trial court ought not to have convicted the accused for the offence punishable under section 302 of Indian Penal Code as it is not a case of murder but mere accident. He submitted that no FIR was lodged by the injured person or by brother of the injured person against the accused. He submitted that after about six days, a complaint came to be registered for offence punishable under Sections279, 304A & 337 of Indian Penal Code wherein chargesheet was filed for offence under section 302. He submitted that even no material or evidence had been collected by the prosecution to frame charge under Section 302 of Indian Penal Code. He submitted that considering the nature of injuries the case of the appellant would not fall under section 302 of Indian Penal Code and therefore the impugned judgement and order deserves to be quashed and set aside. 3.1 Mr. Gondaliya submitted that the deceased died after a period of five days. He submitted that considering the nature of injuries the case of the appellant would not fall under section 302 of Indian Penal Code and therefore the impugned judgement and order deserves to be quashed and set aside. 3.1 Mr. Gondaliya submitted that the deceased died after a period of five days. He submitted that the cause of death as per the post mortem report is septicemia and therefore if the first part of the arguments is not accepted by this Court, in the alternative, without prejudice to the submissions made hereinabove, considering the medical evidence and the fact that the deceased had survived for around five days after the incident, the Court may consider the case of the appellant under section 304 (Part II) of Indian Penal Code. 3.2 In support of his submissions, Mr. Gondaliya has relied upon the decisions of the Apex Court in the case of B.N. Kavatakar and Another v. State of Karnataka reported in 1994 Supp (1) SCC 304 and in the case of Maniben v. State of Gujarat reported in (2009) 8 SCC 796. 4. Mr. L.R. Poojari, learned APP, however, submitted that the trial court has given cogent reasons for sustaining the conviction under section 302 of Indian Penal Code and this court may not interfere in this appeal. It is submitted that the trial court has based the conviction not only on the evidence of the complainant but also considered entire circumstances of the case and the facts which are proved by cogent evidence. 5. We have gone through the records of the case. Looking to the evidence on record, it appears that the death of the deceased happened as a result of the accident which took place between the motorcycle which was being ridden by him and chakkada rickshaw which was being driven by accused. It is required to be noted that after the accident, the injured persons and the original driver of rickshaw namely Maganbhai waited at the place of incident till the time Shambhubhai came there and thereafter the injured was taken to hospital. It is borne out from the record that the eye witnesses as well as the original driver of rickshaw have stated in their evidence that the alleged incident was an accident and not a case of murder. 6. It is borne out from the record that the eye witnesses as well as the original driver of rickshaw have stated in their evidence that the alleged incident was an accident and not a case of murder. 6. P.W. 9 - Dahyalal Dadhani is the Medical Officer who conducted the autopsy of the dead body of deceased. This witness has opined that the cause of death of the deceased was Septicemia due to injury on vital organ lung and multiple fractures on account of injury. He has opined that had the medical complications not erupted, the injuries would have been treated. 7. We do not find any reason persuading enough to not hold the appellant guilty of death of the deceased as a result of the vehicular accident which involved the accused. The medical evidence also supports the case of the prosecution. Nevertheless, we do not find any strong motive or premeditation on the part of the appellant to hold him guilty of the offence under section 302 of Indian Penal Code. Moreover the deceased had survive for around five days after the incident and thereafter expired due to complications from the injuries. 8. In the case of the B.N. Kavatakar and another (supra), the Apex Court in a similar case of septicemia where the deceased therein had died in the hospital after five days of the occurrence of the incident in question, converted the conviction under section 302 to under section 326 and modified the sentence accordingly. 8.1 Similarly, in the case of Maniben (supra), the Apex Court has observed as under: "18. The deceased was admitted in the hospital with about 60% burn injuries and during the course of treatment developed septicemia, which was the main cause of death of the deceased. It is, therefore, established that during the aforesaid period of 8 days the injuries aggravated and worsened to the extent that it led to ripening of the injuries and the deceased died due to poisonous effect of the injuries. 19. It is established from the dying declaration of the deceased that she was living separately from her mother-in-law, the appellant herein, for many years and that on the day in question she had a quarrel with the appellant at her house. 19. It is established from the dying declaration of the deceased that she was living separately from her mother-in-law, the appellant herein, for many years and that on the day in question she had a quarrel with the appellant at her house. It is also clear from the evidence on record that immediately after the quarrel she along with her daughter came to fetch water and when she was returning, the appellant came and threw a burning tonsil on the clothes of the deceased. Since the deceased was wearing a terylene cloth at that relevant point of time, it aggravated the fire which caused the burn injuries. 20. There is also evidence on record to prove and establish that the action of the appellant to throw the burning tonsil was preceded by a quarrel between the deceased and the appellant. From the aforesaid evidence on record it cannot be said that the appellant had the intention that such action on her part would cause the death or such bodily injury to the deceased, which was sufficient in the ordinary course of nature to cause the death of the deceased. Therefore, in our considered opinion, the case cannot be said to be covered under clause (4) of Section 300 of IPC. We are, however, of the considered opinion that the case of the appellant is covered under Section 304 Part II of IPC." 8.2 In the present case, we have come to the irresistible conclusion that the accused is infact the perpetrator of the offence in question. However, the points which have also weighed with this court are that the death had occurred as a result of a vehicular accident and that the deceased had survived for five days in the hospital. The medical opinion points that the deceased could have recovered from the injuries had septicemia not occurred. Therefore, the entire burden of guilt cannot be saddled upon the appellant as far as the death of the deceased is concerned. In that view of the matter, we are of the opinion that the conviction of the appellant under section 302 of Indian Penal Code is required to be converted to that under section 304(II) of Indian Penal Code. 9. In the premises aforesaid, appeal is partly allowed. In that view of the matter, we are of the opinion that the conviction of the appellant under section 302 of Indian Penal Code is required to be converted to that under section 304(II) of Indian Penal Code. 9. In the premises aforesaid, appeal is partly allowed. The conviction of the appellant - original accused under Section 302of Indian Penal Code vide judgment and order dated 12.12.2007 arising from Sessions Case No. 03 of 2005 passed by the Additional Sessions Judge, 1st Court, Amreli - Camp at Rajula is altered to conviction under Section 304 (Part II) of Indian Penal Code. The appellant - original accused is ordered to undergo rigorous imprisonment for a period of five years under section 304 (Part II) of Indian Penal Code instead of life imprisonment as awarded by the trial court under section 302IPC. The amount of fine and sentence in default of fine is maintained. The judgement and order dated 12.12.2007 is modified accordingly. The period of sentence already undergone shall be considered for remission of sentence qua appellant - original accused. The appellant who is on bail is granted time of ten weeks from today to surrender before the jail authorities. Bail bond shall stand cancelled. R & P to be sent back to the trial court forthwith.