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2016 DIGILAW 295 (GUJ)

Sajanbhai Samatbhai Mer v. State of Gujarat

2016-02-08

K.S.JHAVERI, R.P.DHOLARIA

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JUDGMENT : K.S. Jhaveri, J. 1. This appeal is preferred against the judgment and order dated 19.11.2007 passed by learned Additional Sessions Judge, Fast Track Court No. 6, Bhavnagar, in Sessions Case No. 76 of 2006, whereby the accused was held guilty for offence punishable under Section 302 of the Indian Penal Code (for short, "IPC") and ordered to undergo imprisonment for life and to pay fine of Rs. 5,000/- and, in default of payment of fine, accused was ordered to undergo simple rigorous imprisonment for one year. Feeling aggrieved by the impugned judgment, the accused has preferred present appeal before this Court. 2. The facts in brief giving rise to the filing of present appeal are as under:-- 2.1 It is the case of the prosecution that the accused was having love affair with the complainant. It is alleged that the complainant was the kept of the accused and by keeping in a separate house, he was having sexual relation with her. On 27.12.2005, between 19 to 20 hours, the accused went to the house of the complainant in drunken condition and asked her to remove her clothes. To that the complainant replied the children are there, upon which the accused got angry and assaulted the complainant. Thereafter, the accused brought kerosene from the kitchen and poured it on her and set her ablaze. Therefore, the complainant was admitted in the hospital where she died during treatment on 1.1.2006. With these allegations, the complaint was filed against the accused. 2.2 On complaint being filed, investigation was carried out and the accused came to be arrested. At the end of investigation, charge-sheet was filed against the accused before the Magistrate Court. Since the offence was exclusively triable by the Court of sessions, the case was committed to Sessions Court and, ultimately, trial was initiated and charge came to be framed. The accused pleaded not guilty and claimed to be tried. 2.3 During the trial, the prosecution had examined following witnesses:-- Sr. No. Name Exh. 1 Ashokbhai Madhabhai Boriya. 15 2 Gobarbhai Lalijibhai Namcha. 17 3 Gopidas Kailasdas Kasturi. 18 4 Rajubhia Kailasdas. 20 5 Niruben Somnathbhai Rathod. 21 6 Kamuben Zaverbhai. 22 7 Zaverbhai Kanabhai Chauhan. 23 8 Rajesh Keshavlal Siddhpura. 24 9 Manharba Jorubha Jadeja. 25 10 Dr. Kirtiben Rajeshbhai Gajjar. 26 11 Arunbahi Dalichandbhai Ganchi. 29 12 Ambalal Laljibhai Haripara. 32 13 Arjundev Kaluram Padal, PSO. 15 2 Gobarbhai Lalijibhai Namcha. 17 3 Gopidas Kailasdas Kasturi. 18 4 Rajubhia Kailasdas. 20 5 Niruben Somnathbhai Rathod. 21 6 Kamuben Zaverbhai. 22 7 Zaverbhai Kanabhai Chauhan. 23 8 Rajesh Keshavlal Siddhpura. 24 9 Manharba Jorubha Jadeja. 25 10 Dr. Kirtiben Rajeshbhai Gajjar. 26 11 Arunbahi Dalichandbhai Ganchi. 29 12 Ambalal Laljibhai Haripara. 32 13 Arjundev Kaluram Padal, PSO. 34 14 Dr. Vijay Chatrabhuj Ramdevputram. 36 15 Bhojrajsinh Balubha Zala. 37 16 Rambhai Varabhai Der, IO. 41 17 Sukhdevsinh Keshubha Zala, IO. 43 2.4 The prosecution had also produced and relied upon following documentary evidence:-- Sr. No. Description Exh. 1 Panchanama of hair of the complainant. 10 2 Arrest panchnama. 11 3 Yadi for inquest panchnama. 12 4 Inquest panchnama. 13 5 Postmortem form. 14 6 Panchnama of place of offence. 16 7 Panchnama of seizing the clothes of the accused. 19 8 Yadi for postmortem. 27 9 PM report. 28 10 Yadi for recording dying declaration. 30 11 Postmortem report. 31 12 Yadi for investigation to PSI, Haripara. 33 13 Original complaint of the deceased. 38 14 Yadi of PSO. 39 15 Yadi to PSI, Zala. 40 16 Yadi for addition of section. 42 17 Yadi for sending muddamal. 44 18 FSL receipt. 45 19 FSL receipt. 46 20 Analysis report of FSL. 47 21 Serological report by FSL. 48 22 Report of FSL, Bhavnagar. 49 23 Fax message to higher officer. 50 24 Report regarding serious offence. 51 25 Yadi for taking hair sample. 52 26 Yadi for preparing map of the place of offence. 53 27 Yadi for taking blood of the accused. 54 28 Yadi for treatment of the accused. 55 29 Medical certificate of the complainant 56 2.5 At the end of trial, the Court below recorded further statement of accused under Section 313 of Cr.P.C. and thereafter, passed the impugned judgment and order awarding the sentence, as aforesaid. Being aggrieved and dissatisfied with the impugned judgment of the trial Court, present appeal is preferred before this Court. 3. Mr. A.D. Shah, learned Senior Advocate for the appellant-original accused has taken us through the evidence and submitted that the prosecution has miserably failed to prove its case against the appellant. Being aggrieved and dissatisfied with the impugned judgment of the trial Court, present appeal is preferred before this Court. 3. Mr. A.D. Shah, learned Senior Advocate for the appellant-original accused has taken us through the evidence and submitted that the prosecution has miserably failed to prove its case against the appellant. He also submitted that the complainant had made a statement before the Medical officer on 27.12.2005 at 11 p.m. that she received burn injuries while cooking and it was an accident and, therefore, the accused could not have been convicted for offence under Section 302 of IPC. He further contended that this is an accident and there was no motive on the part of the accused to commit murder. He further contended that it has come on record that the incident took place on 27.12.2005 and the deceased died on 1.1.2006 i.e. 5 days after the incident and the cause of death as stated by the doctor is septicemia and shock due to extensive burns. He, therefore, submitted that the learned trial Judge has committed an error in convicting the accused for offence under Section 302 of IPC and, at the most, the accused could be held guilty for offence punishable under Section 304, Part-II of IPC. In support of his submission, he has relied upon the decision of the Honorable Apex Court in Maniben v. State of Gujarat [ AIR 2010 SC 1261 ]. In view of these, he prayed that this appeal may be allowed. 4. On the other hand, Ms. C.M. Shah, learned APP appearing for the State has submitted that the order of conviction recorded against the appellant-accused is just and proper and she has supported the conviction recorded by impugned judgment. Learned APP 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. She also submitted that the learned trial Judge has not committed any error while imposing the sentence on the accused and, therefore, no interference is called for in the present appeal. 5. We have heard Mr. A.D. Shah, learned Senior Advocate for the appellant-original accused and Ms. C.M. Shah, learned APP for the State. We have also gone through the evidence on record. We have also perused the medical evidence. 5. We have heard Mr. A.D. Shah, learned Senior Advocate for the appellant-original accused and Ms. C.M. Shah, learned APP for the State. We have also gone through the evidence on record. We have also perused the medical evidence. The incident in question occurred on 27.12.2005 and the victim died on 1.1.2006. 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 septicemia. Therefore, it is clear that this injury is the reason for death of the deceased and this is 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. In view of the decision of the Honorable Apex Court relied upon by Mr. A.D. Shah, it can be said that the learned trial Judge has committed an error while holding the accused guilty for offence under Section 302 of IPC. The main cause of death was reported to be septicemia because of burn injuries. In Maniben v. State of Gujarat [ AIR 2010 SC 1261 ], the Honorable Apex Court observed as under:-- "13. The post-mortem report of the deceased was placed on record during the trial and Dr. Tarlikaben, who conducted the post-mortem examination was also examined as a witness in the trial. The said documentary and oral evidence of the doctor, as adduced, that he also treated the patient and conducted the post-mortem examination made it crystal clear that the deceased remained under treatment in hospital for 8 days and died after 8 days of the incident in question. 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. 14. 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. 14. 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. 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. 15. We find that the view taken by the trial court was a cogent and plausible view and, therefore, we hold that the conviction and sentence imposed by the trial court is justified. Considering the totality of the circumstances and the fact that the appellant is of 85 years of age and had undergone the sentence imposed by the trial court under the provisions of Section 304, Part II of IPC, we set aside the conviction and sentence of the appellant imposed by the High Court of Gujarat and restore the judgment and order passed by the trial court. Since the appellant has already undergone the sentence imposed by the trial court she shall not be re-arrested unless required in connection with any other case. Bail bonds shall stand discharged. Since the appellant has already undergone the sentence imposed by the trial court she shall not be re-arrested unless required in connection with any other case. Bail bonds shall stand discharged. This shall not be the precedent for other cases." 6. In view of above discussion, it is clear that the victim died due to septicemia and in view of above decision of the Honorable 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 IPC. Looking to the nature of the injury, it can be said that the accused is guilty of offence under Section 304, Part II of IPC and not for the offence under Section 302 of IPC. Therefore, this Criminal Appeal is required to be allowed by holding the accused guilty for offence under Section 304, Part II of IPC and not for offence under Section 302of IPC and sentence imposed upon him is required to be reduced to five years imprisonment. 7. For the foregoing reason, this appeal is partly allowed. The impugned judgment and order dated 19.11.2007 passed by learned Additional Sessions Judge, Fast Track Court No. 6, Bhavnagar, in Sessions Case No. 76 of 2006 is modified and, instead of offence under Section 302 of IPC, the accused is held guilty for the offence punishable under Section 304, Part-II of IPC and ordered to undergo rigorous imprisonment for a period of five years. Remaining part of the impugned judgment shall remain unaltered. The period of sentence already undergone by the accused be given set off to him. If the accused has not undergone five years' imprisonment, he shall surrender before the jail authorities within a period of twelve weeks from today to serve the remaining period of sentence. Bail bond, if any, stands cancelled. Record and Proceedings, if lying here, be sent back to the concerned trial Court forthwith.