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2016 DIGILAW 873 (GUJ)

Jagannath Senpadum Devare v. State of Gujarat

2016-04-22

BIREN VAISHNAV, K.S.JHAVERI

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JUDGMENT : K.S. Jhaveri, J. 1. By way of this Appeal, the Appellant accused has felt aggrieved by the judgment and order of conviction and sentence dated 04.06.2012 passed by the learned 4th (Ad-hoc) Additional Sessions Judge, Surat, in Sessions Case No. 202/2010 whereby the appellant accused was convicted for the offence punishable under Section 302 of the Indian Penal Code and was sentenced to undergo imprisonment for life. The accused was given set off for the period undergone in jail. 2. The case of the prosecution in brief is as under:-- "2.1. The deceased - Renukaben Sukhram was taken as the wife of the accused and was living in the chawl of Kadarbhai opposite GIPCL, Surat. It is alleged that the deceased insisted on going to her native village Dongar (Maharashtra) and hence, she was kicked on the live kerosene stove because of which she suffered burn injuries all over her body. The burn victim was rushed and admitted to Civil Hospital, Surat for treatment but she expired during the course of treatment on 03.04.2010. 2.2. Hence, a complaint in this regard was lodged with Mangrol Police Station as I-C.R. No. 20/2010 and the investigation commenced. At the end of the investigation, the chargesheet against the accused was led in the Court of the learned Judicial Magistrate First Class, who in turn, committed the case to the Sessions Court, it being Sessions triable. The trial Court framed the charge, to which the accused pleaded not guilty and claimed to be tried. 2.3. At the end of the investigation, the chargesheet against the accused was led in the Court of the learned Judicial Magistrate First Class, who in turn, committed the case to the Sessions Court, it being Sessions triable. The trial Court framed the charge, to which the accused pleaded not guilty and claimed to be tried. 2.3. At the time of the trial, the prosecution examined the following witnesses:-- Panch witness Shaikh Nazaruddin Gulab Shaikh 15 Panch witness Arvindbhai Mohanbhai Gamit 17 Panch witness Raisinhbhai Naginbhai Vasava 19 Shukaram Dokhraji Ubar 20 Purushottam Nathuram Patel 22 Dakshaben Mahendrakumar Solanki 25 Panch witness Ratilal Somabhai Gamit 28 Sarlaben Dhanraj Suryavanshi 29 Dhanraj Sadu Suryavanshi 30 Scientific Officer Nitinkumar Dayaram Patel 31 Chelkunvar Ranvirsinh 34 Motisinh Ramsinh Chauhan 36 Police Witness Chandubhai Bhimsinhbhai Desai 37 Police Witness Nashvantbhai Nanjibhai Vasava 41 Police Witness Nanabhai Jairambhai Birade 43 Police Witness Balvantbhaisaheb Anna Jamadar 45 The prosecution also relied upon various documentary evidence, some of them are:-- Certificate of cause of death 8 Office copy of the yadi written by the PSI, Olpad to Forensic Medicine Hospital, Surat 10 Post Mortem Form 11 Report of the Pathology Department 13 Post Mortem Note 14 Panchnama of the scene of offence 16 Panchnama of arrest of the accused 18 Complaint 21 Carbon copy of the Dying Declaration 24 Original letter written for taking the dying declaration taken once again 27 Report of the visit to the scene of offence 32 Office copy of the letter written by the Scientific Officer 33 Photocopy of the Station Dairy 39 Request of the deceased made in front of the PSI, Olpad 42 Report of the FSL 45 Photocopy of the Janva Jog Entry 46 Missing person advertisement in respect of the deceased 47 Office copy of the letter written by mangrol Police Station requesting for help 48 Office copy of the letter written to the medical Officer for taking the request of the deceased 49 Request of the deceased 50 2.4. At the end of the trial, further statement of the accused under Section 313 of the Code of Criminal Procedure was recorded in which the accused pleaded not guilty and stated that he has been falsely implicated in the offence. Thus, after recording the further statement of the accused and hearing the arguments of both the sides, the learned Additional Sessions Judge passed the above judgment and order. Thus, after recording the further statement of the accused and hearing the arguments of both the sides, the learned Additional Sessions Judge passed the above judgment and order. Being aggrieved by the same, the present appeal has been filed, as aforesaid." 3. Learned Advocate for the appellant accused Mr. Gajendra P. Baghel has argued qua the sentence of the accused in view of the two dying declarations recorded. It is further submitted that there was no motive on part of the accused to commit the crime and the accused may be granted the benefit of the decision rendered in the case of B.N. Kavatakar and another v. State of Karnataka [1994 Supp (1) SCC 304] and the sentence of the accused be converted from Section 302 of the Indian Penal Code to Section 304 Part II of the Indian Penal Code. 4. Learned Additional Public Prosecutor Mr. Pranav Trivedi 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. 5. We have heard learned Advocates for the parties and perused the records of the case including the medical evidence. 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 Section 302 of the Indian Penal Code or Section 304 Part II of the Indian Penal Code, taking into consideration the whole incident and the fact that the deceased died days after the incident, leaves no room but to arrive at a conclusion that this is not a case of offence under Section 302 of the Indian Penal Code. In view of the decision of the Honourable Apex Court in the case of B.N. Kavatakar (supra), 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 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. 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." 6. In view of above discussion, it is clear that the victim died due to septic peritonitis and in light 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 him is required to be reduced to five years imprisonment. 7. The Appeal is partly allowed. The judgment and conviction of the appellant dated 04.06.2012, passed by the learned 4th (Ad-Hoc) Additional Sessions Judge, Surat in Sessions Case No. 202/2010 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 accused 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 fine and in default punishment as imposed by the trial court is maintained. The period of sentence already undergone shall be considered for remission and set off as the case may be, in accordance with law. Record and proceedings be sent to the concerned Trial Court forthwith.