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2016 DIGILAW 88 (GUJ)

Mulchandbhai Hemabhai Bhangi v. State of Gujarat

2016-01-13

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 18.3.2002 passed by Additional Sessions Judge, Mehsana in Sessions Case No. 164 of 1997, whereby both the accused were held guilty for offence punishable under Section 302 read with Section 114 of the Indian Penal Code (for short, "IPC") and ordered to undergo imprisonment for life and to pay fine of Rs. 200/- and in default of payment of fine, accused were ordered to undergo simple imprisonment for five days. Feeling aggrieved by the impugned judgment, both the accused have 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 on 20.11.1995 at about 8.30 p.m. both the accused had come to the house of the deceased Shankarsinh, situated in Railway Quarter near Bhandu Railway Station. It is alleged that accused No. 1 demanded bidi which was not given by the deceased and, therefore, the quarrel had taken place. Therefore, accused No. 2 brought wooden block and gave it to accused No. 1, who assaulted the deceased with that wooden block. It is also alleged that even accused No. 2 had attacked the deceased with a stick. It is further the case of the prosecution that the deceased succumbed to the injuries sustained by him after six days of the incident and the complaint was given by the deceased himself on 22.11.1995 against the accused persons. 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 Dr.Kantilal Madhabhai Parmar. 15 2 Dr.Kantibhai Chaturvan Goswami. 18 3 Savitaben Somabhai. 22 4 Omprakash Hareshhlal Shah. 23 5 Hamirkhan Smarathkhan. 25 6 Dr.Rakesh Kantibhai Patel. 27 7 Jashodaben Shankarsinh. 29 8 Taraben Shankarsinh. 30 9 Kanubhai Babulal Rajput. 31 10 Sarasvatiben Laxmishankar. 35 11 Kodariben Bhimjibhai. 36 12 Sitaram Jankisinh. 37 13 Surajibhai Chhanabhai Baranda. 39 14 Rameshbhai Damodar Inamdar. 15 2 Dr.Kantibhai Chaturvan Goswami. 18 3 Savitaben Somabhai. 22 4 Omprakash Hareshhlal Shah. 23 5 Hamirkhan Smarathkhan. 25 6 Dr.Rakesh Kantibhai Patel. 27 7 Jashodaben Shankarsinh. 29 8 Taraben Shankarsinh. 30 9 Kanubhai Babulal Rajput. 31 10 Sarasvatiben Laxmishankar. 35 11 Kodariben Bhimjibhai. 36 12 Sitaram Jankisinh. 37 13 Surajibhai Chhanabhai Baranda. 39 14 Rameshbhai Damodar Inamdar. 47 2.4 The prosecution had also produced and relied upon following documentary evidence:- Sr. No. Description Exh. 1 Complaint. 48 2 Panchnama of physical condition of the complaint. 38 3 Yadi sent to Medical Officer. 49 4 Panchnama of the place of offence. 34 5 Panchnama of physical condition of accused no. 1 and recovery of muddamal wooden block. 26 6 Inquest panchnama. 32 7 Pastmortem report. 34 8 Panchnama of production of clothes of the deceased. 33 9 Injury certificate given by Dr. Rajesh K. Patel. 28 10 Muddamal dispatch note. 40 11 Receipt of muddamal being received. 41 12 Certificate of primary treatment given to complaint, Shankarsinh. 16 13 PM Note. 19 14 FSL report. 42, 43 2.5 At the end of trial, the Court below recorded further statements of accused persons 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 appeals are preferred before this Court. 3. Mr. K.J. Panchal, learned advocate for the appellants-original accused has taken us through the evidence and submitted that the prosecution has miserably failed to prove its case against the appellants. He also submitted that in view of the medical evidence it is clear that none of the doctors have opined that the injuries sustained by the deceased were not sufficient in ordinary course of nature to cause death 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 and they were not having any knowledge that their act would result into death of the deceased. He submitted that since there was no intention on the part of the accused or they were not knowing that their act will result into the death of the deceased, they could not have been convicted for offence under Section 302 of IPC. Mr. He submitted that since there was no intention on the part of the accused or they were not knowing that their act will result into the death of the deceased, they could not have been convicted for offence under Section 302 of IPC. Mr. Panchal has further contended that it has come on record that the incident took place on 20.11.1995 and the deceased died on 26.11.1995 i.e. 6 days after the incident and the cause of death as stated by the doctor is shock due to septic peritonitis. 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 Section304, Part-II of IPC. 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]. 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 appellants-accused persons 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 persons and, therefore, no interference is called for in the present appeal. 5. We have heard Mr. K.J. Panchal, learned advocate for the appellants-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 20.11.1995 and the victim died on 26.11.1995. 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 septic peritonitis. Therefore, it is clear that this injury is the reason for death of the deceased and this is unnatural death. 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 septic peritonitis. 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 six 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 relied upon by Mr. Panchal, 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 septic peritonitis 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 Section326 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." 6. Similarly, in Ganga Dass @ Godha v. State of Haryana [1994 Supp (1) SCC 534], the Honble Supreme Court in para-36 observed as under; "36. We find considerable force in this submission. 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 Honble 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 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 IPC. Looking to the nature of the injury, it can be said that the accused are 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 302 of IPC and sentence imposed upon them is required to be reduced to five years imprisonment. 8. For the foregoing reasons, this appeal is partly allowed. 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 302 of IPC and sentence imposed upon them is required to be reduced to five years imprisonment. 8. For the foregoing reasons, this appeal is partly allowed. The impugned judgment and order dated 18.3.2002 passed by Additional Sessions Judge, Mehsana in Sessions Case No. 164 of 1997 is modified and, instead of offence under Section302 of IPC, the accused are 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 persons be given set off to them. The accused persons 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.