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2016 DIGILAW 918 (GUJ)

Iqbalminya Umarminya Bahelim v. State of Gujarat

2016-04-28

BIREN VAISHNAV, K.S.JHAVERI

body2016
JUDGMENT : K.S. Jhaveri, J. 1. Having been sentenced to life imprisonment for the offence under section 302 of Indian Penal Code and rigorous imprisonment for two years and fine of Rs. 1000/- in default further simple imprisonment for fifteen days under Section 498(A) of Indian Penal Code by impugned judgment and order dated 19.10.2010 passed by the learned Sessions Judge, Principal Court, Gandhinagar in Sessions Case No. 42 of 2010, the appellant, being aggrieved, is before this Court questioning the impugned judgment and order. 2. It is the case of the prosecution that the accused who is the husband of deceased used to doubt the character of the deceased and therefore he used to frequently quarrel with her and physically and mentally torture her. It is the case of the prosecution that on 19.03.2010 while the deceased was cooking, the accused came there and started quarrelling with her and thereafter poured kerosene on her and pushed her face into a hearth used for cooking (chullah) and therefore she sustained burns on her face and all over her body. She started screaming and therefore the neighbours who reached there took her in 108 mobile ambulance van to hospital. She however succumbed to her injuries on 25.03.2010. 2.1 Thereafter the offence was registered against the present appellant for the offences punishable u/s.302 & 498(A) of Indian Penal Code. Investigation was carried out and charge-sheet 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 Trial was initiated against the accused and during the course of trial the prosecution examined the following witnesses whose evidences were read before us by learned advocates for both the sides: P.W. No. Name of Witness Exhibit No. 1 Dr. Manish Gandhi 8 2 Dr. 2.2 Trial was initiated against the accused and during the course of trial the prosecution examined the following witnesses whose evidences were read before us by learned advocates for both the sides: P.W. No. Name of Witness Exhibit No. 1 Dr. Manish Gandhi 8 2 Dr. Jitesh Barot 11 3 Pankajbhai Luhana 14 4 Zareefkhan Pathan 17 5 Prabhudas Chaudhary 19 6 Subamiya Bahelim 23 7 Misrikhan Bahelim 24 8 Ranjitsinh Vaghela 26 9 Aminabibi Bahelim 28 10 Mustafamiya Bahelim 29 11 Yusufmiya Bahelim 30 12 Jahanara Shaikh 35 13 Shabanaba Bahelim 36 14 Rashimbanu Pathan 37 15 Dilasaben Bahelim 38 16 Mumtazben Bahelim 39 17 Zubedabibi Shaikh 41 18 Mohammad Asif Bahelim 42 19 Ishvarbhai Baranda 43 20 Muljibhai Solanki 47 21 Vikramsinh Vaghela 50 22 Vinodkumar Yadav 51 2.3 The prosecution has also relied upon certain documentary evidence such as telephone vardhi at Ex. 45, complaint at Ex. 47, dying declaration at Ex. 16, FSL mobile report at Ex. 52, Panchnama of scene of offence at Ex. 18, body condition of accused at Ex. 20, inquest panchnama at Ex. 27, post mortem report at Ex. 9, analysis report at Ex. 54, dispatch note at Ex. 53 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 judgment and order. Being aggrieved by and dissatisfied with the aforesaid judgment and order passed by the Sessions Court the appellant has preferred the present appeal. 3. Ms. Nisha Parikh, 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. She submitted that majority of witnesses have turned hostile and taking into consideration the evidence on record the prosecution has miserably failed to prove the case against the accused beyond reasonable doubt. 3.1 Ms. Parikh submitted that the deceased died after a period of six days. She submitted that majority of witnesses have turned hostile and taking into consideration the evidence on record the prosecution has miserably failed to prove the case against the accused beyond reasonable doubt. 3.1 Ms. Parikh submitted that the deceased died after a period of six 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 six days after the incident, the Court may consider the case of the appellant under section 304 (Part II) of Indian Penal Code. In support of her submissions, Ms. Parikh has relied upon the decisions of the Apex Court in the case of Maniben v. State of Gujarat reported in (2009) 8 SCC 796. 4. Mr. Pranav Trivedi, 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 judgment and order passed by the trial court. We have also perused the oral as well as documentary evidence led by the trial court and also considered the submissions made by learned Advocate for the appellant and the State. The main question that falls for our determination in this appeal is as to whether the accused could have been convicted for the offence of murder punishable under Section 302 IPC. 6. In the complaint given by the deceased she has stated that there had been frequent quarrels between her and the accused and that he used to suspect her character. She has stated that on the date of incident, at around 10.00 am while she was heating water on the hearth for taking bath, her husband who was the only one present in the house started quarreling with her doubting her character. She has stated that on the date of incident, at around 10.00 am while she was heating water on the hearth for taking bath, her husband who was the only one present in the house started quarreling with her doubting her character. She has stated that he picked a can of kerosene in which there was around five liters of kerosene and poured it over her and thereafter he caught hold of her hair and pushed her face into the burning hearth and thereby her body caught fire. The accused ran away from the scene of offence. Thereafter, she started shouting for help. It is further stated by the deceased in her complaint that the neighbours gathered there and tried to extinguish the fire and that she was later on brought to hospital for treatment. 7. In the dying declaration recorded by the Executive Magistrate, the deceased has while was heating water for taking bath, the accused came from behind and poured kerosene on her and thereafter pushed her into the hearth. She has stated that the accused used to harass her often and used to torture her and did not do any job. 7.1 In the case of Gopal v. State of Madhya Pradesh reported in (2009) 12 SCC 600 , the Apex Court in para 13 has observed as under: "13. Law relating to appreciation of evidence in the form of more than one dying declaration is well settled. Accordingly, it is not the plurality of the dying declarations but the reliability thereof that adds weight to the prosecution case. If a dying declaration is found to be voluntary, reliable and made in fit mental condition, it can be relied upon without any corroboration. The statement should be consistent throughout. If the deceased had several opportunities of making such dying declarations, that is to say, if there is more than one dying declaration they should be consistent. However, if some inconsistencies are noticed between one dying declaration and the other, the court has to examine the nature of the inconsistencies, namely, whether they are material or not. If the deceased had several opportunities of making such dying declarations, that is to say, if there is more than one dying declaration they should be consistent. However, if some inconsistencies are noticed between one dying declaration and the other, the court has to examine the nature of the inconsistencies, namely, whether they are material or not. While scrutinising the contents of various dying declarations, in such a situation, the court has to examine the same in the light of the various surrounding facts and circumstances." 7.2 In the case of Shudhakar v. State of Madhya Pradesh reported in (2012) 7 SCC 569 , the Apex Court has held that a "dying declaration" is the last statement made by a person at a stage when he is in serious apprehension of his death and expects no chances of his survival. At such time, it is expected that a person will speak the truth and only the truth and that normally in such situations, courts attach intrinsic value of truthfulness to such statement. It is also held that once such statement has been made voluntarily, it is reliable and is not an attempt by deceased to cover up truth or falsely implicate a person, then courts can safely rely on such dying declaration and it can form the basis of conviction, more so where version given by other prosecution evidence, there is no reason for courts to doubt truthfulness of such dying declaration. 8. As far as the veracity of the dying declaration before the Executive Magistrate is concerned, it is required to be noted that the Executive Magistrate - P.W. 3 - Pankajbhai Luhana in his deposition vide Ex. 14 has stated that he had seen the opinion of the doctor as to fitness of the deceased on the yadi sent to him by Mansa Police Station for recording dying declaration and that the doctor had stated that the deceased was conscious. He stated that he went to the room where the deceased was being treated and verified the consciousness and fitness of the deceased to record the statement. He has supported the averments made by the deceased in the dying declaration. P.W. 3 has stated that he took the left hand thumb impression of the deceased after recording the dying declaration. He stated that he went to the room where the deceased was being treated and verified the consciousness and fitness of the deceased to record the statement. He has supported the averments made by the deceased in the dying declaration. P.W. 3 has stated that he took the left hand thumb impression of the deceased after recording the dying declaration. He has categorically stated that the victim was conscious and oriented enough to give her dying declaration as certified by the doctor. 8.1 In the present case, when the Executive Magistrate recorded the dying declaration pursuant to the Vardhi received by him after opinion from the doctor, this Court finds no reason to disbelieve her more particularly when he has no axe to grind against the accused and being a public officer we find no reason as to why he will implicate a person falsely. The yadi at Ex. 15 mentions the endorsement by the Medical Officer that the deceased is conscious and able to give D.D which was made at around 04.42 pm on 19.03.2010. The recording of dying declaration was started by the Executive Magistrate at 06.35 pm on 19.03.2010. 8.2 It shall not be out of place to mention that the courts have to be on guard to see that the dying declaration is not the result of either tutoring or prompting or a product of imagination and that due care and caution must be exercised in considering weight to be given to the dying declaration. 8.3 In this regard, the Apex Court in the case of Kamalavva and another v. State of Karnataka reported in (2009) 13 SCC 614 has held as under: "18. In the aforesaid decision this Court while referring to the decision of the Constitution Bench in Laxman case reiterated that there is no requirement of law that the dying declaration must necessarily contain a certification by the doctor that the patient was in a fit state of mind specially when the dying declaration was recorded by a Magistrate. It was also held in the said decision that it is the testimony of the Magistrate that the declarant was fit to make statement gains the importance and reliance can be placed upon declaration even in the absence of the doctor's certificate provided the court ultimately holds the same to be voluntary and truthful. 19. It was also held in the said decision that it is the testimony of the Magistrate that the declarant was fit to make statement gains the importance and reliance can be placed upon declaration even in the absence of the doctor's certificate provided the court ultimately holds the same to be voluntary and truthful. 19. In the backdrop of the aforesaid legal principles laid down by this Court, we will now examine the admissibility of the dying declaration in the case in hand. 20. PW-17 (Tahsildar) has stated that he was asked by the police to record the dying declaration of the deceased Shoba who was undergoing treatment in the hospital. He proceeded to the hospital and recorded the statement in the presence of Dr. M.S. Sangolli (PW-18) which was marked as Ext. P.17. The aforesaid statement was recorded in the form of questions and answers. From the nature of the answers the deceased has given, it cannot be said that she has not understood the questions and has not given proper answers. Therefore, it is not difficult to conclude that the mental capacity of the deceased was sound and she was capable of giving answers to the questions put forth by PW-17. The aforesaid dying declaration was recorded by PW-17 in the presence of PW-18 who is a doctor attached to the same hospital. He has categorically stated in his evidence that the doctor had given the certificate to the effect that the injured was in a position to give the declaration. P.W. 18 also signed Ext. P. 17 (Dying Declaration). The thumb impression of the deceased Shoba was also taken on Ext. P.17. The doctor (PW-18) who was present at the time of recording the dying declaration has also attached a certificate to the effect that the said dying declaration was recorded in his presence. 21. P.W. 18 also signed Ext. P. 17 (Dying Declaration). The thumb impression of the deceased Shoba was also taken on Ext. P.17. The doctor (PW-18) who was present at the time of recording the dying declaration has also attached a certificate to the effect that the said dying declaration was recorded in his presence. 21. In view of the aforesaid clear and unambiguous factual position we are of the considered opinion that the High Court was totally justified in relying upon the dying declaration recorded by the Taluka Executive Magistrate (PW-17) The technical objection raised by the counsel for the appellant regarding the unavailability of doctor's certification and endorsement as to mental fitness of the deceased, is liable to be rejected in as much as the same has been held by this Court in numerous decisions as a mere rule of prudence and not the ultimate test as to whether or not the said dying declaration was truthful or voluntary. 22. PW-17, who recorded the dying declaration had in his deposition categorically stated that the deceased while making the aforesaid statement was conscious and in a fit mental condition to make such a statement. PW- 17 being a Public Officer, we find no reason as to why he will implicate a person falsely. Accordingly, the aforesaid dying declaration could be relied upon as the same was truthfully recorded and the said statement gave a vivid account of the manner in which the incident had taken place. The same also corroborates in all respect with the statement given by the deceased to the police on 10.04.1995. The said statement was also recorded by the police officer of the rank of ASI and the deceased also put her LTI in it. In our considered opinion, the dying declaration is reliable and trustworthy and gives an accurate version of the manner in which the incident had taken place." (Emphasis Supplied) 8.4 Considering the aforesaid discussion, more particularly the dying declaration recorded before the Executive Magistrate and the complaint, the role of the appellant is clearly enunciated by the deceased. Even otherwise, looking to the facts and circumstances of the case it cannot be said that the death was not homicidal. We have gone through the records of the case. Looking to the evidence on record, more particularly the ocular evidence of the witnesses, complaint at Ex. 48, dying declaration at Ex. Even otherwise, looking to the facts and circumstances of the case it cannot be said that the death was not homicidal. We have gone through the records of the case. Looking to the evidence on record, more particularly the ocular evidence of the witnesses, complaint at Ex. 48, dying declaration at Ex. 16, inquest panchnama at Ex. 27, injury certificate at Ex. 12, it is borne out that the deceased died due to the burns sustained by her as a result of the act of appellant. 9. P.W. 1 - Dr. Manish Gandhi 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 cardio respiratory failure due to septicemia due to burns over body. He has opined that the deceased had died an unnatural death and that if the face of any person is pushed into a burning heath after pouring kerosene, the injuries sustained by the deceased could be possible. 9.1 The post mortem report gives the details of the injuries on the body of the deceased and the same reads as under: "17. 2nd and 3rd degree burns 70% burns Burns areas are face, ears, neck, chest & abdomen & rt. Thigh anteriorly back of rt. Thigh & leg. Scattered area on lt. Thigh & rt. Anterior (1) both upper limb where whitish yellowish pursuant discharge & peeling of skin & Area of infection at burns side." 10. Considering the nature of injuries it is borne out that the deceased had sustained majority of burns on the back portion of her body as well as legs and on the face. This corroborates the say of the deceased that the appellant came from behind and poured kerosene on her. The panchnama of scene of offence also supports the case of the prosecution. In the present case, we do not find any doubt in the nature of the dying declaration recorded. The same is also corroborated by the panchnama and other evidence on record. 10.1 In the case of Panneerselvam v. State of Tamil Nadu reported in (2008) 17 SCC 190, the Apex Court has observed as under: "7. This is a case where the basis of conviction of the accused is the dying declaration. The same is also corroborated by the panchnama and other evidence on record. 10.1 In the case of Panneerselvam v. State of Tamil Nadu reported in (2008) 17 SCC 190, the Apex Court has observed as under: "7. This is a case where the basis of conviction of the accused is the dying declaration. The situation in which a person is on his deathbed, being exceedingly solemn, serene and grave, is the reason in law to accept the veracity of his statement. It is for this reason that the requirements of oath and cross-examination are dispensed with. Besides should the dying declaration be excluded it will result in miscarriage of justice because the victim being generally the only eye-witness in a serious crime, the exclusion of the statement would leave the Court without a scrap of evidence. 8. Though a dying declaration is entitled to great weight, it is worthwhile to note that the accused has no power of cross- examination. Such a power is essential for eliciting the truth as an obligation of oath could be. This is the reason the Court also insists that the dying declaration should be of such nature as to inspire full confidence of the Court in its correctness. The Court has to be on guard that the statement of the deceased was not as a result of either tutoring or prompting or a product of imagination. The Court must be further satisfied that the deceased was in a fit state of mind after a clear opportunity to observe and identify the assailant. Once the Court is satisfied that the declaration was true and voluntary, undoubtedly, it can base its conviction without any further corroboration. It cannot be laid down as an absolute rule of law that the dying declaration cannot form the sole basis of conviction unless it is corroborated. The rule requiring corroboration is merely a rule of prudence." 10.2 On the other hand, in the case of Ongole Ravikanth v. State of Andhra Pradesh reported in (2009) 13 SCC 647 , the Apex Court has held as under: "28. It is well settled and needs no restatement at our hands that dying declaration can form the sole basis for conviction. It is well settled and needs no restatement at our hands that dying declaration can form the sole basis for conviction. But at the same time due care and caution must be exercised in considering weight to be given to dying declaration inasmuch as there could be any number of circumstances which may affect the truth. 29. It has been repeatedly held by this Court that the courts have always to be on guard to see that the dying declaration was not the result of either tutoring or prompting or a product of imagination. It is the duty of the courts to find that the deceased was in a fit state of mind to make the dying declaration. In order to satisfy itself that the deceased was in a fit mental condition to make the dying declaration, the courts have to look for the medical opinion. [See: Smt. Paniben v. State of Gujarat (1992)2 SCC 474 , K. Ramachandra Reddy and Anr. v. The Public Prosecutor (1976) 3 SCC 618 , Darshan Singh @ Bhasuri & Ors. v. State of Punjab (1983) 2 SCC 411 , Kanchy Komuramma v. State of A.P. (1995) Supp. 4 SCC 118, Maniram v. State of M.P. (1994) Supp. 2 SCC 539, Laxman v. State of Maharashtra (2002) 6 SCC 710 & Nallapati Sivaiah v. Sub-Divisional Officer, Guntur, A.P. AIR 2008 SC 19 ]." 10.3 In the case of M. Sarvana Alias K.D. Sarvana v. State of Karnataka reported in (2012) 7 SCC 636 , the Apex Court has held in para 16 as under: "16. In Laxman v. State of Maharashtra (2002)6 SCC 710 , the Court while dealing with the argument that the dying declaration must be recorded by a magistrate and the certificate of fitness was an essential feature, made the following observations. The court answered both these questions as follows: "3. The juristic theory regarding acceptability of a dying declaration is that such declaration is made in extremity, when the party is at the point of death and when every hope of this world is gone, when every motive to falsehood is silenced, and the man is induced by the most powerful consideration to speak only the truth. Notwithstanding the same, great caution must be exercised in considering the weight to be given to this species of evidence on account of the existence of many circumstances which may affect their truth. Notwithstanding the same, great caution must be exercised in considering the weight to be given to this species of evidence on account of the existence of many circumstances which may affect their truth. The situation in which a man is on the deathbed is so solemn and serene, is the reason in law to accept the veracity of his statement. It is for this reason the requirements of oath and cross-examination are dispensed with. Since the accused has no power of cross-examination, the courts insist that the dying declaration should be of such a nature as to inspire full confidence of the court in its truthfulness and correctness. The court, however, has always to be on guard to see that the statement of the deceased was not as a result of either tutoring or prompting or a product of imagination. The court also must further decide that the deceased was in a fit state of mind and had the opportunity to observe and identify the assailant. Normally, therefore, the court in order to satisfy whether the deceased was in a fit mental condition to make the dying declaration looks up to the medical opinion. But where the eyewitnesses state that the deceased was in a fit and conscious state to make the declaration, the medical opinion will not prevail, nor can it be said that since there is no certification of the doctor as to the fitness of the mind of the declarant, the dying declaration is not acceptable. A dying declaration can be oral or in writing and any adequate method of communication whether by words or by signs or otherwise will suffice provided the indication is positive and definite. In most cases, however, such statements are made orally before death ensues and is reduced to writing by someone like a Magistrate or a doctor or a police officer. When it is recorded, no oath is necessary nor is the presence of a Magistrate absolutely necessary, although to assure authenticity it is usual to call a Magistrate, if available for recording the statement of a man about to die. There is no requirement of law that a dying declaration must necessarily be made to a Magistrate and when such statement is recorded by a Magistrate there is no specified statutory form for such recording. There is no requirement of law that a dying declaration must necessarily be made to a Magistrate and when such statement is recorded by a Magistrate there is no specified statutory form for such recording. Consequently, what evidential value or weight has to be attached to such statement necessarily depends on the facts and circumstances of each particular case. What is essentially required is that the person who records a dying declaration must be satisfied that the deceased was in a fit state of mind. Where it is proved by the testimony of the Magistrate that the declarant was fit to make the statement even without examination by the doctor the declaration can be acted upon provided the court ultimately holds the same to be voluntary and truthful. A certification by the doctor is essentially a rule of caution and therefore the voluntary and truthful nature of the declaration can be established otherwise." In that view of the matter, it is clear that the dying declaration being voluntary and made in a fit state cannot be discarded. 11. The evidence of witnesses more particularly P.W. 17 - Zubedabibi Shaikh and P.W. 18 - Mohamamad Asif Belim who happen to be the mother and son of the deceased respectively corroborate the versions of the deceased in the complaint and the dying declaration. The fact that the accused set the deceased ablaze is unanimously stated by the witnesses. 11.1 It goes without saying that love of a child for a parent is far beyond explanation. A son aged 18 years under no circumstances can be imagined to falsely implicate some one and that too his father. No motive surfaces from the facts and circumstances of the case which establishes that the son has falsely deposed against his own father. In fact he has clearly stated that he was informed by his mother in the hospital that his father - appellant had set her ablaze. The versions of the witnesses is also supported by the medical evidence which cannot be lost sight of. We are of the opinion that this is clearly a case of culpable homicide amounting to murder. 12. The versions of the witnesses is also supported by the medical evidence which cannot be lost sight of. We are of the opinion that this is clearly a case of culpable homicide amounting to murder. 12. Considering the contents of dying declaration, the evidence of Executive Magistrate, evidence of witnesses and other corroborating documentary evidence such as panchnama of scene of offence, inquest panchnama we are of the opinion that the fact that the deceased died a homicidal death as a result of the action of the accused is proved beyond reasonable doubt. 13. It appears from the record that the learned Sessions Judge noticed the vital aspects of the case while holding that the prosecution had proved the offence as committed by the appellant - accused. The prosecution has been able to prove the case against the appellant - accused and therefore we see no reason to interfere so far as the case of the prosecution that the appellant is the one who committed the alleged offence. As per the latest decision of the Apex Court, we have appreciated, re-appreciated and re-evaluated the evidence led before the trial court in its entirety but we are unable to persuade ourselves to take a different view than the one taken by the trial court that the appellant is the perpetrator of the alleged offence. 14. However, we have also not lost sight of the fact that the deceased had died after about 6 days of treatment. From the medical reports, it is clear that the deceased suffered from certain complications which happened due to extensive burns. 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." 15. In the present case, we have come to the irresistible conclusion that the role of the accused is clear from the dying declaration and other records. However, the point which has also weighed with this court are that the deceased had survived for around 6 days in the hospital and ultimately died of complications. In fact she had sustained about 72% burns. 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(1) of Indian Penal Code. 16. In the premises aforesaid, appeal is partly allowed. The conviction of the appellant - original accused under Section 302 of Indian Penal Code vide judgment and order dated 19.10.2010 passed by the learned Sessions Judge, Principal Court, Gandhinagar in Sessions Case No. 42 of 2010 is altered to conviction under Section 304 (Part II) of Indian Penal Code. 16. In the premises aforesaid, appeal is partly allowed. The conviction of the appellant - original accused under Section 302 of Indian Penal Code vide judgment and order dated 19.10.2010 passed by the learned Sessions Judge, Principal Court, Gandhinagar in Sessions Case No. 42 of 2010 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 302 IPC. The amount of fine and sentence in default of fine is maintained. The judgment and order dated 19.10.2010 is modified accordingly. The period of sentence already undergone shall be considered for set off of sentence qua appellant - original accused. R & P to be sent back to the trial court forthwith.