Rahimbhai Jumabhai Shaikh vs State of Gujarat

G.R. Udhwani, J.—The appellant was sentenced to inter-alia, life imprisonment after finding him guilty of the offences punishable under Sections 302 and 498-A of the Indian Penal Code (for short "IPC") by the learned Presiding Officer, Fast Track Court No. 3, Rajkot by its judgment and order dated 13.2.2006 in Sessions Case No. 2 of 2005, the appellant is therefore before this Court in appeal questioning the impugned judgment and order. At the outset, we may mention that learned counsel for the appellant argued this appeal on very limited ground i.e. conversion of sentence u/s 302 of IPC. In his submission, in absence of the intention or knowledge attributable to the appellant to kill his wife, the punishment at the most could have been u/s 304 Part-II of IPC. We have therefore examined the matter accordingly.

From record it appears that the appellant was found guilty for the above offences on the basis of the testimony of P.W. 8 Exh. 26 who was the sole eye-witness, according to whose version, there was heated altercation between the deceased and the appellant who were husband and wife and the deceased was pulled into a room after pushing the witness who wanted to save her mother, and that inside the room, the quarrel continued, and in the heat of moment appellant sprinkled the kerosene on the person of the deceased, she, in order to save herself, opened the entrance door of the room which was locked by the appellant; came out in the open but the appellant chased her; ignited matchstick; threw it on her and as she was already soaked in kerosene, was soon, ablaze. The deceased started running helter-skelter and thereafter she was helped by the appellant to the private hospital. But, since the expenses were beyond his reach, on advice, she was shifted to Government hospital. It is also apparent on record that the deceased, after a treatment of five or six days, left the hospital against the medical advice, and on the next day, at her home, she succumbed to septicaemia.

Evidence of Doctor P.W. 15 Exh. 46 also clearly indicates that had the deceased not left the hospital against medical advice, there were all chances of her survival. From the testimony of the doctor, it also appears that she had suffered 40% 2nd degree burns, which, as per the medical jurisprudence, were not fatal, and the chances of such injured person of survival are more than 50%. It is eloquent from the dying declaration of the deceased that the offence occurred in heated altercation but the appellant ultimately tried to save her and he himself also sustained burn injuries, and it is he who took her to a private hospital and then to the Government hospital. From the FIR also the above facts are fortified. Thus, from what has been discussed above, it is apparent that the offence occurred in a heat of moment, appellant having no intention to kill her, he tried to save her, took her to the hospital. Additionally, the deceased was to blame herself for death as she left the hospital against medical advice, and as discussed above, there were full chances of her survival if she had not left the hospital and the P.M. report is an indicator that she died due to septicaemia.

Learned APP Mr. Neeraj Soni, however, contended that the offence was serious in nature and the deceased was thrushed and beaten even after she was set ablaze by appellant and her death was a direct consequence of the injury sustained by the deceased. He relied upon the testimony of P.W. 8 Exh. 50 and P.W. 9 Exh. 53 respectively as also the dying declaration and the contents of the FIR, and submitted that, this is not a case where the accused would be entitle to the benefit u/s 304 Part-II of the IPC as contended by the learned counsel for the appellant.

Having considered the arguments advanced by both the sides, it appears to us that this is a fit case where there were mitigating circumstances as discussed above. The offence occurred in the heat of moment. A person wanted to kill other would not rush her to the hospital and allow treatment to her. Further the deceased herself left the hospital against medical advise and died ultimately of septicaemia. In B.N. Kavatakar and Another VS. State of Karnataka, 1994 Supp (1) SCC 304 , where the deceased after sustaining wounds of sharp cutting weapon, sustained septicaemia which was the cause of death, the Hon''ble Supreme Court held that, in such a case, a person cannot be held responsible for murder. The fact that the deceased who died after five days and that too of septicaemia after leaving hospital against medical advice is corroborated by medical certificate to that effect Exh. 36.

Under the above circumstances, we are inclined to convert the offence from the one u/s 302 to u/s 304 Part-II of IPC.

The learned APP stated that the appellant is behind the bars since last more than eight years i.e. from 26.10.2004, and the maximum sentence which can be imposed u/s 304 Part-II of IPC is upto 10 years rigorous imprisonment. Having regard to the facts and circumstances discussed above, the ends of justice would be served if the appellant is ordered to suffer the imprisonment of the sentence already undergone by now. Under the circumstances, the appeal is partly allowed. The impugned judgment and order dated 13.02.2006 passed by the learned Presiding Officer, Fast Track Court No. 3, Rajkot in Sessions Case No. 2 of 2005 is modified to the extent that the sentence awarded to the appellant u/s 302 of Indian Penal Code is altered to one u/s 304 Part-II of Indian Penal Code. Appellant shall undergo rigorous imprisonment u/s 304 Part-II of IPC. He, having already served out eight years, five months and five days sentence, that should be treated as the sentence inflicted upon appellant for offence u/s 304 Part-II. He shall be set at liberty forthwith if not required in any other case. Farad of this judgment shall be served upon the concerned Jail authority forthwith.