Rajubhai Laxmanbhai Vasava vs State of Gujarat

A.M. Kapadia, J.—Challenge in this Criminal Appeal filed u/s 374 of the Code of Criminal Procedure, 1973 ("the Code" for short) is to the correctness of the judgment and order dated 7.7.2005, rendered in Sessions Case No. 14 of 2005, by the learned Additional Sessions Judge and Presiding Officer, Fast Track Court No. 3, Bharuch, by which the sole Appellant - Rajubhai Laxmanbhai Vasava (`accused'' for short), has been convicted for the offence punishable u/s 302 of the Indian Penal Code (`the IPC'' for short) and sentenced to imprisonment for life and fine of Rs. 5,000/-i.d., SI for 3 months.

The prosecution case as disclosed from the FIR and unfolded during the trial as under:

2.1. It is the case of the prosecution that PW-1 Rameshbhai Amarsang Vasava is doing labour in retail vegetables market. He had two sisters.

His elder sister is Chanchalben, aged about 24 years, whose marriage has taken place in Maktampur and she has been residing at her matrimonial home. His younger sister is Laxmiben, aged about 21 years, whose marriage has taken place with Rajubhai Laxmanbhai Vasava (accused) prior to two years of the incident. She had a daughter named `Joshna'' of one year old and has been residing at her matrimonial home with the accused .

2.2. It is the further case of the prosecution that his father had died in a vehicular accident and therefore a claim petition was filed before the Tribunal and for receiving the compensation amount awarded by the Tribunal, he called his both sisters to his house and therefore they had been to his house since last seven days. On 11.12.2002, at about 7''O clock in the evening, his brother-in-law Jesingbhai Vasava came to his house and went away after saying his sister Laxmiben to reach Zadeshwar till 8''O clock in the evening on Friday. On the day of the incident i.e. on 13.12.2002, at 11''O clock, he along with his two sisters - Chanchalben and deceased Laxmiben and his mother Dahiben went to the court at Bharuch and they were engaged in the court proceedings to receive the compensation amount awarded by the Tribunal. It is further alleged in the complaint that all of them have returned to their house at around 5.30 p.m. and at around 7.30 p.m. his sister Laxmiben went to the house of his aunt Ambaben, who is residing in the same street. He also went with her. It is also alleged in the complaint that when they were sitting for dinner, his brother-in-law Raju (accused) came there in angry mood and he started abusing his sister and also given kick blows on her abdomen. Therefore, his sister Laxmiben started crying and shouted and on hearing her shouts, his aunt Ambaben, his elder sister Chanchalben, his neighbour Bhalabhai Jerambhai and himself rushed there and all of them have tried to restrain the accused from giving more beatings to his sister Laxmiben. At that time many people of the street have assembled there. On seeing them, the accused ran away from there. Thereafter, his sister -Laxmiben started omitting. Therefore, she was shifted to the government hospital for treatment. After examining his sister, Doctor has declared her dead. It is therefore alleged in the complaint by the complainant that his brother-in-law Rajubhai Laxmanbhai Vasava has killed his sister Laxmiben by giving kick blows on her abdomen.

2.3. The aforesaid complaint was recorded by PW-6 -Ahmedkhan Akbarkhan Pathan, Writer of Bharuch City `B'' Division Police Station as per the narration given by the complainant - PW-1 Rameshbhai Amarsinh Vasava. He has also obtained the signature of the complainant beneath of the said complaint, which is produced on record at Exhibit-10 on the basis of the complaint, offence was registered against the accused at CR No. I-189 of 2002 for the offences punishable under Sections 302, 323 and 504 of the IPC. After registering th offence, PW-6 Ahmedkhan Akbarkhan Pathan went to the hospital when the dead body of Laxmiben was lying. Inquest was held on the dead body of Laxmiben in the presence of two panchas and the Executive Magistrate. Thereafter, the dead body was sent for autopsy to the Government Hospital, Bharuch. Thereafter he has also drawn the panchnama of scene of offence. Thereafter, he recorded the statements of the witnesses.

2.4. On receipt of the postmortem report and on the basis of the statements of the witnesses, as incriminating evidence was found against the accused, he has filed charge sheet against the accused for the commission of offence u/s 302 of the IPC in the Court of learned Chief Judicial Magistrate, First Class, Bharuch.

2.5. As the offence u/s 302 of the IPC is exclusively triable by the Court of Sessions, the learned JMFC, Bharuch, committed the case to the Court of Sessions, Bharuch, where it was numbered as Sessions Case No. 14 of 2005.

2.6. The learned Additional Sessions Judge and Presiding Officer, Fast Track Court No. 3, Bharuch, (the "Trial Court" for short) to whom the case was made over for trial, framed charge against the accused for the commission of the offence punishable u/s 302 of the IPC.

2.7. The charge was read over and explained to the accused. The accused pleaded not guilty to the charge and claimed to be tried. Therefore, he was put to trial by the Trial Court in Sessions Case No. 14 of 2005.

2.8. In order to bring home the charge levelled against the accused, the prosecution has examined in all six witnesses and relied upon their oral testimonies. The details of which are detailed in para-4 of the impugned judgment and order which are as under:

PW. No.

Name

Remarks

Exh. No.

Page No.

1

RameshbhaiAmarsangbhaiVasava

Complainant

09

13

2

RavishankarRajendrabhaiJha

Medical Officer

13

17

3

AmbabenManilalVasava

Witness

17

33

4

DahibenAmarsangbhaiVasava

Witness

18

33

5

BhalabhaiZaverbhaiVasava

Witness

19

34

6

AhmedkhanAkbarkhanPathan

Witness

20

35

2.9. To prove the culpability of the accused, the prosecution has also produced in all 7 documents and relied upon the contents of the same, details of which are detailed in para-4 of the impugned judgment and order.

2.10. After recording of the evidence of the prosecution witnesses was over, the Trial Court explained to the accused the circumstances appearing against him and recorded his further statement u/s 313 of the Code. In his further statement, the accused denied the case of the prosecution in its entirety and reiterated his innocence. He has also stated that deceased Laxmiben has received the amount of compensation on account of death of her father, who had died in vehicular accident, and therefore after the death of Laxmiben, he should not get the said amount, therefore, false case has been filed against him. However, he has neither led any evidence nor examined any witness in support of his defence.

2.11. On appreciation, evaluation, analysis and scrutiny of the evidence on record, the Trial Court came to the conclusion that the prosecution has successfully established that the deceased Laxmiben had died a homicidal death and the accused is the author of the injuries caused to the deceased. He has inflicted kick blows on the abdomen of the deceased, and as a result thereof, Laxmiben has died. Therefore, the complicity of the accused for committing murder of his wife Laxmiben has been duly proved. On the aforesaid findings, the Trial Court convicted the accused for the offence punishable u/s 302 IPC and sentenced to imprisonment for life and fine of Rs. 5,000/-I.d., SI for three months which has given rise to instant appeal at the instance of the accused.

Ms. Sadhna Sagar, learned Advocate appointed by the Legal Aid Committee for the accused, has vehemently assailed the impugned judgment and order by contending that the so called eye witnesses are the family members of the deceased and, therefore, no reliance can be placed upon their oral testimonies. She has further submitted that so far as the deceased - Laxmiben had died a homicidal death, there is no dispute. However, according to her, the prosecution has not proved the case against the accused beyond doubt as so called eye witnesses are near and dear relatives of the deceased and, therefore, no reliance can be placed upon their oral testimonies. It is also submitted by her that accused being her husband, there was no reason for him to kill his own wife. Therefore, the prosecution story is got up and with a view to see that the accused may not get the amount of compensation received by Laxmiben after her death, false case has been filed by her brother against him. It is also emphasized by her that the Trial Court has not appreciated the evidence in its true perspective and misdirected itself in appreciating the evidence of the prosecution witnesses. She, therefore, submitted that the impugned judgment and order of conviction and sentence is recorded against the evidence on record, the same deserves to be quashed and set aside by allowing the Appeal and thereby acquitting the accused of the offence with which he was charged. She, therefore, urges to allow this Appeal.

3.1. Alternatively, it is also submitted by her that if at all the evidence of the prosecution witnesses is accepted in its entirety, then, at the most, it is a case of simple injury, punishable u/s 323 of the IPC, as the accused has inflicted only kick blows on the abdomen, as a result thereof, her spleen has been ruptured and she died. She has further submitted that at the time when the accused inflicted kick blows on her abdomen, he had neither any intention nor any knowledge to kill her. Therefore, at the most, he can be convicted for the offence punishable u/s 323 of the IPC. He is in jail for more than five years, therefore, the sentence undergone by him may be treated as substantive sentence and he may be ordered to be released forthwith, if his presence is not required in connection with any other case. She, therefore, urges to pass appropriate orders.

Per contra, Mr. L.B. Dabhi, learned APP, has fully supported the impugned judgment and order throughout. According to him, the prosecution has successfully established the charge levelled against the accused. So far as the oral evidence of eye witnesses is concerned, there is no reason to disbelieve them. In presence of eye witnesses, the accused came there and inflicted four kick blows on the abdomen of the deceased - Laxmiben, as a result thereof, her spleen got ruptured and she died. Therefore, prosecution has proved that accused was the author of the injury caused to deceased Laxmiben.

4.1. Replying to the contention that the offence in question is one u/s 323 of the IPC because of simple injury and not an offence u/s 302 of the IPC, he has submitted that because of the four kick blows inflicted by the accused on the abdomen of the deceased Laxmiben, her spleen got ruptured and she has died. He has further submitted that as per the medical evidence on record, deceased Laxmiben was not of having any ailment nor her spleen was enlarged and therefore the accused had intention and knowledge that by inflicting kick blows on the abdomen, the deceased would die. Therefore, it is a case of murder punishable u/s 302 of the IPC and not the case of simple injury punishable u/s 323 of the IPC.

On the aforesaid premises, he has submitted that the appeal being totally devoid of any merit and deserves to be dismissed and thereby the order of conviction and sentence passed by the Trial Court against the accused requires to be confirmed. He, therefore, urges to dismiss the Appeal.

This Court has considered the submissions advanced by the learned Advocates appearing for the parties and perused the impugned judgment and order. This Court has undertaken a complete and comprehensive appreciation of all vital features of the case and the entire evidence on record, which is read and re-read by the learned Advocates of the parties with reference to broad and reasonable probabilities of the case. This Court has examined the entire evidence on record for itself independently of the learned Judge of the trial Court and considered the arguments advanced on behalf of the accused and infirmities pressed, scrupulously with a view to find out as to whether the Trial Court has rightly recorded the order of conviction and sentence.

So far as the death of the deceased being a homicidal one, the same has not been disputed by the learned Advocate for the accused and, hence, we need not discuss the same in detail. Suffice it to say that the prosecution has succeeded in establishing that the death of Laxmiben was a homicidal one through the evidence of PW-2 Dr. Ravishankar R. Jha, who has performed autopsy on the dead body of Laxmiben. He has performed the postmortem with the panel of Dr. Binjoi and also issued the Postmortem Note which is produced at Exhibit-15 as well as the certificate of cause of death which is produced at Exhibit-16.

6.1. On a conjoint reading of the oral testimony of PW-2 Dr. Ravishankar R. Jha, Medical Officer, General Hospital, Bharuch as well as the postmortem report at Exhibit-15 and the Certificate at Exhibit-16, there is no manner of doubt that the deceased had died as a result of injuries on the vital organ i.e. spleen. It is mentioned in the postmortem report that the weight of the spleen was 100 grams and there was a lacerated tear of (6 x 1 x 1 1/2) cm in the concave surface on spleen. It is also mentioned that red/white pulp disrupted the capsule torn and both the kidneys are pale and empty. Therefore, according to us, the Trial Court has rightly held that the deceased Laxmiben died a homicidal death and we confirm the finding of the Trial Court.

Now the next question which is required to be answered by us is as to whether the accused is the author of the injuries caused to the deceased.

7.1. In this connection, the prosecution has mainly relied upon the evidence of PW-1 Rameshbhai Amarsang Vasava, complainant, examined at Exhibit-9; PW-3 Ambaben Manilal Vasava, eye witness, examined at Exhibit-17; PW-4 Dahiben Amarsang Vasava, examined at Exhibit18, and PW-5 Bhalabhai Zaverbhai Vasava, examined at Exhibit 19.

7.2. PW-1 Rameshbhai Amarsang Vasava, who is examined at Exhibit-9, he has, inter alia, testified that his father has died in a vehicular accident. He is residing with his mother Dahiben and his wife Ranjaben and doing labour work in retail vegetables market. He has three sisters. The elder sister is Chanchalben and the younger sister is Laxmiben, whose marriage took place prior to two years of the incident with the accused. Out of the said wedlock, Laxmiben had a female child, named, `Joshna'' aged about one year. As his father had died in a vehicular accident and therefore a claim petition was filed before the Tribunal, which was allowed by the Tribunal. Therefore, he called his both sisters at his residence and they had been to his house since last seven days and on the date of incident all of them went to the Court to receive the cheque.

After receiving the cheque, they came to their residence at around 5.30 p.m. and at 7.30 p.m. his sister Laxmiben went to the house of his aunt Ambaben, who is residing in the same street. He also went with her. Thereafter, accused came to the house of his aunt at about 9. 30 pm in angry mood and he started abusing his sister Laxmiben and gave kick blows on her abdomen. Therefore, Laxmiben has become unconscious. The reason for giving kick blows was that since his sister-Laxmiben came from the court late, the accused got angry and provoked and therefore kick blows were given to his sister Laxmiben by the accused. Thereafter, all of them have taken his sister to the government hospital where she was declared dead. Thereafter, he lodged the complaint in this connection before Bharuch City `B'' Division Police Station, which is produced at Exhibit-10.

7.3. The prosecution has thereafter examined and relied upon the oral testimony of PW-3-Ambaben Manilal Vasava, examined at Exhibit-17 as an eye witness. She is the maternal aunt of the deceased. She has stated that the incident has taken place at 7.00 p.m. At that time, after taking dinner, Laxmiben was sitting outside her house. At that time, accused came to Laxmiben and gave kick blows on her abdomen. She came to rescue Laximben. Laxmiben shouted and on hearing her shouts, Dahiben and Chachalben rushed to rescue her, but on seeing them, the accused flee away from there. They have taken Laxmiben to the Civil Hospital, Bharuch, for treatment where she was declared dead. During the cross-examination, this witness has repelled the suggestion that at the time of incident she was not present. She withstood the test of cross examination. Nothing substantial has been brought out which would impeach the credibility of her evidence.

7.4. The prosecution has thereafter examined PW-4 Dahiben Amarsang Vasava, examined at Exhibit-18 and Bhalabhai Zaverbhai Vasava, examined at Exhibit-19, who are the mother and neighbour respectively. It is true that both these witnesses have not seen the incident of giving kick blows by the accused to the deceased Laxmiben. They came to know about the said incident from PW-3 Ambaben Manilal Vasava. PW-5 - Bhalabhai Zaverbhai Vasava has also deposed that when he came, accused was coming out of the house after giving kick blows to Laxmiben. He caught hold of him and thereafter the accused flee away.

On overall reappraisal of the evidence on record, it is clear that there is only one eye witness i.e. PW-3 Ambaben Manilal Vasava, who has in unequivocal terms narrated the incident. There is no reason for PW-3 Ambaben to falsely depose against the accused, who is the husband of her niece. It is true that the prosecution has relied upon the only eye witness. It is the settled principle of law by catena of decisions of the Supreme Court that if witnesses are near and dear relatives of the victim, that fact itself alone is not sufficient to discard their testimonies unless their evidence is impeachable and does not inspire confidence. It is also the settled principle of law by catena of decisions of the Supreme Court that even if there is only evidence of sole eye witness, if it is of sterling quality and unimpeachable, the same can be relied upon and the conviction can be based on the basis of it. In the instant case, evidence of PW-3 Ambaben is the sole eye witness, who is relative of both the deceased as well accused. There is no earthly reason for her to depose falsely against the accused. Her evidence inspires not only confidence but trustworthy as well. Therefore, reliance can be placed on her oral testimony to come to the conclusion that the accused is the author of the injury caused to the deceased. We, therefore, have no hesitation in coming to the conclusion that the accused is the author of the injury caused to the deceased.

Now, the next question which is required to be answered by us is whether what offence has been committed by the accused.

9.1. The contention of Ms. Sadhana Sagar, learned Advocate for the accused that the accused has inflicted kick blows on the abdomen of the deceased. Therefore, he had neither intention nor any knowledge to kill her. She has further submitted that the accused has no knowledge that by giving kick blows on her abdomen, her spleen would be ruptured.Therefore the offence which is said to have been committed by the accused is an offence punishable u/s 323 of the IPC. We are not at all impressed by the aforesaid submission made by Ms. Sadhana Sagar, learned Advocate for the Appellant - accused for the simple reason that the spleen of the deceased was not having any ailment and the weight of the spleen was 100 grams, which is the normal weight of the spleen of a healthy person nor the spleen was enlarged. Therefore, spleen of the deceased was not having any ailment, however her spleen has been ruptured because of the kick blows inflicted by the deceased. At the same time, it can be said that the accused has no intention to kill her because the accused came without any lethal weapon and gave kick blows only. Therefore, according to us, the offence which is said to have been committed by the accused is an offence punishable u/s 299 of the IPC, culpable homicide, not amounting to murder, which is punishable u/s 304 Part-II of the IPC because at the time of giving kick blows, though, he had no intention to kill her, but he had the knowledge that by giving kick blows, in all probability, the spleen of the deceased would be ruptured.

Seen in the above context, so far as the impugned judgment and order of conviction and sentence passed by the Trial Court, convicting the accused for the offence u/s 302 of the IPC deserves to be altered to an offence punishable u/s 299 of the IPC, culpable homicide, not amounting to murder, which is punishable u/s 304 Part-II of the IPC.

We, therefore, hold that the accused is guilty for the offence punishable u/s 304 Part-II of the IPC.

Now the question which is required to be considered by us is what sentence should be awarded to the accused. There are catena of decisions of the Supreme Court that when an offence of culpable homicide not amounting to murder punishable u/s 304 Part-II of the IPC is made out, normally, sentence of imprisonment varies from 4 to 5 years. In the instant case, the jail remarks sheet reveal that the Appellant has undergone total period of the imprisonment of 5 years 8 months and 15 days. Therefore, considering the facts and circumstances of the case, we are of the considered opinion that, the period undergone by the Appellant in jail is just and sufficient punishment, which would meet the ends of justice.

For the foregoing reasons, the Appeal succeeds in part and accordingly it is partly allowed. The conviction recorded by the Trial Court against the accused u/s 302 IPC is altered to Section 304 Part-II of the IPC and he is sentenced to suffer the imprisonment already undergone by him, which is 5 years 08 months and 15 days Accused is in jail and, therefore the Jail Authority is directed to set him at liberty forthwith if his presence is not required in connection with any other offence.