Sadanad Venkatdri Tumma vs State of Gujarat

K.S. Jhaveri, J.—The present appellant has preferred this appeal under Sec. 374(2) of the Code of Criminal Procedure, against the judgment and order of conviction and sentence dated 31-1-2007 passed by the learned Addl. Sessions Judge, Surat in Sessions Case No. 201 of 2006, whereby, the learned trial Judge has convicted the appellant under Sec. 302 of I.P.C. and sentenced to undergo life imprisonment and to pay a fine of Rs. 75,000/-, in default, to undergo further R.I. for three years. Appellant is also convicted under Sec. 307 of I.P.C. and sentenced to undergo R.I. for 7 years, and to pay a fine of Rs. 20,000/-, in default, to undergo further R.I. for one year. He is also convicted under Sec. 325 of I.P.C. and sentenced to undergo R.I. for three years and to pay a fine of Rs. 5,000/-, in default to undergo further R.I. for one year. It is further ordered by the learned Addl. Sessions Judge that out of total amount of fine, Rs. 25,000/- each to be paid to the complainant (i) Samkka, (ii) Bhagyalaxmi and (iii) Samlaxmi by way of compensation under Sec. 357 of Cr.P.C., which is impugned in this appeal. The case of the prosecution is that the appellant was drinking liquor and not working, therefore, there were economic problems in the house, and therefore, the appellant was giving mental and physical torture to his wife Sandhya and many times, the appellant was used to leave the house. Therefore, Sandhya had left the house and went to her father''s house at Pratapnagar, Block No. 8, Street No. 8, House No. 2. That on 30-6-2006, the appellant along with his mother came to the house of Sandhya''s father, where, Sandhya, her mother-father and mother of appellant had advised the appellant to do work. Therefore, keeping grudge in mind why Sandhya had left his house without his permission, at about 2-00 O''clock in the night, the appellant had given blows with iron pipe on the head of Sandhya (his wife) and she succumbed to injuries. When complainant Samkka, appellant''s mother Samlaxmi and witness Bhagyalaxmi came to rescue Sandhya, the appellant had also beaten them by inflicting blows with iron pipe. When complainant had called her husband, the appellant ran away from there. Thereafter, they taken Sandhya to the hospital, where she died during treatment. Thereafter, the complaint was filed.

1.1. The appellant accused came to be arraigned for committing the murder and after the investigation was complete, the charge-sheet was held against the present appellant. Thereafter, as the case was exclusively triable by the Court of Sessions, the case was committed to the Court of Sessions, which was given number as Sessions Case No. 201 of 2006.

1.2. Thereafter, the Sessions Court framed the charge below Exh. 5 against the appellant for commission of the offence under Secs. 302, 307, 325 and 498A of I.P.C. The appellant-accused has pleaded not guilty and claimed to be tried.

1.3. To prove the case against the present appellant, the prosecution has examined the following witnesses:

P.W. 1 Ashokbhai Kanjibhai Patel Exh. 1

P.W. 2 Samkka Vainkat Exh. 15

P.W. 3 Bhagyalaxmi Vainkat Exh. 17

P.W. 4 Vainkat Mallu Exh. 18

P.W. 5 Dr. Ashok Babubhai Patel Exh. 21

P.W. 6 Dr. Rajesh Narayanbhai Patel Exh. 19

P.W. 7 Rameshbhai Chhotabhai Tailor Exh. 25

P.W. 8 Shaikh Daud Shaikh Suleman Exh. 28

P.W. 9 Iqbal Ali Mahmad Shaikh Exh. 30

P.W. 10 Upendra Satyanarayan Exh. 31

P.W. 11 Ramlu Vainkat Ramchandra Exh. 33

P.W. 12 Sudarshan Vainkat Chanda Exh. 35

P.W. 13 Swami Vaikya Exh. 37

P.W. 14 Ganesh Rajaram Exh. 39

P.W. 15 Shamlaxmi Vainkat Exh. 40

P.W. 16 Tirupati Bandiyalu Exh. 41

P.W. 17 Dilipkumar Mahobatsinh Brahmbhatt Exh. 43

1.4. The prosecution also relied upon the following documentary evidences so as to bring home the charges against the appellant-accused.

Complaint Exh. 16

Post-mortem Note Exh. 20

Injury certificate of Samkkaben Exh. 22

Injury certificate of Subhlaxmi Exh. 23

Injury certificate of Bhagyalaxmi Exh. 24

Panchnama of articles from dead body Exh. 29

Panchnama of scene of offence Exh. 32

Panchnama of clothes of injured witnesses Exh. 34

Panchnama of person of accused Exh. 36

Muddamal recovery panchnama Exh. 38

Inquest panchnama Exh. 42

Report of Police Station Officer Exh. 44

Despatch entry Exh. 45

Receipt of F.S.L. Exh. 46

F.S.L. report with covering letter Exh. 47

Serological Department Exh. 48

Letter written by F.S.L. officer Exh. 49

Letter Exh. 50

Primary report of F.S.L. Exh. 51

Report by P.S.O. to P.S.I. Exh. 52

Thereafter, after examining the witnesses, further statement of the appellants-accused under Sec. 313 of Cr.P.C. was recorded in which the appellant-accused has denied the case of the prosecution.

After considering the oral as well as documentary evidence and after hearing the parties, learned trial Judge vide impugned judgment and order dated 31-1-2007 held the present appellant-original accused guilty of the charge levelled against him under Secs. 302, 325 and 307 of I.P.C. and convicted and sentenced the appellant-accused, as stated above.

We have heard learned Advocate Mr. Pratik Barot for the present appellant and Ms. C.M. Shah learned A.P.P. for the respondent-State.

Mr. Barot learned Advocate appearing for the present appellant has fairly submitted that he could not claim clean acquittal or could not claim the benefit of doubt and tried to persuade the Court that conviction under Sec. 302 of I.P.C. may be modified and the present appellants may be convicted under Sec. 304 Part-I of I.P.C.

The learned Advocate for the present appellant has contended that the trial Court has committed an error in passing the impugned judgment and order, inasmuch as it failed to appreciate the material on record in its proper perspective, and hence, the present appellant deserves to be given the benefit of doubt and be acquitted.

On the other hand, learned A.P.P. has strongly opposed the contentions raised by the learned Advocate for the present appellants and has submitted that the trial Court has passed the impugned judgment and order after taking into consideration the facts and circumstances of the case as well as the material, in the form of oral and documentary evidence, produced before it, and hence, no interference is called for and the appeal deserves to be dismissed. Learned A.P.P. has further contended that this is a case of brutal murder, and therefore, no leniency should be shown to the accused since the injuries are on the vital part of the body, hence, no interference is called for and the appeal deserves to be dismissed.

Having gone through the entire record, it would be relevant to refer to Sec. 299 and Sec. 300 of I.P.C., which reads as under:

Sec. 299. Culpable homicide:- Whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide.

Sec. 300. Murder:- Except in the cases hereinafter expected, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or

2ndly:- If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or

3rdly:- If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or

4thly:- If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid.

XXX XXX XXX XXX

Sec. 304. Punishment for culpable homicide not amounting to murder:- Whoever commits culpable homicide not amounting to murder shall be punished with [imprisonment for life], or imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine, if the act by which the death is caused is done with the intention of causing death, or of causing such bodily injury as is likely to cause death,

Or

With imprisonment of either description for a term which may extend to ten years, or with fine, or with both, if the act is done with the knowledge that it is likely to cause death, but without any intention to cause death, or to cause such bodily injury as is likely to cause death.

Having gone through the above provisions, we are unable to persuade ourselves that it is a clear case of acquittal and the reason for the same is that the complaint was given by the mother of the deceased, and therefore, there is no question of mistaken identity. The evidence of P.W. 1-Ashokbhai Kanjibhai Patel, Exh. 14 coupled with the injuries, have led to the death of the wife of the accused. The injuries are as under:

Col. 17:

Lacerated wound present over Rt. Parietal region 4 c.m. to midline at size 6 x 0.5 bone deep.

Lacerated wound present over Rt. Parietal region 5 c.m., above Rt. ear size 10 c.m. x 1 c.m. x bone deep vertical.

Lacerated wound present Rt. Parietal region 3 c.m. above Rt. ear size 12 x 4 c.m. bone deep of size irregular in shape.

Lacerated wound present over Rt. Mastoid region of size 3.5 x 1 c.m. bone deep irregular in shape.

Lacerated wound present over Rt. Frontal region 2.00 c.m. above Rt. eye-brow at size 1 x 0.5 muscle deep.

Stitched wound present over Rt. frontal region 5 c.m. in length with 4 stitches present 3 c.m. above Rt. eye-brow.

Lacerated wound present over Rt. frontal region 2 c.m. from midline of six 2.5 x 0.5 c.m. muscle deep.

Stitched wound present in the midline at head of 4 c.m. in length, 3 stitches present.

Contusion present over Rt. cheek 6.5 c.m. x 1.5 c.m. red in colour.

Contusion with laceration present over Rt. side of lower Jaw of size 4.5 x 2.0 c.m. with abrasion of size 1.5 x 0.5 c.m. red in colour.

Lacerated wound present over Rt. cheek 2 c.m. in length with two stitches present.

We are unable to persuade ourselves to take a different view than the one taken by the learned trial Judge. Even the F.S.L. report contains blood-stain of the accused. Learned Advocate Mr. Barot has tried to convince us that this is not a case which would fall under Sec. 304, Part-II but under Sec. 304 Part-I because the intention and motive is not prove. We are unable to convince ourselves that this case would fall within the purview of Sec. 304, Part-I or 304, Part-II of I.P.C. the reason being that the incident occurred at 2-00 a.m. in the night. The medical evidence shows that the injuries were such that the incident has not happened in a spur of moment. The appellant has designed to do away with his wife and had inflicted iron pipe blows. The appellant had also caused injuries by inflicting blows with iron pipe to the complainant the mother of the deceased, his own mother Samlaxmi and witness Bhagyalaxmi. The ocular version of the witnesses corroborates with the medical evidence on record. In the recent decision of the Apex Court reported in Bakshish Ram and Another Vs. State of Punjab, in the case of Bakshish Ram v. State of Punjab, wherein, the Apex Court has held that the High Court should apply its independent mind and record its own finding by making independent assessment of evidence.

Having given our anxious thought, we are unable to accept the submission that the case would fall under Sec. 304 Part-II of I.P.C. However, it is clear that the motive and the intention has not been proved. The injury would such that accused would be having the knowledge that it would be fatal. This is nothing else but culpable homicide death of a person and is murder.

In view of the above discussion, there is no doubt left in our mind about the guilt of the appellants. However, at the same time, we feel that looking to the totality of the facts and circumstances under which the alleged incident occurred, though, the knowledge of the fact of inflicting iron pipe blows on the body of the deceased could be attributed to the present appellant. The prosecution has proved its case beyond reasonable doubt. However, fine imposed by the learned trial Judge is on higher side, and therefore, the same is required to be interfered with. In the result, this appeal is allowed in part. The impugned judgment and order dated 31-1-2007 passed by the learned Addl. Sessions Judge, Surat in Sessions Case No. 201 of 2006 recording the conviction of the present appellant is confirmed. However, fine imposed upon the present appellant for each of offence is reduced to Rs. 1,000/- for each of the offence. Order to give compensation to the complainant and injured witnesses is quashed and set aside. R. & P. to be sent back to the trial Court, forthwith. However, it is clarified that life would not be till last breath and his case may be considered by the appropriate authority.

A writ of this order be sent to the concerned Jail Authority, forthwith.