Vikrambhai vs State of Gujarat

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K.S. Jhaveri, J.—The appellant has challenged the judgment and order dated 07.11.2008, passed by the Additional Sessions Judge, Panchmahals at Godhra, in Sessions Case No. 07 of 2008, whereby he was convicted for the offence punishable under Section 302 of the Indian Penal Code (for short "the IPC") and sentenced to undergo imprisonment for life and fine of Rs. 500/-, in default of payment of fine, the appellant shall undergo further simple imprisonment for one month.

The case of the prosecution is that on 25.09.2007 in the evening hours, the appellant herein demanded money from his wife for drinking liquor, which she declined, therefore, the appellant started quarreling with his wife. At about 6''0 clock when his wife was preparing food, the appellant poured kerosene on her and set her ablaze. A complaint in respect of this incident was lodged by the complainant-deceased. In pursuance of this complaint, FIR vide Sahera Police Station I-CR. No. 159 of 2007 came to be registered.

The investigation was taken up and after usual investigation, charge-sheet came to be filed against the appellant. The offences committed by the appellant were exclusively triable by the Court of Sessions. Therefore, the learned Magistrate committed the case to the Sessions Court at Godhara under Section 209 of the Code, where it was registered as Sessions case No. 07 of 2008. Charge vide Exhibit-2 came to be framed against the appellant. He pleaded not guilty and claimed to be tried.

In order to bring home the charge against the appellants, the prosecution examined the following witnesses:-

4.1. The prosecution also produced and relied upon the following documentary evidence during the course of the trial.

After conclusion of the trial, further statement under section 313 of the Code of the appellant came to be recorded. The defence in the further statement is of total denial. The learned trial Judge heard the arguments of learned APP and learned advocate for the appellant and after appreciating the evidence, recorded the judgment and order of conviction against the appellant as aforesaid. Therefore, the present appeal.

We have been taken through the oral and documentary evidence by learned advocate for the appellant and learned APP for the respondent-State. We have independently and dispassionately applied our mind to this evidence.

Learned advocate for the appellant has vehemently contended that he is not disputing the presence and involvement of the appellant in the offence in question and restricted his arguments to alteration of sentence to one under section 304 (Part I) or (Part-II) from section 302 of IP Code since the deceased had died on account of septicemia.

7.1. In support of his contention, he relied upon the decision of the Apex Court in the Case of Tukaram and Others Vs. State of Maharashtra, of the said judgment reproduced as under:-

"7. It is true that the doctors have tried to cover up their indifference and negligence by deposing that the death could be attributed to the injury to the abdominal organs but we are of the opinion that had the doctors been a little vigilant during the 20 days that the deceased stood admitted to the hospital the possibility that he could have been saved cannot be ruled out. In this view of the matter we find that the accused are liable for conviction for an offence under Section 326/ 149 IPC instead of Section 304 part I read with Section 149 IPC.

The learned counsel for the State has however argued that it was a clear from the medical evidence that the injuries had been caused not only be the fist-blows but by the beating with the iron rods as well. It has admittedly been so stated by the eye witnesses but their depositions are not supported by the medical reports which reflected only an injury on the buttocks.

We are also told that as of today Accused 1-4 who had given fist-blow have undergone one year and 10 months of the sentence whereas A-5 who is said to have caused the knife injury has undergone three years and 20 days of the sentence whereas A-6, one of those who had caused an injury with an iron rod has undergone 2 years 11 months. We therefore, feel, that the ends of justice would be met if the sentence of all the accused is reduced to the period already undergone."

7.2. He also relied upon the decision of the Apex Court in the case B.N. Kavatakar and Another Vs. State of Karnataka, reported in 1994 SUPP (1) SCC 304 more particularly para-9, which reads as under:-

"9. The next question that comes up for our consideration is what is the nature of 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 Section 326 read with Section 34 IPC."

On the other hand learned APP Mr. Soni supported the impugned judgment and order of learned trial Judge and submitted that all the witnesses have supported the prosecution case in material particulars and therefore, there is no germane reason to interfere with the impugned judgment and order.

We have heard learned advocate appearing for the appellant and learned APP appearing for the respondent-State and perused the material on record. From a perusal of the dying declaration of the deceased and the evidence of the important witnesses we are of the considered opinion that the presence and involvement of the appellant in the crime is proved beyond reasonable doubt and there is no doubt left in our mind about the guilt of the present appellant. However, it is an undisputed fact that the deceased had died on account of septicemia. The Medical Officer who conducted the autopsy on the dead body of the deceased has opined that the cause of death of the deceased is "shock due to septicemia following extensive burns". Further, it has come on record that the deceased died after more than one month of the occurrence in the hospital.

Considering the above facts of the matter and also considering the principle laid down by the Apex Court in the Case of Tukaram and B.N. Kavatakar (supra), we are clearly of the view that the conviction of the appellant cannot be sustained under Section 302 of the Indian Penal Code, but the appropriate Section under which the appellant ought to be convicted is Section 304 part-I of the IP Code.

For the foregoing reasons, the present appeal is partly allowed. The impugned judgment and order of the trial Court dated 07.11.2008 passed in Sessions Case No. 07 of 2008 stands modified and the conviction of the appellant under Section 302 of the Indian Penal Code is altered to one under Section 304 Part-I of the Indian Penal Code. The appellant is sentenced to undergo rigorous imprisonment for a period of 10 (ten) years instead of life imprisonment. The rest of the part of the impugned judgment and order remains unaltered. Record & Proceedings, be sent back to the trial court concerned forthwith.