Gujarat High Court
Rajeshri W/O Vivekkumar Dixit vs State Of Gujarat & on 5 May, 2015
Author: Akil Kureshi
Bench: Akil Kureshi, Vipul M. Pancholi
R/CR.MA/1948/2015 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL MISC.APPLICATION (FOR LEAVE TO APPEAL) NO. 1948 of
2015
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RAJESHRI W/O VIVEKKUMAR DIXIT....Applicant(s)
Versus
STATE OF GUJARAT & 1....Respondent(s)
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Appearance:
MR P P MAJMUDAR, ADVOCATE for the Applicant(s) No. 1
PUBLIC PROSECUTOR for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE AKIL KURESHI
and
HONOURABLE MR.JUSTICE VIPUL M. PANCHOLI
Date : 05/05/2015
ORAL ORDER
(PER : HONOURABLE MR.JUSTICE AKIL KURESHI) This application for leave to appeal has been filed by the original complainant calling in question the legality of the judgment of the trial court dated 29.11.2014 in Sessions Case No.30 of 2013. Respondent No.2-original accused was convicted for the offence punishable under Section 304 part I of the Indian Penal Code and sentenced to 5 years of rigorous imprisonment. The applicant contends that said conviction should have been for the offence punishable under Section 302 of the Indian Penal Code. We have verified that there is no State appeal against the judgment. Whether the convict has filed appeal or not would not be relevant for our purpose in the present proceedings, except for clarifying that any observations made in this order would have no bearing in such appeal, whether already filed or that may be filed later.
Page 1 of 4R/CR.MA/1948/2015 ORDER
2. As per the prosecution case, accused is the father of Palak. Accused, his wife Rajeshri, his daughter Palak and his younger son Abhay resided together. Accused was a retired Army Officer. On 25.12.2012, Rajeshriben had to be taken to a Gynecologist, since she had uterus related problem. Her daughter Palak had taken her to the doctor. They were followed shortly by the accused. The doctor charged Rs.350/- for consultation. When three of them came home, the husband started shouting and abusing, breaking things in the house. He started beating the other three family members. The son ran up to the terrace. The husband continued beating of wife and the daughter. He gave 6-7 fist blows in the stomach of daughter Palak, who kept pleading with him not to beat them or to throw her out of the house. She told him that she would earn and repay the money. The accused threatened his wife that unless she withdraws all the cases, he would not leave them. In the meantime, the accused gave couple more fist blows to his daughter and left the house. The wife went inside the bathroom and came out to find his daughter lying on the cot unconscious. When the mother with the help of a neighbour took the daughter to a doctor, the doctor informed them that Palak was dead. This version comes out from the deposition of Rajeshriben P.W.7 Exh.36.
3. P.W. 4 Dr. Binoykumar Taraknath Sharma Exh.25 had carried out the postmortem. He was of the opinion that death was on account of shock due to loss of blood resulting from ruptured spleen.
4. On the basis of such evidence, the trial court believed the involvement of the accused in causing death of his daughter and convicted him for offence under Section 304 part I.
5. Learned advocate Shri Majmudar for the complainant vehemently Page 2 of 4 R/CR.MA/1948/2015 ORDER contended that the trial court committed serious error in not convicting the accused for offence under Section 302 when he had given multiple blows to a young girl in her stomach. He submitted that merely because the blows were given with bare hands would not mean that the accused cannot be attributed the knowledge that his action was so imminently dangerous that it was in all probability likely to result in death. He placed heavy reliance on the decision of Division Bench in the case of Laljibhai Maganbhai Vasava Vs. State of Gujarat reported in 2014 (3) GLR 2216 and in the case of State of Andhra Pradesh V Rayavarapu Punnayya reported in AIR 1977 SC 45.
5. We have perused the judgment under consideration and the evidence on record made available to us by the learned counsel for the applicant. We have proceeded on the premises that the accused had caused the death of his daughter Palak. However, the nature of culpability must be judged from the eye witness account and other relevant evidence, including the medical evidence. It was in this background that we had made a reference to the deposition of Rajeshriben P.W.7 and Dr. Binoykumar Taraknath Sharma who had carried out the postmortem. Combined reading of such evidence would reveal that on the date of the incident the accused got enraged and started beating up all the members of his family. For whatever reason, his assault was severe particularly on his daughter Palak. He gave seven blows with his fist on her stomach. The resultant injury, as the medical evidence would reveal, ruptured her spleen. Excessive bleeding caused her death. Under the circumstances, looking to the nature of assault and looking to the fact that the accused had not used any weapon would lead to the conclusion that the accused cannot be attributed with the intention to cause death. It is undoubtedly true that Section 300 of Indian Penal Code defines under which circumstances the culpable homicide would amount to murder, but also refers to the knowledge of a person that his Page 3 of 4 R/CR.MA/1948/2015 ORDER act is so imminently dangerous that it must in all probability cause death or such bodily injury as is likely to cause death. In the present case, however, looking to the manner and method of causing injuries, even this knowledge, the accused cannot be attributed. His conviction under Section 304 Part I, therefore, was correctly recorded and does not need to be disturbed. In the result, application for leave to appeal is dismissed.
(AKIL KURESHI, J.) (VIPUL M. PANCHOLI, J.) sndevu Page 4 of 4