Gujarat High Court
Premsukh Trilokchand Chandak vs State Of on 2 September, 2013
Author: Ks Jhaveri
Bench: Ks Jhaveri
PREMSUKH TRILOKCHAND CHANDAK....Appellant(s)V/SSTATE OF GUJARAT....Opponent(s)/Respondent(s) R/CR.A/874/2007 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL NO. 874 of 2007 FOR APPROVAL AND SIGNATURE: HONOURABLE MR.JUSTICE KS JHAVERI and HONOURABLE MR.JUSTICE K.J.THAKER =========================================================== 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the Constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ================================================================ PREMSUKH TRILOKCHAND CHANDAK....Appellant(s) Versus STATE OF GUJARAT....Opponent(s)/Respondent(s) ================================================================ Appearance: MR ASHISH M DAGLI, ADVOCATE for the Appellant(s) No. 1 MR. K.P. RAVAL, LEARNED APP for the Opponent(s)/Respondent(s) No. 1 ================================================================ CORAM: HONOURABLE MR.JUSTICE KS JHAVERI and HONOURABLE MR.JUSTICE K.J.THAKER Date : 02/09/2013 ORAL JUDGMENT
(PER : HONOURABLE MR.JUSTICE KS JHAVERI)
1. By way of this appeal, the appellant, original accused, has challenged the judgment and order passed by the learned Additional Sessions Judge and Presiding Officer, Fast Track Court No.5, Surat, in Sessions Case No.116/2005 dated 12.04.2007, whereby, the appellant herein, original accused, has been convicted for the offences punishable u/s. 302 and 498(A) of the Indian Penal Code (for short, the IPC ). For conviction u/s.302 of the IPC, the appellant has been sentenced to undergo imprisonment for life and fine of Rs.5,000/- and in case of default of payment of fine, simple imprisonment for a further period of three months. For conviction u/s.498 (A)of the IPC, appellant has been sentenced to undergo rigorous imprisonment for one year and fine of Rs.1,000/- and in default of payment of fine, simple imprisonment for a further period of one month. Both the sentences were ordered to run concurrently and the appellant has been given the benefit of set-off.
2. The brief facts of this case are that a complaint was filed by the complainant-Satyanarayan Punamchand Soni, inter alia alleging that the marriage of his sister, namely Rajeshwari had been solemnized with the present appellant on 11.11.1997 and out of their wedlock, two children were born. It is further alleged that initially the marriage life of his sister was going smoothly. However, after some time, the appellant started harassing his sister.
2.1. It is further alleged that on 03.02.2005 at about 6:00 am. in the morning the complainant received a telephone call from one Mangelal Chavda, who informed him that his sister got injured. Therefore, he immediately went to the house of his sister and saw the dead body of his sister lying on the floor near the cot and her neck was tied with the wire of electric iron. It is also alleged that when the complainant inquired from the present appellant as to what happened, he replied that there were verbal altercation and scuffle took place between them at night and due to sudden provocation the accused got strangulated the deceased by using the wire of electric iron. Thereafter, the complainant went to the police station and filed the complainant.
2.2. After necessary investigation was carried out and the appellant came to be arrested. On completion of investigation, charge-sheet was filed before the appropriate Court. Since the case was Sessions triable, it was committed to Sessions Court, Surat. The appellant herein pleaded not guilty and therefore, charge was framed and trial was initiated.
2.3. During the trial, the prosecution examined as many as 17 witnesses, viz. Dr. Lawleshkumar Sardaprasad Sinha, who was examined as P.W.1 at Exh.17, Satyanarayan Punamchand Soni as P.W.2 at Exh.21, Bhagirath Jasraj Rathi as P.W.3 at Exh.24, Magraj Ranidanji Tavdi as P.W.4 at Exh.25, Zummarlal Chunnilal as P.W.5 at Exh.26, Dinesh Omkar as P.W.6 at Exh.27, Pokhrajbhai Baluram Dagha as P.W.7 at Exh.29, Dr. Rohit Babubhai as P.W.8 at Exh.33, Bhomraj Badrinarayan as P.W.9 at Ex.37, Ashok Bhagirathbhai Rathi as P.W.10 at Ex.40, Rajendra Hukmichand Tavdi as P.W.11 At Exh.41, Ramkishor Premraj Rathi as P.W.12 at Exh.44, Premraj Dharaj Rathi as P.W.13 at Exh.47, Manharbhai Thakorbhai Mahyavanshi as P.W.14, at Exh.54, Sahebrao Gangarao Choudhary as P.W.15 at Exh.59, Janakbhai Ravatbhai Vala as P.W.16 at Exh.61 and Bhavesh Dipakbhai Desai as P.W.17 at Exh.79.
2.4. The prosecution had also relied upon several documentary evidence, more particularly the Panchanama of clothes of deceased at Exh.38, Post mortem Note at Exh.18 and the complaint at Exh.22.
2.5. At the end of trial, the Court below recorded the further statement of the accused u/s. 313 of the Criminal Procedure Code and ultimately, passed the impugned judgment and order of conviction, which is under challenge in the present appeal.
3. Mr. Dagli, learned advocate for the appellant has submitted that the trial Court has passed the impugned judgment and order without appreciating the evidence on record. He further submitted that the incident in question had occurred in the heat of the moment, the appellant did not intent to kill the victim or to cause such grievous injuries, which shall lead to her death. He, therefore, submitted that considering aforesaid facts, this Court may consider the case of the present appellant under section 304 (Part I) or (Part II) of IPC.
3.1. Mr. Dagli, learned advocate for the appellant contended that the trial Court has committed error in convicting the present appellant u/s.498 (A) of the IPC since the prosecution has not been able to prove that the ingredients of offence punishable under section 498 (A) of the IPC are present in this case.
4. Learned APP appearing for the respondent-State has submitted that the trial Court after appreciating the evidence on record has passed the impugned judgment order. He further submitted that the trial Court has rightly passed the impugned order since there were ample direct and indirect evidences on record to connect the appellant with the crime.
5. We have heard learned advocate appearing for the appellant and learned APP appearing for the respondent-State and perused the oral as well as documentary evidence on record. The fact that deceased died a homicidal death stands amply proved by the testimony of PW-1-Dr. Lavleshkumar Sardaprasad Sinha, who has been examined vide Exhibit-17. He has categorically stated in his evidence that cause of death of the deceased is due to asphyxia as a result of ligature strangulation. Thus, from the evidence of this witness, it is crystal clear that the death of the deceased is a homicidal death.
6. The prosecution witness No.2-Satyanarayan Punamchand Soni, who is the complainant was examined at Exh.21. In his deposition, he stated that the deceased-Rajeshwari was his cousin sister. He stated that on 03.02.2005 at about 6:00 am. he received a telephone call from one Mangelal Chavda, who informed him that his sister got injured. Therefore, he immediately went to the house of his sister and when he reached there, he saw the dead body of his sister lying on the floor near the cot and her neck was tied with the wire of electric iron. He further stated that when he inquired from the accused as to what had happened, the accused stated that there were verbal altercation and scuffle took place between them at night and due to sudden provocation, he got strangulated the deceased by using the wire of electric iron. Thereafter, the complainant went to the police station and filed the complaint. In the cross-examination, this witness stated that the accused had not told him that any quarrel and scuffle took place between them on the day of incident and he himself has strangulated the deceased by using the wire of electric iron.
7. The prosecution witness No.3-Bhagirath Jasraj Rathi, who has been examined at Exh.23, has fully supported the case of the prosecution. In his deposition, he has stated that on the date of incident at about 5:30 am. he received telephone call from Ratanlal Rathi and he went Mahalaxmin Apartment, where Ratanlal Rathi told him that the present accused has killed his wife. This witness also stated that one Purushootambhai Panpalia told him that the accused had killed his wife by using a wire of an electric iron. This witness also stated that when he entered into the room of the deceased, he saw her lying on the floor and his neck was tied with wire of electric iron. In the cross-examination, nothing incriminating has been born out to disbelieve the evidence of this witness.
8. Further, the evidence of this witness (P.W.3) gets corroboration from the testimonies of P.W.4 (Magraj Ranidanji Tavdi) and P.W.5 (Zummarlal Chunnilal). The medical evidence on record also supports the prosecution case.
9. Considering the evidence of these witnesses and also considering the medical evidence including post mortem report, there is no doubt left in our mind about the guilt of the present appellant. However, the question which falls for our consideration is whether, on reappraisal of the peculiar facts and circumstances of the case, the conviction of the appellant under Section 302 of the Indian Penal Code should be upheld or the conviction deserves to be converted under Section 304 Part-I or Part-II of the Indian Penal Code. It would be relevant to refer Section 299 and Section 300 of the Indian Penal Code, which read as under:-
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.
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
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 whichthe 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 extent 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.
10. On consideration of the entire evidence, it is clear that the the incident in question occurred at the spur of the moment. There was no preplan or any premeditation on the part of the accused. The incident occurred on a very trivial issue. The accused person and the deceased were the husband and wife. The accused could not be said to have taken any undue advantage or acted in a cruel manner. Further, it has come on record that at the time of offence the accused had not possessed any weapon and by using a wire of electric iron the accused committed the offence. Therefore, we find that the accused had no intention to kill his wife and the offence appears to have been committed on account of heat of passion.
11. Considering the above aspects, we have no hesitation to hold that the conviction of the present appellant cannot be sustained under section 302 of the IPC, but the appropriate section under which the appellant ought to have been convicted is section 304 part-I of the IPC.
12. So far as the conviction of the accused u/s.498 (A) of the IPC is concerned, considering the evidence of the relatives of the deceased, we find that the prosecution has been able to prove that the ingredients of offence punishable under section 498 (A) of the IPC are present in the present case. The prosecution has been able to prove that physical / mental cruelty was meted out to the deceased by the present appellant. Under such circumstances, we find that the conviction of the appellant under section 498(A) of the IPC is just and proper and no interference is required to be called for by this Court.
13. For the foregoing reasons, the present appeal is partly allowed. The judgment and order of conviction and sentence under challenge is altered and modified from section 302 of the Indian Penal Code to one under section 304 part 1 of the Indian Penal Code and the appellant is sentenced to undergo rigorous imprisonment for 10 (ten) years instead of life imprisonment. The rest part of the judgment and order of conviction and sentence remains unaltered. The fine and indefault punishment as imposed by the trial Court is maintained. The appellant be granted the benefit of remission as admissible. R & P, if any, be sent back forthwith.
(K.S.JHAVERI, J.) (K.J.THAKER, J) pawan Page 13 of 13