Gujarat High Court
Pravinbhai Bhimjibhai Jadav - Dalit vs State Of ... on 29 April, 2016
Author: Ks Jhaveri
Bench: Ks Jhaveri, Biren Vaishnav
R/CR.A/558/2014 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL APPEAL (AGAINST CONVICTION) NO. 558 of 2014
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE KS JHAVERI
and
HONOURABLE MR.JUSTICE BIREN VAISHNAV
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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 or any order made thereunder ?
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PRAVINBHAI BHIMJIBHAI JADAV - DALIT....Appellant(s)
Versus
STATE OF GUJARAT....Opponent(s)/Respondent(s)
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Appearance:
MR PP MAJMUDAR, ADVOCATE WITH MR VALIMOHAMMED PATHAN,
ADVOCATE for the Appellant(s) No. 1
MR PRANAV TRIVEDI, ADDL PUBLIC PROSECUTOR for the
Opponent(s)/Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE KS JHAVERI
and
HONOURABLE MR.JUSTICE BIREN VAISHNAV
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R/CR.A/558/2014 JUDGMENT
Date : 29/04/2016
ORAL JUDGMENT
(PER : HONOURABLE MR.JUSTICE KS JHAVERI)
1. The appellant - accused has been found guilty of commission of offence under Section 302 of Indian Penal Code and has been awarded life imprisonment and fine of Rs. 2000/-, in default, rigorous imprisonment for one year by learned Additional Sessions Judge, Bhavnagar vide judgement and order dated 26.03.2014 passed in Sessions Case No. 71 of 2013.
2. The gist of the prosecution story is mentioned hereinbelow:-
2.1 The complainant - deceased namely Shitalben got married to son of the appellant two years prior to the alleged incident and she was subjected to ill-treatment by the appellant. On 08.02.2013, at about 12.00 to 12.30 pm when the deceased was cooking, the appellant came from behind and poured kerosene on her and lit a match stick. She sustained burn injuries and was taken to hospital for treatment. She thereafter succumbed to her injuries on 12.02.2013. A complaint was lodged by the deceased against the appellant.
2.2 Thereafter the offence was registered against the present appellant for the offences punishable u/s 302, 307, 504(2) & 498(A) of Indian Penal Code. Investigation was carried out and chargesheet was submitted against the appellant. Thereafter, as the case was exclusively triable by Page 2 of 7 HC-NIC Page 2 of 7 Created On Sat Apr 30 02:54:41 IST 2016 R/CR.A/558/2014 JUDGMENT the Sessions Court, the same was committed to the Sessions Court.
2.3 Trial was initiated against the accused and during the course of trial the prosecution examined the following witnesses whose evidences were read before us by learned advocates for both the sides :
P.W. Name of Witness Exhibit
No. No.
1 Mahmadmuseb Mahmadiqbal 11
2 Dr. Naynaben Gayakwad 17
3 Bhaveshsinh Ghanshyamsinh 28
4 Kamlaben Chanabhai 33
5 Sanjaybhai Chanabhai 35
6 Manjulaben Kalubhai 37
7 Mansukhbhai Bhikhabhai 38
8 Anjuben Ramjibhai 39
9 Vaghabhai Chitharbhai 41
10 Sashikantbhai Dudhabhai 42
11 Dilipbhai Khimjibhai 47
12 Vanrajsinh Pravinsinh 51
2.4 The prosecution has also relied upon certain
documentary evidence such as P.M. Note of deceased at Ex.
12, medical certificate of deceased at Ex. 19, panchnama of place of offence at Ex. 20, inquest panchnama at Ex. 24, dying declaration at Ex. 29, arrest panchnama at Ex. 43, FSL report and yadi at Ex. 60 - 67 etc which have been perused by us.
2.5 At the end of trial, after recording the statement of the accused and hearing arguments on behalf of prosecution and Page 3 of 7 HC-NIC Page 3 of 7 Created On Sat Apr 30 02:54:41 IST 2016 R/CR.A/558/2014 JUDGMENT the defence, the trial court convicted the appellant of the charges leveled against him by the impugned judgement and order. Being aggrieved by and dissatisfied with the aforesaid judgement and order passed by the Sessions Court the appellant has preferred the present appeal.
3. Mr. Majmudar, learned advocate appearing for the appellant submitted that though the case against accused cannot be said to have been proved inasmuch as there is no sufficient evidence found against him, he has restricted his arguments to alteration of conviction imposed upon accused under Section 302 of IPC to one under Section 304(Part II) of IPC. He submitted that instead of entering into the merits of the case, this Court may consider the fact that the deceased died after four days of the incident and therefore considering the decision of the Apex Court in the case of Maniben vs. State of Gujarat reported in (2009) 8 SCC 796 the conviction under Section 302 of Indian Penal Code may be altered to one under Section 304 (Part II) of Indian Penal Code and impose suitable punishment as this court may think fit.
4. Mr. Pranav Trivedi, learned APP, however, submitted that the trial court has given cogent reasons for sustaining the conviction under section 302 of Indian Penal Code and this court may not interfere in this appeal. It is submitted that the trial court has based the conviction not only on the evidence of the complainant but also considered entire circumstances of the case and the facts which are proved by cogent evidence.
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5. We have perused the records of the case. We have gone through the medical evidence on record. Since, Mr. Majmudar has restricted his arguments to the alteration of conviction from Section 302 to one under Section 304 (Part II) of Indian Penal Code as the Court deems fit, we do not discuss the evidence so far as the guilt of the accused is concerned. The accused is held guilty of the injuries inflicted upon the injured witness.
5.1 However, it shall be pertinent to refer to the medical evidence, more particularly the cause of death mentioned in the post mortem report which reads as under:
"Burns and its complications."
5.2 The deceased had died after about 4 days of treatment. From the medical reports, it is clear that the deceased suffered from certain complications which happened due to extensive burns. In the case of Maniben (supra), the Apex Court has observed as under:
"18. The deceased was admitted in the hospital with about 60% burn injuries and during the course of treatment developed septicemia, which was the main cause of death of the deceased. It is, therefore, established that during the aforesaid period of 8 days the injuries aggravated and worsened to the extent that it led to ripening of the injuries and the deceased died due to poisonous effect of the injuries.
19. It is established from the dying declaration of the deceased that she was living separately from her mother-in-law, the appellant herein, for many years and that on the day in question she had a quarrel with the appellant at her house. It is also clear from the evidence on record that immediately Page 5 of 7 HC-NIC Page 5 of 7 Created On Sat Apr 30 02:54:41 IST 2016 R/CR.A/558/2014 JUDGMENT after the quarrel she along with her daughter came to fetch water and when she was returning, the appellant came and threw a burning tonsil on the clothes of the deceased. Since the deceased was wearing a terylene cloth at that relevant point of time, it aggravated the fire which caused the burn injuries.
20. There is also evidence on record to prove and establish that the action of the appellant to throw the burning tonsil was preceded by a quarrel between the deceased and the appellant. From the aforesaid evidence on record it cannot be said that the appellant had the intention that such action on her part would cause the death or such bodily injury to the deceased, which was sufficient in the ordinary course of nature to cause the death of the deceased. Therefore, in our considered opinion, the case cannot be said to be covered under clause (4) of Section 300 of IPC. We are, however, of the considered opinion that the case of the appellant is covered under Section 304 Part II of IPC."
6. We have gone through the medical evidence of the doctors who had treated the injured victim. From the injury certificate and the evidence of doctor, we are of the view that the contention raised by learned advocate for the appellant is required to be accepted. Considering the cause of death and the fact that the deceased died after four days of the alleged incident coupled with the law laid down by the Apex Court in the aforesaid ratio, we are of the opinion that the conviction of the appellant under section 302 of Indian Penal Code is required to be converted to that under section 304(II) of Indian Penal Code.
7. In the premises aforesaid, appeal is partly allowed. The conviction of the appellant - original accused under Section 302 of Indian Penal Code vide judgment and order dated 26.03.2014 passed by the learned Additional Sessions Judge, Page 6 of 7 HC-NIC Page 6 of 7 Created On Sat Apr 30 02:54:41 IST 2016 R/CR.A/558/2014 JUDGMENT Bhavnagar in Sessions Case No. 71 of 2013 is altered to conviction under Section 304 (Part II) of Indian Penal Code. The appellant - original accused is ordered to undergo rigorous imprisonment for a period of five years under section 304 (Part II) of Indian Penal Code instead of life imprisonment as awarded by the trial court under section 302 IPC. The amount of fine and sentence in default of fine is maintained. The judgement and order dated 26.03.2014 is modified accordingly. The period of sentence already undergone shall be considered for set off of sentence qua appellant - original accused. R & P to be sent back to the trial court forthwith.
(K.S.JHAVERI, J.) (BIREN VAISHNAV, J.) divya Page 7 of 7 HC-NIC Page 7 of 7 Created On Sat Apr 30 02:54:41 IST 2016