CR.A/966/2004 1/7 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 966 of 2004 For Approval and Signature: HONOURABLE MR.JUSTICE AKIL KURESHI ========================================================= 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 ? ========================================================= VITTHALBHAI SHAMALBHAI VASAVA - Appellant(s) Versus STATE OF GUJARAT - Opponent(s) ========================================================= Appearance : MS RUKHSANA M PATHAN for Appellant(s) : 1,MS SADHANA SAGAR for Appellant(s) : 1, MR PD BHATTE, APP for Opponent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE AKIL KURESHI Date : 27/03/2008 ORAL JUDGMENT 1. Heard learned advocate Ms. Sadhana Sagar for the appellant and learned APP Mr. P.D Bhatte for the State. CR.A/966/2004 2/7 JUDGMENT 2. The appellant is the original accused. He has challenged a judgement and order dated 1.5.2004 rendered by learned Additional Sessions Judge, Vadodara in Sessions Case No. 257/2003. The appellant was charged for offences punishable under Sections 307, 309 of the Indian Penal Code. He was convicted for offence punishable under Section 307 and sentenced to seven years of simple imprisonment and was also imposed fine of Rs. 1000/-. 3. As per the charge, exh.5 allegations against the appellant were that on 31.8.2003 at about 00:30 hours, he administered poisonous substance to his two daughters, Kajal aged five years and Mamta aged seven years and, thereafter, he himself consumed the same. 4. As per the prosecution, there was a marital dispute between the appellant and his wife Sarojben. Sarojben had left house of the appellant with their son, however, leaving behind two daughters with the appellant. The appellant thereupon out of frustration and anger took the said step. 5. Sarojben Vitthalbhai-PW3, wife of the appellant was examined at exh.13. She stated that after initial period of marriage her husband used to beat her under the influence of alcohol. Due to CR.A/966/2004 3/7 JUDGMENT daily quarrel, she had left her husband's house taking her son with her but leaving behind two daughters. On 31.8.2003, when she was at her mother's house, appellant came there late at night at 12:30 along with two daughters. The appellant had told her that he and daughters had consumed poison. He was telling the daughters to say that they should say that the mother has given the poison. The mother of Sarojben thereupon lodged the complaint with the police. 5.1 In the cross examination, witness stated that when the daughters were brought to her house, their condition was normal. 6. Manjulaben Manubhai Shankarbhai-PW-4, mother in law of the appellant, was examined at exh.14. She also narrated the incident in somewhat similar fashion. She had lodged the complaint before the police. 6.1 In the cross examination, she also stated that when the two girls Kajal and Mamta were brought to her house their condition was normal. 7. Elder daughter of the appellant, Kajalben Vitthalbhai-PW9 was examined at exh.18. She stated that her father used to beat her mother after consuming liquor. Her father had given medicine to her and her sister. CR.A/966/2004 4/7 JUDGMENT 8. Dakshaben Naginbhai-PW8(exh.20) is the wife of husband of Sarojben. She had also stated that the appellant had come to their house late at night on 31.8.2003 saying that medicine has been given to the two girls. 8.1 In the cross examination, she also stated that condition of appellant as well as that of two girls were normal when they had come to her house. 9. Dr. Minaxi Chimanbhai Chauhan-PW1(exh.8) was the Doctor who had treated the appellant and the two daughters. She was at the relevant time discharging duties as medical officer at SSG Hospital, Vadodara. She had recorded history of consumption of rat poison. She however, stated that none of the patients had any difficulty. All of them were conscious and after treatment they were discharged on 1.9.2003. 10.It may be noted that vomit of the appellant and other patients was collected by the Investigating Agency and sent for FSL report which duly recorded presence of poisonous substance called Zinc phosphate. 11.From the evidence on record, the guilt of the appellant can hardly be doubted. Quite apart from the confession that the appellant made to CR.A/966/2004 5/7 JUDGMENT his wife Sarojben-PW3, his mother-in-law Manjulaben-PW4 and Dakshaben-PW8, there was direct evidence of the eye-witness account of his daughter Kajal-PW9. All the three witnesses namely Sarojben-PW3, Manjulaben-PW4 and Dakshaben-PW8 have consistently stated that appellant came to their house late at night on 31.8.2003 and stated that he had consumed poison and had also given poison to the daughters. This was not even seriously challenged by the defence in the cross examination. This apart, the daughter of the appellant Kajal-PW9 clearly stated that her father had given poison to herself and to her sister. This is corroborated by FSL report where the presence of poisonous substance was detected in the stomach of the girls. 12.Insofar as the appellant having administered poison to his daughter and having consumed himself, there is no doubt in my mind. Question of quantum however, remains. 13.From the jail record, it appears that the appellant has served a total sentence of nearly five years including remission to which he is entitled to against the sentence of seven years. 14.All the witnesses namely Sarojben-PW3, Manjuben-PW4 and Dakshaben-PW8 stated that the appellant as well as his daughters were in CR.A/966/2004 6/7 JUDGMENT normal stable condition when they had visited the house of the wife of the appellant on 31.8.2003. Dr. Minaxi also stated that the condition of the two girls was stable and they had no apparent difficulty. The incident took place late at night on 31.8.2003. After the mother-in-law of the appellant took the daughters to the police station, they were sent to the hospital for treatment. They were discharged from hospital on 1.9.2003. Thus both the girls were treated as indoor patient for less than a day and discharged very shortly. This coupled with the fact that they had not become unconscious through out the incident and their condition was not stated to be either serious or critical, would demonstrate that the dose of poison administered was certainly not large. It was at the best a crude attempt on part of the appellant to get even with his wife who had left him due to which the appellant would have felt robbed. 15.Be that as it may, it is not a case wherein the conduct of the appellant is such that no lenient view can be taken. As already noted, appellant against sentence of seven years, has served out nearly five years of the term. 16.Under the circumstances, it would be appropriate to reduce his sentence to one already undergone. CR.A/966/2004 7/7 JUDGMENT 17.In the result, the appeal is disposed of by upholding the conviction but by reducing the sentence to one already undergone by the appellant. The appeal is disposed of accordingly. Appellant be released forthwith if not required in any other criminal case. (Akil Kureshi,J.) (raghu)