CR.A/542/2000 1/13 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 542 of 2000 For Approval and Signature: HONOURABLE MR.JUSTICE R.P.DHOLAKIA : HONOURABLE MR.JUSTICE KS JHAVERI : ========================================================= 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 ? ========================================================= LALJIBHAI CHANDIYABHAI VASAVA - Appellant(s) Versus STATE OF GUJARAT - Opponent(s) ========================================================= Appearance : THROUGH JAIL for Appellant(s) : 1,MS. SHILPA R SHAH for Appellant(s) : 1, MR HL JANI APP for Opponent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE R.P.DHOLAKIA and HONOURABLE MR.JUSTICE KS JHAVERI Date : 13/02/2008 CR.A/542/2000 2/13 JUDGMENT ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE KS JHAVERI) 1.0 This Appeal is directed against the judgment and order dated 24th May, 2000 passed by the learned Sessions Judge, Surat in Sessions Case No. 296 of 19996 whereby, the appellant – original accused was convicted for the offences punishable u/s. 302 of the Indian Penal Code [for short, “the I.P.C.”] and Section 135 of the Bombay Police Act [for short, “the B.P. Act”]. For conviction u/s. 302 of I.P.C., the appellant was sentenced to undergo imprisonment for life with fine of Rs.1000/- and in default of payment of fine, rigorous imprisonment for a further period of three months; while for conviction u/s. 135 of the B.P. Act, the appellant was sentenced to undergo rigorous imprisonment for six months with fine of Rs.500/- and in default of payment of fine, rigorous imprisonment for a further period of two months. Both the sentences were ordered to run concurrently. 2.0 The facts in brief, as emerging from the record, CR.A/542/2000 3/13 JUDGMENT are as under; 2.1 On 03.08.1999, at about 1200 hrs., while victim – Ukadiyabhai Supadiyabhai Vasava was passing through the front portion of the house of the appellant situated in Village Chandpura, Taluka Mandvi, District Surat, the appellant stopped him and entered into an altercation with him on the aspect of some dispute between himself and the brother of the victim regarding fencing of the agriculture land. In that process, the appellant inflicted an Axe blow on the abdomen portion of the body of the victim as a result of which the victim sustained severe bodily injuries. On that day, the victim was given some primary treatment. 2.2 On the next day, i.e. on 04.08.1999, the victim was taken to Mandvi Referral Hospital for necessary treatment. In the said Hospital, the victim narrated the history of the incident to the Medical Officer who was on duty at the relevant point of time. As it was a medico-legal case, the concerned Medical Officer gave a telephonic intimation about the said incident to Mandvi Police Station. CR.A/542/2000 4/13 JUDGMENT The P.S.O., who was on duty at the relevant point of time, made necessary entry regarding the same in the Station Diary. The P.S.O. gave a 'wardhi' to A.S.I. - Yashwant Bhav Rav for the purpose of carrying out necessary preliminary inquiry. On the basis of said 'wardhi', the Investigating Officer went to the Hospital and made necessary investigation. A complaint of the wife of the victim was noted down, which was thereafter, sent to the Police Station for the purpose of registering the offence and the same was registered as I – C. R. No. 97 of 1999 for offence punishable u/s. 326 of I.P.C,. Thereafter, investigation into the alleged offence was handed over to A.S.I. - Jivabhai Ratanbhai Patil. 2.3 As the physical condition of the deceased had started to deteriorate, he was advised to be taken to New Civil Hospital, Surat. A 'yaadi' was sent to the concerned Executive Magistrate for the purpose of recording the dying declaration of the deceased. After ascertaining the physical condition of the deceased and after following due procedure, the concerned Executive Magistrate recorded the dying declaration of the victim. CR.A/542/2000 5/13 JUDGMENT 2.4 Necessary investigation was carried out and statements of several witnesses were recorded. 'Panchnama' of the scene of offence was done and necessary 'muddamal' articles were collected. As cogent evidence was found against the appellant, he was arrested on 04.08.1999. Arrest 'panchnama' was prepared in the presence of 'panchas'. On interrogation, as the appellant showed willingness to produce the weapon, alleged to have been used in the commission of the offence in question, the same was recovered by way of a separate 'panchnama' in the presence of 'panchas'. 2.5 On 25.08.1999 the victim succumbed to the injuries. 'Marnottar' form was filled up and necessary arrangements were made for sending the dead body for post-mortem. A note was also sent to the concerned Magistrate for the purpose of adding Section 302 IPC in the complaint. All the 'muddamal' articles were sent to F.S.L. for examination. On receipt of the F.S.L. Report, PM Report and other reports, they were kept in the investigation file. CR.A/542/2000 6/13 JUDGMENT 2.6 Further investigation was carried out and statements of several witnesses were recorded. On completion of investigation, charge-sheet was filed against the appellant before the Court of learned Judicial Magistrate, First Class, Mandvi and as the case was exclusively triable by the Court of Sessions, the same was committed to the District & Sessions Court, Surat and it was numbered as Sessions Case No. 296 of 1999. The matter was transferred to the Court of learned Addl. Sessions Judge for disposal on merits. As the appellant pleaded not guilty to the said charge, trial was conducted. 3.0 In order to prove the guilt of the appellant, the prosecution has examined in all eight witnesses namely, PW – 1 Dr. Swapnil Sudhirkumar at Exhibit – 10, PW – 2 Babliben Supadiyabhai at Exhibit – 15, who is the complainant, PW – 3 Shankar Navalji at Exhibit – 17, who is a 'panch' witness and who has been declared hostile by the Court below, PW – 4 Dr. Sanjay Hariprasad Kedia at Exhibit – 22, who gave necessary treatment to the victim, PW – 5 CR.A/542/2000 7/13 JUDGMENT Mahendrasinh Vajesinh at Exhibit – 25, who is the Executive Magistrate, PW – 6 Yashwant Bhav Rao at Exhibit – 29, who is the A.S.I., PW – 7 Jivabhai Ratanbhai Patil at Exhibit – 30, who is also an A.S.I. and PW – 8 Kahansinh Waghsinh Jhala at Exhibit – 33, who was the P.S.I,. 3.1 The prosecution has also relied upon several documentary evidence, more particularly, the evidence in the form of complaint at Exhibit – 16, the Inquest 'panchnama', the dying declaration of the victim at Exhibit – 28, the 'panchnama' of the place of incident at Exhibit – 18, the Arrest as well as recovery 'panchnama' at Exhibit – 31, the Cause of Death Certificate of the victim at Exhibit – 14, the Notification published under the provisions of the Bombay Police Act at Exhibit – 32 and the Post-mortem Report at Exhibit – 18. 3.2 On submission of the closing ‘purshis’, the further statement of the appellant was recorded u/s. 313 of the Code of Criminal Procedure, 1973. After hearing learned counsel for the respective parties, the learned Addl. Sessions CR.A/542/2000 8/13 JUDGMENT Judge passed the impugned judgment and order and convicted the appellant for the alleged offence in question and imposed sentence as narrated in the earlier part of this judgment. Hence, the present Appeal. 4.0 Ms. Shilpa R. Shah learned Advocate for the appellant has fairly conceded that so far as the role played by the appellant in the alleged offence in question is concerned, she is not in a position to defend the same. 4.1 Learned Advocate for the appellant has, however, submitted that even if the evidence on record is taken as it is, the offence in question would not amount to one punishable under Section 302 IPC but, would be one punishable under Section 326 IPC. She has submitted that the Medical Officer, who has conducted the post-mortem of the deceased, has opined that the cause of death was “septicaemia due to peritonitis”. Therefore, the case would fall u/s. 326 IPC and not u/s. 302 IPC. 4.2 Learned Advocate for the appellant has contented CR.A/542/2000 9/13 JUDGMENT that the medical evidence on record in the form of deposition of the Medical Officer – Dr. Swapnil Sudhirkumar [PW – 1 at Exhibit – 10] also does not support the case of the prosecution inasmuch as the said Medical Officer has categorically stated that he would not be in a position to say as to whether the injuries in question were possible by the 'muddamal' weapon. She has, therefore, submitted that looking to the medical evidence on record, more particularly, the Report at Exhibit – 14, this is a fit case wherein the offence is required to be converted into one punishable u/s. 326 IPC and not u/s. 302 of IPC. 4.3 Learned Advocate for the appellant has requested that since the appellant has already undergone imprisonment for more than a period of eight years, the appellant may be released from the custody by treating the sentence already undergone by him as the sufficient sentence. 5.0 Mr. H. L. Jani learned APP has submitted that the Court below, after considering the entire oral as well as CR.A/542/2000 10/13 JUDGMENT documentary evidence on record, has convicted the appellant for the alleged offence in question. Hence, no interference is required from this Court in this Appeal. 6.0 Heard learned counsel for the respective parties and perused the oral as well as documentary evidence on record. In view of the statement made by the learned counsel for the appellant as regards the involvement of the appellant in the alleged offence in question, we are not discussing the same in detail. We are in complete agreement with the reasonings given by and the findings arrived at by the Court below qua the same and accordingly, hold the appellant guilty for the same. 6.1 However, as regards the contention raised by the learned Advocate for the appellant qua the medical evidence on record is concerned, it is true that the cause of death of the deceased has been shown to be “septicaemia due to peritonitis”, which is clear from the document at Exhibit – 14. It is a matter of record that the deceased suffered multiple internal as well as external injuries as a result of CR.A/542/2000 11/13 JUDGMENT the infliction of Axe blows by the appellant. The Medical Officer who has performed the post-mortem of the deceased has stated that all the injuries were ante-mortem. However, on a question being put to him as to whether the said injuries were possible by the 'muddamal' weapon, he has stated that the same might be possible from the said weapon, meaning thereby, that the Medical Officer was not sure as to whether the injuries in question were possible from the 'muddamal' weapon. 7.0 We are not entering into the said aspect of the matter in detail since the cause of death has been shown as septicaemia due to peritonitis. Considering the facts and circumstances of the case, it would be relevant to refer to a decision of the Apex Court in the case of B. N. Kavatakar & Anr. v. State of Karnataka reported in 1994 Supp (1) S.C.C. 304. The observations made in Para – 9 of the said decision are relevant, which reads as under; “9. The next question that comes up for our consideration is what is the nature of the offence CR.A/542/2000 12/13 JUDGMENT 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 septicaemia 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 u/s. 326 r/w. Section 34 IPC.” 7.1 In the present case, the Medical Officer, who has performed the post-mortem of the deceased, has stated the cause of death to be “septicaemia due to peritonitis”. Hence, the case on hand will be squarely covered by the decision of the Apex Court in B. N. Kavatakar's case (supra). It is matter of record that the deceased expired on 25.08.1999, i.e. after a period of twenty two days from the date of the alleged incident in question. 8.0 Thus, looking to the facts and circumstances of the case, we are of the view that the offence in question would be one punishable u/s. 326 IPC and not one punishable u/s. 302 IPC. Now, since the appellant has already undergone imprisonment for a period of more than CR.A/542/2000 13/13 JUDGMENT eight years, in the interest of justice, it would be appropriate that the sentence already undergone by the appellant is ordered to be treated as the sufficient sentence and is released from the custody. 8.1 For the foregoing reasons, the Appeal is partly allowed. The impugned judgment and order dated 24.05.2000 passed by the learned Sessions Judge, Surat in Sessions Case No. 296 of 1999 is modified and the sentence already undergone by the appellant – accused is ordered to be treated as the sufficient sentence. The appellant – accused is, therefore, ordered to be set at liberty forthwith, if he is not required in any other offence. Office is directed to send the Records & Proceedings to the trial Court concerned forthwith. [R. P. DHOLAKIA, J.] [K. S. JHAVERI, J.] Pravin/*