(Per : HONOURABLE MR.JUSTICE A.L.DAVE)
1. This appeal arises out of judgment and order rendered by the Sessions Court, Vadodara on 04.01.2006 in Sessions Case No.104 of 2004 convicting the appellant for the offence punishable under Sections 302 and 504 of the Indian Penal Code and sentencing him to undergo imprisonment for life and fine of Rs.3,000/-, in default, to undergo simple imprisonment for three months, and simple imprisonment for three months and fine of Rs.1,000/-, in default, to undergo simple imprisonment for 15 days, respectively.
1.1 The appellant was charged to have committed murder of his wife - Sumiben @ Sumanben on 13.01.2004 at about 23-00 hours in his home at Por, Navi Nagari, Taluka District Vadodara. At that point of time, only the appellant and his wife were at home. The appellant came home and asked for hot food. There was a dispute between him and his wife on that point, resulting into a quarrel. The appellant picked up a wooden log and gave thrashing to his wife. Ultimately, the wife died because of the injuries. The appellant approached his son next morning and told him that the deceased was not responding to his calls. Ultimately, the son found that the mother had expired because of injuries suffered by her.
1.2 The appellant's daugher Reva was also in the same vicinity. She also came and found the same thing. But, before her, the appellant made extra-judicial confession indicating exactly what had happened. The appellant's brother Kanubhai also arrived at and saw what had happened. The FIR was lodged by Kanubhai with Varnama Police Station and offence was registered and investigated. The police, ultimately, found sufficient material to connect the appellant with the offence and therefore, filed charge-sheet in the Court of Chief Judicial Magistrate, Vadodara, who, in turn, committed the case to the Court of Sessions and Sessions Case No.104 of 2004 came to be registered.
1.3 The charges were framed against the appellant at Exh.6 by the trial Court, to which, he pleaded not guilty and came to be tried.
1.4 At the end of the trial, the trial Court found that the charges against the appellant were proved, and recorded conviction and sentenced him as stated hereinabove. Hence, this appeal.
2. We have heard learned advocate Mr. Harnish Darji for the appellant and learned APP Mr. Dabhi for the respondent State.
3. Mr.
Darji submitted that he does not propose to argue the appeal for a clean acquittal. According to him, though the appellant took a false defence before the trial Court, there is sufficient material to infer that the case would attract Exception 4 to Section 300 of the Indian Penal Code. He submitted that there was no pre-meditation. The appellant and his wife had a long married life. There were no disputes between them and as such, the incident occurred all of a sudden when the appellant came home and asked for hot steaming fresh food. The deceased was ailing and she refused to serve hot food. This resulted into an altercation / quarrel, which enraged the appellant. He lost his control and picked up a wooden log lying in the house and gave beating to the deceased.
3.1 Mr.
Darji further submitted that there are multiple injuries, but, that is because of loss of control and hit of passion that this has happened and therefore, the conviction of the appellant may be altered from Section 302 of the Indian Penal Code to Section 304 Part II of the Indian Penal Code. He submitted that the appellant is aged person and has daughters and sons to look after. He comes from poor strata of the society and even not able to afford a private advocate. Therefore, while sentencing him, his case may be treated sympathetically.
4. Learned APP Mr. Dabhi has opposed this appeal. According to him, the appellant has given multiple blows on vital part of the body. Post incidental conduct of the appellant is also not good. He pleads innocence before his son and says that his mother was not responding, although the deceased was already dead at that point of time because of the injuries inflicted by the appellant. Mr. Dabhi, therefore, submitted that even if the case is considered as one falling under Section 304 of the Indian Penal Code, it would attract first part of the Section and appropriate punishment may be awarded.
5. We have taken into consideration rival side submissions and we have examined the record and proceedings. The prosecution has examined large number of witnesses, but, the major and important witnesses like; first informant, Kanubhai - Exh.11, Dashrathbhai Chandubhai - Exh.9, Revaben Kanubhai - Exh.10, etc., have turned hostile and not supported the prosecution case. Even the panch witnesses have turned hostile and not supported the prosecution case.
6. Although learned advocate Mr. Darji has conceded to the fact that involvement of the appellant in the incident is appropriately established, we deem it proper to observe that undisputedly, the incident had occurred during night hours between 13.01.2004 and 14.01.2004, in the house of the appellant where he and his wife - the victim, were the only persons in the house. It also emerges from the evidence of Dashrath, a hostile witness, who happens to be son of the appellant, that when he came home after seeing the movie in the night show, the door was bolted from inside and not opened instead of repeated knocking. The witness, therefore, had to go to his maternal aunt's place located about 50 feet away from their home. It also emerges from the evidence that on the next morning, he was called by his father to be told that the victim, mother of the witness, was not responding to the calls. All these factors would show that it is for the accused to explain as to how the incident occurred in the house resulting into death of the victim, because he and the deceased were the only two persons in the home when the incident occurred.
6.1 The defence, however, at the time of trial, has taken a plea that the deceased died of sickness that she was suffering from ailment and has not explained the injuries on the person of the deceased, which, ultimately, resulted into her death. The involvement of the appellant in the incident, therefore, stands well established and consensus on the part of Mr. Darji is justified.
7. Now, the Court is required to examine whether the death of Sumiben @ Sumanben caused by the appellant would amount to murder attracting punishment under Section 302 of the Indian Penal Code. In this context, it must be recorded that prima facie, there is no direct evidence on record to know as to what transpired at the time of occurrence between the deceased and the appellant, because they were the only two persons in the home. Most of the witnesses have turned hostile. However, if evidence of Revaben Kanubhai, PW2, Exh.10, is seen, she has not supported the prosecution case, but, she certainly admits that she could hear the quarrel between the appellant and his wife during the night of the incident.
7.1 The second evidence that is relevant is of Gitaben Lalabhai Thakor, Exh.48, who happens to be the daughter of the appellant. She also does not support the prosecution case wholly and has been declared hostile with the permission of the Court. However, during her cross-examination by the learned APP, she has made certain admissions which are relevant. She admits that the accused told her that on the previous night at about 11-00 pm, the food had gone core and the appellant asked Sumiben to heat the same and serve. In that, there was an altercation and a quarrel. Neighbour Kanubhai, therefore, came along with his wife Reva and cooled them down. However, the deceased went on speaking indiscriminately and therefore, the appellant picked up a wooden log and gave her thrashing. This admission on the part of the witness Gitaben Lalabhai Thakor throws light that how the incident occurred and it makes clear that there was no pre-meditation, the dispute occurred between the spouses. There is no history of dispute between the spouses prior to this occurrence and the appellant had no reason to have any grievance against the deceased. The quarrel took place suddenly and the appellant having lost control, picked up a wooden log which was lying nearby and has gave thrashing to the deceased and therefore, in our view, Exception 4 to Section 300 is attraced as is argued by learned advocate Mr. Darji.
8. The next question that requires consideration is that under which provision, the sentence can be awarded; whether Part I or Part II of Section 304 would be attracted. In this context, if we see the postmortem note, Exh. 34, we find that the deceased had multiple injuries, most of which were above the neck i.e. on vital part of the body. They resulted into fracture of the skull. There were injuries on hands and legs and therefore, the intention on the part of the accused to cause bodily injuries as are likely to cause death, can safely be inferred rather than knowledge. In our view, therefore, Part I of Section 304 of the Indian Penal Code would be the governing provision for awarding sentence. In our view, looking to the social background of the appellant and the circumstances in which the incident had occurred, we deem it proper to convict the appellant for offence punishable under Section 304 Part II of the Indian Penal Code and sentence him to undergo rigorous imprisonment for a period of nine years with a fine of Rs.2,000/-, in default, to undergo simple imprisonment for one month.
9. The appeal is partly allowed. The conviction of the appellant is altered from Section 302 of the Indian Penal Code to under Section 304 Part II of the Indian Penal Code and he is sentenced to undergo rigorous imprisonment for a period of nine years with a fine of Rs.2,000/-, in default, to undergo simple imprisonment for one month, with benefit of set off. So far as conviction for an offence punishable under Section 504 of the Indian Penal Code is concerned, there is no evidence on record to support that conviction and therefore, the same is set aside.
Sd/-
[A.L.
Dave, J.] Sd/-
[A.J.
Desai, J.] #MH Dave Top