IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 937 of 2007 For Approval and Signature:
HONOURABLE THE ACTING CHIEF JUSTICE MR.BHASKAR BHATTACHARYA AND HONOURABLE MR.JUSTICE J.B.PARDIWALA ========================================== ===============
========================================== =============== ASHOKBHAI SHANABHAI RATHOD Versus STATE OF GUJARAT ========================================== =============== Appearance :
MR PB GOSWAMI for Appellant.
MR KP RAVAL, ADDL. PUBLIC PROSECUTOR for respondent.
========================================== =============== Date : 13/07/2012
CAV JUDGMENT
(Per : HONOURABLE THE ACTING CHIEF JUSTICE MR.BHASKAR BHATTACHARYA)
1. This appeal is at the instance of a convict for offence punishable under section 498A and section 304 Part-II of the Indian Penal Code and is directed against the order of conviction and consequent sentence dated 21st June 2007 passed by the learned Additional Sessions Judge, Fast Track Court No.4, Bharuch, in Sessions Case No. 4 of 2007. By the said order, the learned trial judge passed a sentence for simple imprisonment for 1 year and to pay a fine of Rs.500/- for the offence punishable under section 498A of the Indian Penal Code, with a further stipulation that in default of payment of fine, he would undergo further simple imprisonment for 15 days. So far as the offence punishable under section 304 Part-II is concerned, the accused was sentenced to undergo rigorous imprisonment for 10 years and to pay a fine of Rs.1000/- with a further condition that in case of failure to pay the fine, he would undergo further rigorous imprisonment for 3 months. The period of imprisonment undergone as under-trial prisoner was ordered to be set of.
2. The case made out by the prosecution may be summed up thus:
2.1 The complainant, Arvindbhai Tulsibhai Vasava, had lodged a complaint on 13th November 2006 before the Police Inspector, Valiya Police Station to the effect that the complaint was residing at Khadi Faliya, Chotaliya, Taluka Valiya and was doing farming work. He had stated in the complaint that his father died about five years ago from the date of filing the complaint. His elder brother was married and residing with his family at village Pun. The complainant was also married and he had no issue. Thus, the complaint, his wife and his widowed mother were residing together at the above address. He had two sisters. Sita, the deceased, was his elder sister who eloped with the accused Ashokbhai Shanabhai Rathod and thereafter, they got married and in the said wedlock she had three children – the eldest son Ganesh aged about ten years old, the second son Kishan aged about seven and a half years and the third one, a daughter, Gita, was aged about two and a half years. Sita, and Ashok, the accused, were staying at village Hansot and were doing labour work there. His other sister Shanta was also married and staying at Rampara.
2.2 On 9th November 2006, Sita along with her three children came back to the house of the complainant and informed the complainant's wife and mother that the accused was a drunkard and used to inflict her with fist blows and kicks and thus, the accused was perpetrating physical and mental harassment to his sister, Sita.
2.3 On 11th November 2006, the accused came to the house of the complainant and wanted to take back his sister back to the house of the accused, but as she refused, the accused inflicted fist blows and kicks and went away carrying the minor daughter Gita with him.
2.4 Thereafter, on 12th November 2011, the accused again came to the house of the complainant along with his friend, one Jayantibhai Vishrambhai Wagri, a resident of Ramnagar, Hansot and stayed at the complainant's house for that night.
2.5 On 13th November 2011, the complainant, his mother and wife went to the field for agricultural work and at about half past ten, Ganesh, the eldest son of Sita, came running to the field and informed that the accused had been beating Sita and giving her a lot of blows of on her stomach, chest and neck, and even though Jayantibhai, the friend of the accused, tried to save her, the accused continued beating Sita and she appeared to be unconscious.
2.6 Hearing this, all of them hurriedly came back to the house where they found Sita lying down, and on examination, she was found dead. At that time, the accused had already left the house.
2.7 Upon asking the accused's friend, viz. Jayantibhai, he has informed that the accused wanted to take back Sita against her desire and as she refused, Ashok abused her, gave fist blows on her abdomen, chest and stomach and forcefully pushed her down about three times.
2.8 It is further stated in the complaint that even though Jayantibhai tried to rescue Sita, the accused was uncontrollable. It is further stated in the complaint that the incident was witnessed by the said Jayantibhai Vishrambhai Wagri, and Ganesh and Kishan, the sons of Sita. The accused has thus given physical and mental torture to the deceased and by giving her fist blows on her stomach, chest and neck has caused her death.
3. After completion of investigation, the accused was charged for offences punishable under section 498A and 302 of the Indian Penal Code, and the learned Judicial Magistrate, First Class, Valiya, having found that the case was exclusively triable by the court of Sessions, committed the same to the Court of Sessions as provided under section 209 of the Code of Criminal Procedure.
4. The accused denied the allegations and claimed to be tried.
5. At the time of hearing, the prosecution has examined the following witnesses.
6. The prosecution has also produced the following documentary evidence.
7. On completion of the evidence of the prosecution, the statement of the accused was recorded in terms of section 313 of the Criminal Procedure Code wherein the accused person denied the prosecution's case and asserted that he was innocent.
8. Ultimately, the learned Sessions Judge, on consideration of the materials on record, concluded that the offence under section 498A of the Act was proved. As regards the offence punishable under section 302 of the Indian Penal Code, the learned Sessions Judge was of the view that in the absence of intention to commit murder, it was established from the evidence on record that the appellant was guilty of an offence punishable under section 304 Part-II of the Indian Penal Code, and consequently, the sentence as indicated earlier, was imposed upon the accused.
9. Being dissatisfied, the accused has come up with the present appeal.
10. After hearing the learned counsel for the parties and after going through the material on record, we find that in the case before us, the prosecution has brought two eyewitnesses to the incident. Those are, PW.6, Jayantibhai Vishrambhai Wagri, the friend of the accused and PW.7 Ganeshbhai Ashokbhai, the son of the accused and the victim, aged 10 years.
11. PW.6 Jayantibhai Vishrambhai Wagri in his deposition at Exh.24 has stated that he was a friend of the accused and the accused and his family were known to him. On 12th November 2006, the accused came to his house and requested him to accompany the accused to his wife's house as she, along with her children, had gone back to her parental house and he might convince her to come back. Thus, the accused and this witness went to the paternal house of Sita at Chotaliya and reached there at about half past seven in the evening. Sita prepared supper for them and they stayed at her house for that night. On the next morning, Sita's brother, his wife and mother went to their field and sons of the accused were playing, when there were only three persons in the house, i.e. the accused, this witness and Sita. An altercation took place between the accused and Sita and hearing this, the sons of the accused came inside the house. The accused started giving fist blows on Sita and she fell down. After a while, Sita stood up for a moment and then again sat down and at that time, the accused inflicted her with kicks and blows. This witness has stated in his deposition that he tried to intervene but the accused threatened to kill him. The son of the accused rushed to the complainant and the complainant, his wife and his mother immediately came back to the house from the field. It thus appears from his evidence that as the deceased refused to come back with the accused, he had given fist blows on her stomach, chest and neck and also kicked her and in view of such assault on the deceased, she died.
12. PW.7 Ganesh, the son of the accused and the deceased, in his deposition at Exh.25 has almost repeated the same story. This witness had stated that as his father had beaten his mother, his mother came to Chotaliya along with her children. On the day of the incident, there was an altercation between his parents and at that point of time, his father started beating his mother in the presence of Jayantibhai. At that stage, he ran out to call his maternal uncle from the farm and when he came back, he found his mother lying dead.
13. We have gone through the cross-examination minutely. We find that both the witnesses are consistent in their evidence given in cross-examination.
14. From the post mortem report, the following injuries were noticed by the Medical Officer.
1. Bruise mark of 5” X 5” on the front part of chest.
2. Bruise mark of 5” X 4” on the left flank.
3. Bruise mark of 4” X 4” on the right flank.
4. Bruise mark of 5” X 4” on the lower black
14.1 It further appears from the post mortem report that the cause of death is shock due to rupture of spleen.
14.2 Thus, the medical evidence fully corroborates the oral evidence adduced by the aforesaid two eye witnesses.
15. Mr. Goswami, the learned advocate appearing on behalf of the appellant, tried to convince us that as there was a love marriage between the accused and the victim which was not accepted by the family of the victim, when she came back, it was not liked by her brother and he tried to force the victim go to back and she having refused, the brother assaulted her and the death was the result of such assault.
16. We find from the evidence on record that no suggestion has been given to either PW.6 or PW.7 that the accused was not present immediately before the incident. Thus, it is an admitted position that the accused went to the parental house of his wife, Sita, on the previous night along with his friend Jayantibhai Vashrambhai, PW.6. There is also no dispute that Jayantibhai Vashrambhai, PW.6, was a friend of the accused and on the request of the accused, he accompanied him for the purpose of making a request to the victim to come back to the house of the accused. In the circumstances, we do not find any reason to disbelieve the version of PW.6 and PW.7. Jayantibhai Vashrambhai, PW.6 is a friend of the accused and no suggestion was given to him that he colluded with the brother of the victim or that the accused did not request him to go the house of the deceased. Similarly, we do not find any reason to disbelieve the version of the elder son of the parties.
17. The learned Sessions Judge, as it appears from the record, was of the view that the offence was one punishable under section 304 Part II of the Indian Penal Code because the accused had no intention to kill but due to uncontrolled passion on the part of the accused, he had assaulted the victim resulting in her death. Since the State has not preferred any appeal against conversion of the charge from section 302 to section 304Part-II of the Indian Penal Code, there is no scope of considering whether it was a fit case where the accused should be held to be guilty for an offence punishable under section 302 of the Indian Penal Code at this stage of final hearing.
18. From the evidence on record, the fact that the victim died as a result of the blows and kicks inflicted by the accused upon the victim has been well proved and corroborated by the medical evidence. We, therefore, do not find any reason to interfere with such findings recorded by the learned trial Judge.
19. Similarly, in this case, it has been well established that ingredients of section 498A of the Indian Penal Code have been proved and it has been well established from the evidence on record that the accused used to regularly physically torture the victim in her matrimonial home in a drunken state and thus, the case comes within the purview of the expression “any wilful conduct which is of such a nature as is likely to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman as appearing in the Explanation (a) of Section 498 A of the Indian Penal Code.
20. Mr. Goswami, as a last resort, prayed before us that the sentence should be reduced.
21. Having regard to the nature of the injuries inflicted by the accused upon the victim, a helpless person, and none other than his own wife who was the mother of his three children, in most cruel manner, we are not impressed by such submission.
22. On consideration of the entire materials on record, we find no reason to interfere with the finding recorded by the learned Sessions Judge and the sentence imposed upon the appellant. The appeal is devoid of any merits, and is, therefore, dismissed.
[BHASKAR BHATTACHARYA, ACTING C.J.] mathew [J.B.PARDIWALA. J.]