Ravjibhai Kanjibhai Rathod vs State of Gujarat

A.L. Dave, J.—This appeal arises out of the judgment and order rendered by the Sessions Court, Bharuch, on 26.8.2005, in Sessions Case No. 142/2004, whereunder the Appellant came to be convicted for the offences punishable under Sections 302, 307 & 504 of the Indian Penal code ["IPC" for short]. The trial Court imposed punishment for the said offences as under:

Under Section 302 IPC: Life Imprisonment and fine of Rs. 5000/-, in default S.I for three months. u/s 307 IPC: R.I for ten years and fine of Rs. 2000/-, in default S.I for one months. u/s 504 IPC: R.I for two years and fine of Rs. 1000/-, in default S.I for 15 days.

The prosecution case is that the Appellant had grievance against Meljibhai Premjibhai Rathod and, therefore, on 12.7.2004 at about 21.00 hours, he abused, intimidated and attacked Meljibhai with an axe at village Dantroi. He gave one blow on the chest and one on the neck of the deceased. This incident was witnessed by Sumanben, wife of Meljibhai (PW.6W. 6, Exh.2, Exh. 22), Laxmiben, daughter of Meljibhai (PW.7W. 7, Exh.2Exh. 24) and Navinbhai Balbhai Rathod, son-in-law of the deceased (PW.9W. 9,Exh.2Exh. 29). After the attack, the Appellant ran away and the deceased was taken to hospital, where he was treated for about 21 days and then discharged from the hospital and went home. He expired after four days of his discharge from the hospital, on 6.8.2004. Initially, the FIR was lodged alleging attack and attempted murder, but upon his death, Section 302 IPC was added and ultimately, charge sheet was filed in the Court of learned J.M.F.C. Hansot, who, in turn, committed the case to the Court of Sessions at Bharuch, where Sessions Case No. 142/2004 came to be registered.

The trial Court framed charges for the offences punishable under Sections 504, 307 & 302 IPC against the Appellant-accused at Exh.5Exh. 5, to which he pleaded not guilty and claimed to be tried.

3.1. The Sessions Court, after considering the evidence, found that the charges levelled against the Appellant were proved and, therefore, convicted him for the offences punishable under Sections 302, 307 & 504 IPC. Hence, this appeal by the convict.

Heard learned advocate Mrs. Parikh for the Appellant and learned A.P.P. Mr. Pandya for the State.

Learned advocate Mrs. Parikh submitted that the Appellant is convicted for the offence of murder as well as attempted murder of the same person and, therefore, the conviction is legally not sustainable. She submitted further that conviction u/s 504 IPC is also recorded in absence of any evidence to show that the deceased was criminally intimidated by the Appellant. Mrs. Parikh submitted that if the medical evidence is seen, there is no evidence to connect the death of the victim with the act of the Appellant-accused and, therefore, conviction of the Appellant for murder is ill-founded and so, the appeal may be allowed.

Learned A.P.P. Mr. Pandya has opposed this appeal. According to him, if the medical evidence, as a whole is seen, it indicates that the injury on the neck of the deceased was sufficient to cause death, as it was relatable to cervical spine injury and Dr. Pravinaben (Exh.4Exh. 42) has deposed to that effect. He submitted that the conviction of the Appellant is well-founded and, therefore, the appeal may be dismissed.

We have also examined the record and proceedings of the case in the context of rival submissions.

At the outset, it may be recorded that the conviction for both the offences of attempted murder and murder by the trial Court of the same accused, for the same injuries caused to the same person cannot be sustained and, therefore, the appeal deserves acceptance on this count.

Now, if the evidence of eye witnesses is seen, all of them, despite having been tested on touchstone of cross-examination, have firmly implicated the Appellant with the attack on the deceased with an axe. The evidence also indicates consistently that the attack was sudden and without any provocation being offered at the time of the incident. From the evidence of the first informant, wife of the deceased, it is clear that the Appellant had some grievance against the deceased and he carried a feeling that the deceased was thinking very high of himself. He, therefore, first of all thought of and then attacked the deceased with axe on his neck. Therefore, the attack by the Appellant on the deceased has to be accepted and cannot be disputed. Differently put, involvement of the Appellant in the attack on the deceased is, therefore, established.

The question is, what offence can be said to have been proved as having been committed by the Appellant. The deceased was taken to hospital, was treated for the injuries his on neck and chest and was relieved from the hospital after about 21 days, and after about 4 days from being relieved from the hospital, he died. The cause of death, as emerges from the evidence of Dr. Akhileshwar Ramratan Chaudhary (Exh.3Exh. 33) is water logging in the lungs. It also emerges from his evidence that the injury found on the chest of the deceased was not the cause of death. He also stated that he had not stated in the post-mortem note that the death had occurred because of the injury on the neck. The medical evidence, although, certainly indicates that the injury on the neck could have, in the ordinary course of nature, caused death of the deceased. The picture that emerges, therefore, is that the injury was sufficient in the ordinary course of nature to cause death, but it has not caused the death. Differently put, the assault by the Appellant has not resulted into the death of the deceased. The cause of death his congestion of left lung and there is no evidence to indicate that the congestion of lung was relatable to injuries allegedly caused by the Appellant. It, therefore, cannot be said that the act of the Appellant was the cause of death of the deceased. He, therefore, cannot be convicted for the offence of murder and that conviction has, therefore, to be set aside.

However, the trial Court has convicted the Appellant for the offence of attempted murder punishable u/s 307 IPC as well and has sentenced him to undergo R.I for ten years and to pay a fine of Rs. 2000/-,in default to undergo S.I for one month. The medical evidence clearly states that the injury on the neck of the deceased was sufficient to cause death of a human being in the ordinary course of nature. Both the doctors have deposed to this effect. The three eye witnesses clearly indicate that the Appellant caused injuries on the neck of the deceased and, therefore, conviction of the Appellant by the trial Court for the offence of attempted murder has to be upheld.

So far as the conviction of the Appellant for the offence punishable u/s 504 IPC is concerned, it calls for no interference in light of evidence of the first informant.

The resultant effect of the foregoing discussion is that the appeal is partly allowed. Conviction and sentence of the Appellant for the offence punishable u/s 302 of the Indian Penal Code of having committed murder of Meljibhai Premjibhai Rathod is hereby set aside and the Appellant, namely, Ravjibhai Kanjibhai Rathod is acquitted of the said charge. Fine, if paid, be refunded to the Appellant. Conviction and sentence of the Appellant for attempted murder of Meljibhai Premjibhai Rathod is hereby confirmed with fine. Conviction and sentence of the Appellant for the offence punishable u/s 504 IPC is also confirmed with fine. The appeal fails to the extent of challenge of conviction under Sections 307 & 504 IPC.

Both the sentences shall run concurrently.