Leave granted.
We have heard learned counsel for the parties at this stage.
The appellant herein has been convicted by the Trial Court for
an offence under Section 302 of the Indian Penal Code, 1860 (IPC)
and sentenced to undergo life imprisonment and pay a fine of
Rs.500/-, in default, to undergo simple imprisonment for three
months. This conviction and sentence has been upheld by the High
Court vide impugned judgment dated 29.09.2015.
whether the conviction under Section 302 IPC is justified or it
should be converted into one under Section 304 IPC. The matter has
been considered focusing on this aspect. We may now recapitulate
the facts in brief.
According to the prosecution case, original complainant of
this case namely, Shantaben @ Dhaniben Somabhai, is the mother of
deceased Shakuben. She lodged a complaint before Nabipur Police on
15.03.2008 that her daughter deceased Shakuben was married to
accused Lavghanbhai Devjibhai Vasava in Fichwada village about
eight years ago. Deceased Shakuben and the accused had been living
in Navinagri of Shahpura, the village of the complainant, for about
one year and maintaining themselves by doing labour work. In the
morning on the day of the incident, deceased Shakuben and her
mother Shantaben had gone for labour-work of weeding in the farm of
Patel of the village where crop of ladies' finger had been
cultivated. They returned home at about 1200 hrs. in noon for
having their meal and her daughter went to her house. When the
complainant was at her house, Vishnu, aged 6 years, son of deceased
Shakuben came to her house and told that his mother has been hit
with leg of a cot on her head and she was bleeding. Therefore, she
immediately went to the house of the deceased. At that time,
deceased Shakuben was lying near hearth in the house in an
unconscious state and a blood stained leg of cot was lying there.
It was known from the people gathered there that an altercation
took place between the deceased and the accused in connection with
preparing food. As the accused got instigated, he hit leg of cot on
the head of the deceased and ran away. As the deceased was bleeding
from her head, Kaliben daughter of the complainant, Lalo Amir
Vasava resident of her street and Dinesh Kashibhai Vasava took
deceased Shakuben to a hospital at Bharuch in an auto rickshaw of
Pravinbhai Gopalbhai, resident of the village. The complainant
returned to her house. Pravinbhai returned home with his rickshaw
in evening and told that the deceased has been sent to Vadodara
from Bharuch for further treatment. Thus, under such circumstances,
the original complainant Shantaben lodged a complaint before the
police.
As aforesaid, on the conclusion of the trial and after
appreciating the oral and documentary evidence, the Trial Court
returned a finding of guilt against the appellant and convicted
and sentenced him under Section 302 IPC. As far as event/occurrence
is concerned, that stands proved and to that extent judgments of
the courts below are without any infirmity. As mentioned above, the
only question is as to whether it was a case for conviction under
Section 302 IPC or 304 IPC.
We have perused the evidence in this behalf. We find that the
prosecution case itself proceeds that the incident took place in
the spur of moment. On 15.03.2008, when the deceased along with her
mother went for labour work in agricultural field and she returned
home around noon, she was preparing lunch in kitchen when, as per
the prosecution story, the appellant came to the house and
questioned the deceased about delay in cooking lunch. On this,
altercation took place between the appellant and his wife. At that
stage, the appellant got furious and in a rush of moment, he picked
a wooden object lying near the place of incident and inflicted
injury to the deceased. It is also an admitted case of the
prosecution that only one single blow was inflicted. The death of
Shakuben took place 10 days after the said incident while she was
undergoing treatment at Baroda Hospital. This is the case of the
prosecution itself.
This Court in the case of Dhirendra Kumar versus State of
Uttarakhand [ 2015 )3) SCALE 30] has laid down the parameters which
are to be taken into consideration while deciding the question as
to whether a case falls under Section 302 IPC or 304 IPC, which are
the following:
(a) The circumstances in which the incident took place;
(b) The nature of weapon used;
(c) Whether the weapon was carried or was taken from the
spot;
(d) Whether the assault was aimed on vital part of body;
(e) The amount of the force used.
(f) Whether the deceased participated in the sudden fight;
(g) Whether there was any previous enmity;
(h) Whether there was any sudden provocation.
(i) Whether the attack was in the heat of passion; and
(j) Whether the person inflicting the injury took any undue
advantage or acted in the cruel or unusual manner.
Keeping in view the aforesaid factors it becomes evident that
the case of the appellant would fall under Section 304 IPC as the
incident took place due to a sudden altercation which was a result
of delay in preparing lunch by the deceased. The appellant picked
up a wooden object and hit the deceased. The medical evidence
shows that not much force was used in inflicting blow to the
deceased. The prosecution has not set up any case suggesting that
relationship between the the husband and wife was not cordial,
otherwise. Manifestly, the incident took place due to sudden
provocation and in a heat of passion the appellant had struck a
blow on his wife, without taking any undue advantage. We are,
therefore, of the opinion that it was an offence which would be
covered by Section 304 Part-II IPC and not 302 IPC.
This is appeal is, thus, partly allowed. While maintaining the
culpability of the appellant, his conviction is altered to Section
304 Part-II IPC instead of Section 302 IPC. The appellant has
already served 9 years and 3 months of imprisonment approximately.
In the facts of this case, we are of the opinion that the sentence
of the appellant be reduced to the period already undergone.
Ordered accordingly.
The appellant shall be released forthwith, if not wanted in
any other case.
[A.K. SIKRI]
Petition(s) for Special Leave to Appeal (Crl.) No(s). 8923/2017
(Arising out of impugned final judgment and order dated 29-09-2015 in CRLA No. 978/2011 passed by the High Court Of Gujarat At Ahmedabad)
LAVGHANBHAI DEVJIBHAI VASAVA Petitioner(s)
VERSUS
THE STATE OF GUJARAT Respondent(s)
Date : 10-01-2018 This matter was called on for hearing today.
For Petitioner(s) Dr. Sushil Balwada, AOR
Mr. Jai Wadhwa, Adv.
Mr. Sandiv Kalia, Adv.
For Respondent(s) Ms. Hemantika Wahi, AOR
Ms. Jesal Wahi, Adv.
Ms. Mamta Singh, Adv.
Ms. Shodhika Sharma, Adv.
UPON hearing the counsel the Court made the following
O R D E R
Leave granted.
The appeal is partly allowed in terms of the signed reportable
judgment.
Pending application(s), if any, stands disposed of
accordingly.
(Signed reportable judgment is placed on the file)