RAHIMBHAI JUMABHAI SHAIKH Vs. STATE OF GUJARAT

JUDGEMENT

(1.) THE appellant was sentenced to interalia, life imprisonment after finding him guilty of the offences punishable under Sections 302 and 498A of the Indian Penal Code ( for short "IPC" ) by the learned Presiding Officer, Fast Track Court No.3, Rajkot by its judgment and order dated 13.2.2006 in Sessions Case No.2 of 2005, the appellant is therefore before this Court in appeal questioning the impugned judgment and order.

(2.) AT the outset, we may mention that learned counsel for the appellant argued this appeal on very limited ground i.e. conversion of sentence under Section 302 of IPC. In his submission, in absence of the intention or knowledge attributable to the appellant to kill his wife, the punishment at the most could have been under Section 304 PartII of IPC. We have therefore examined the matter accordingly.

(3.) EVIDENCE of Doctor P.W.15 Exh.46 also clearly indicates that had the deceased not left the hospital against medical advice, there were all chances of her survival. From the testimony of the doctor, it also appears that she had suffered 40% 2nd degree burns, which, as per the medical jurisprudence, were not fatal, and the chances of such injured person of survival are more than 50%. It is eloquent from the dying declaration of the deceased that the offence occurred in heated altercation but the appellant ultimately tried to save her and he himself also sustained burn injuries, and it is he who took her to a private hospital and then to the Government hospital. From the FIR also the above facts are fortified. Thus, from what has been discussed above, it is apparent that the offence occurred in a heat of moment, appellant having no intention to kill her, he tried to save her, took her to the hospital. Additionally, the deceased was to blame herself for death as she left the hospital against medical advice, and as discussed above, there were full chances of her survival if she had not left the hospital and the P.M.report is an indicator that she died due to septicaemia.