PRADIP HARJIVANDAS PANDIT Vs. STATE OF GUJARAT

JUDGEMENT

(1.) Criminal Appeal No.950 of 1992 is preferred by the appellant/original accused under section 374 of the Code of Criminal Procedure, 1973 (for short "the Code") challenging judgment and order of his conviction under section 304 (Part II) of the Indian Penal Code and sentence to suffer RI for three years and to pay fine of Rs.1000/-, in default further SI for six months by the learned Additional Sessions Judge, Bhavnagar in Sessions Case No.97 of 1985.

(2.) The short facts of the prosecution case are that the incident in question, which took place on 13.3.1985 around 8:45 p.m. in Nirmal Nagar area of city Bhavnagar and as per the case of the complainant Viruben wife of the deceased Hirjibhai that her husband Hirjibhai left the house for evening walk around 17:00 hrs. and thereafter, returning from evening walk, the deceased sat on the Otla of vegetable vendor, namely Bhavanji. Around 21:45 hrs., some boys of the area came at her residence and told that someone had assaulted her husband Hirjibhai and he was lying on the Otla and upon hearing noise, she immediately left for the place of incident, where she saw her husband lying in a bleeding condition. Upon asking her husband about the assault, it was told by Hirjibhai that one Pradip had assaulted and further according to Viruben, Bhagwanbhai Naranbhai and Babubhai Tapubhai were also present by her side. That her son Dilip also reached the place of incident and thereafter, they hired a rickshaw in which the deceased was removed to the Hospital and one Dr. Bhagwandas Donda, who gave him primary treatment and applied stitches on the injury externally. The husband of the complainant was admitted as indoor patient and within an hour or so, the husband of the complainant collapsed and was declared dead. The postmortem was carried out on the next day in the morning and cause of death was due to injury mentioned in column No.17 and column No.17 of the postmortem report revealed one inch stitched wound over right thigh and two and quarter inch upon the knee joint. That necessary investigation was followed up regarding two entries at Exhs.29 and 30 by concerned Head Constable, namely, Dayaldas and scene of offence Panchnama was prepared under the light upon electric connection drawn from the house of a neighbour, one Maheshbhai. On recording statements of persons from the neighbourhood of the place where the incident had taken place and particularly of one Babubhai Tapubhai, who happened to be tenant of the complainant for about 19 years as an eye witness and at the end of investigation, charge sheet was filed and on committal of case to the Sessions Court, it was tried.

(3.) Shri K.B. Anandjiwala, learned Senior Counsel appearing for the appellant convict in appeal under section 374 of the Code would contend that the learned trial Judge has committed error while appreciating the medical evidence, inasmuch as one injury on non-vital part of the body and which was muscle-deep, namely, on right thigh and upon internal examination, Doctor found the femoral artery cut and as per testimony of PW 10 Dr. Donda, who treated the injured initially and applied stitches in the external surface only and subsequently, when testimony of another Dr. Vora PW 1 of Sir T. Hospital, Bhavnagar, who carried out postmortem categorically deposed about negligence on the part of doctor initially who had not taken stitches internally when femoral artery was cut resulting into excessive bleeding. Thus, even according to both the above PW 1 and PW 10, injuries were simple in nature and death could not have taken place in ordinary circumstances.