RAJU Vs. STATE OF GUJARAT

JUDGEMENT

(1.) Both these appeals are preferred against the judgment and order dated 30.6.2005 passed by learned Presiding Officer, Fast Track Court No. 1, Bhavnagar, in Sessions Case No. 211 of 2003. By the impugned judgment, accused No. 1 was held guilty for offence punishable under Ss. 323 and 504 of the Indian Penal Code (for short, "IPC") and for offence under Sec. 323 of IPC, he was ordered to undergo simple imprisonment for three months and for offence under Sec. 504 of IPC, he was ordered to undergo simple imprisonment for six months. Accused No. 2 was held guilty for offence punishable under Sec. 302 of IPC and order to undergo imprisonment for life and to pay fine of Rs. 10,000/ - and in default of payment of fine, accused No. 2 was ordered to undergo imprisonment for two years. For offence punishable under Sec. 323 of IPC, accused No. 2 was ordered to undergo six months simple imprisonment; for offence under Sec. 504 of IPC, he was ordered to undergo simple imprisonment for one year and for offence under Sec. 135 of the Bombay Police Act, he was ordered to undergo three months' simple imprisonment and to pay fine of Rs. 100/ - and, in default of payment of fine, he was ordered to undergo one month's imprisonment. Accused No. 1 was acquitted from the charge of offence under Sec. 302 of IPC. Feeling aggrieved by his conviction, accused No. 2 has preferred Criminal Appeal No. 2371 of 2005, while Criminal Appeal No. 998 of 2006 is preferred by the State against acquittal of the accused.

(2.) The facts in brief giving rise to the filing of present appeal are as under: -

(3.) Mr. Ekant Ahuja, learned advocate for the appellant -original accused No. 2 has taken us through the evidence and submitted that the prosecution has miserably failed to prove its case against the appellants. He submitted that considering the medical evidence on record, it is clear that the deceased died due to the injuries received by him, however, he is not arguing the appeal for acquittal of accused No. 2 and he is arguing only on the quantum of punishment. He submitted that the deceased died 23 days after the incident and that is because of non -following of medical advise, therefore, it cannot be said that the accused is guilty for offence punishable under Sec. 302 of IPC. He also submitted that the cause of death is stated to be cardio -respiratory arrest due to stab injury on left side of chest and none of the doctors, PW -7, PW -9 and PW -20, have stated in their evidence that the deceased died due to septicemia, however, considering the fact that the victim died 23 days after the incident due to non -following of medical advise and there was septic in the body, therefore, accused No. 2 cannot be held guilty for offence under Sec. 302 of IPC and at the most, it can be said that accused No. 2 is guilty of offence under Sec. 304, Part -II of IPC. Mr. Ahuja has further contended that it has come on record that the incident took place on 15.7.2003 and the deceased died on 7.8.2003 i.e. 23 days after the incident and, therefore, the learned trial Judge has committed an error in convicting the accused for offence under Sec. 302 of IPC and, at the most, the accused could be held guilty for offence punishable under Sec. 304, Part -II of IPC. In support of his submission, he has relied upon the decision of the Honourable Apex Court in B.N. Kavatakar and another v/s. State of Karnataka [1994 Supp (1) SCC 304]. He has also relied upon the decision of Division Bench of this Court in State of Gujarat v/s. Harishkumar M. Khalas reported in, 2009 (4) GLR 2966. In view of these, he prayed that this appeal may be allowed.