RAVJIBHAI SAGTHABHAI KAPADI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) This appeal is preferred against the judgment and order dated 06.10.2010 passed by learned 2nd Additional Sessions Judge, Deesa in Sessions Case No.3 of 2009, whereby accused no.1 was convicted for the offence punishable under Section 302 of the Indian Penal Code (for short, "IPC") and ordered to undergo imprisonment for life and to pay fine of Rs.1,000/-, and in default of payment of fine, accused no.1 was ordered to undergo further rigorous imprisonment for one month. By the impugned judgment, accused nos.2 and 3 were acquitted from the charges levelled against them. Feeling aggrieved by the impugned judgment, accused no.1 has preferred present appeal.

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

(3.) At the time of hearing of this appeal, Mr.Pratik Barot, learned advocate for the appellant-accused no.1 has taken us through the evidence and tried to establish that the prosecution has miserably failed to prove its case against the appellant. However, after arguing the matter at some length, he fairly conceded that in view of the medical evidence and statements of other witnesses, though the offence against the accused can be said to have been proved, he is arguing only on the quantum of punishment. He submitted that the incident in question has occurred in the spur of the moment and there was no pre-planning nor there was any intention on the part of the accused to kill the deceased. He also submitted that though the presence of the accused at the scene of offence is proved, looking to the medical evidence, it is clear that there was only one blow given by the accused. He further submitted that the victim died on 5.10.2008, while the incident had happened on 24.9.2008, therefore, the injury caused to the deceased is not the reason for death. He also submitted that in the postmortem of the deceased in column no.17, at serial no.4, the doctor has stated that there was "Bed sore of 5*4*0.2 cm. at coccygeal region yellowish infected at fout and areas of redness seen at places at flour & margin of bedsore." He, therefore, submitted that the victim has died due to complications and that too after 11 days from the incident and if the victim would have received a better treatment, her life would have been saved. In view of this, he submitted that the trial Court has committed an error in convicting the accused for the offence punishable under Section 302 of IPC and he could have been convicted at the most for an offence punishable under Section 304, Part-I of IPC. In support of his submission, he has relied upon the decision of the Apex Court in the case of Sanjay v. State of Uttar Pradesh, 2016 3 SCC 62, wherein it is observed as under:-