PARSHOTTAMBHAI KADUBHAI BHAVAIYA Vs. STATE OF GUJARAT

JUDGEMENT

(1.) The judgment and order of conviction passed by the learned Additional Sessions Judge of Kheda at Nadiad on 31st December 1986 in Session Case No. 132 of 1986 is under challenge in this appeal under Sec. 374 of the Code of Criminal Procedure, 1973 (the Cr. P.C. for brief). Thereby the learned trial Judge convicted the appellant-accused of the offence punishable under Sec. 307 of the Indian Penal Code, 1860 (the I.P.C. for brief) and sentenced him to rigorous imprisonment for 3 years and fine of Rs. 200.00 in default rigorous imprisonment for one month.

(2.) The facts giving rise to this appeal move in a narrow compass. One lady, named, Shardaben, wife of the appellant-accused, was carried to Civil Hospital at Kheda in a burnt condition on 17th February 1986. Since it was a medico-legal case, the Medical Officer informed the police of it. Thereupon, her complaint was recorded by the police. It is at Ex. 29 on the record of the trial. The Medical Officer examined as prosecution witness No. 3 at Ex. 10 on the record of the trial gave treatment to her. He had found her condition to be somewhat serious. Thereupon, her dying declaration was recorded by the Executive Magistrate. It is at Ex. 9 on the record of the trial. It is proved by the evidence of prosecution witness No. 2 at Ex. 7 on the record of the trial. He recorded the dying declaration at Ex. 9. It appears that after treatment she recovered and she was discharged about 30 days later on 19th March 1986 as transpiring from the evidence of the concerned Medical Officer at Ex. 10 on the record of the trial. It appears that nearly a month later she breathed her last on 27th April 1986. Her post-mortem was conducted by Dr. N. B. Bhatt examined as prosecution witness No. 4 at Ex. 30. According to him, she died of shock and dehydration. In the course of investigation the investigating officer recorded statements of witnesses and also drew several panchnamas including the inquest panchnama. The investigating officer has been examined as prosecution witness No. 12 at Ex. 28 on the record of the trial. On completion of the investigation, the chargesheet was submitted in the Court of the Judicial Magistrate (First Class) at Mehmedabad on10th April 1986 charging the appellant-accused with the offences punishable under Secs. 307, 323 and 504 of the I.P.C. Since the offence under Sec. 307 of the I.P.C. is triable by the Court of Session, the learned trial Magistrate, by his order passed on 9th April 1986, committed the case to the Sessions Court of Kheda at Nadiad for trial. It came to be registered as Sessions Case No. 132 of 1986. It appears to have been assigned to the learned Additional Sessions Judge for trial and disposal. The charge against the respondent-accused came to be framed on 28th October 1986. Since in the meantime the lady had died on 27th April 1986 during the course of investigation, the respondent-accused was charged with the offence punishable under Sec. 302 and 323 of the I.P.C. The charge is at Ex. 2 on the record of the trial. The respondent-accused did not plead guilty to the charge. He was thereupon tried. After recording the prosecution evidence and after recording the further statement of the respondent-accused under Sec. 313 of the Cr. P.C. and after hearing the arguments, by his judgment and order passed on 31st December 1986 in Sessions Case No. 132 of 1986, the learned Additional Sessions Judge convicted the respondent-accused of the offence punishable under Sec. 307 of the I.P.C. and sentenced him to rigorous imprisonment for 3 years and fine of Rs. 200/- in default rigorous imprisonment for one month. That aggrieved the accused. He has, therefore, invoked the appellate jurisdiction of this Court under Sec. 374 of the Cr. P.C. for questioning the correctness of his conviction and sentence by the learned trial Judge.

(3.) Since the appeal was filed from jail and since the appellant-accused could not engage an Advocate, this Court appointed learned Advocate Shri K. B. Anandjiwala to represent the appellant-accused for the purpose of this appeal.