2017 Supreme(Guj) 1757

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
ABHILASHA KUMARI, A.J. SHASTRI, JJ.
Bismillaben Kasam Karim Chauhan - Appellant
Versus
State of Gujarat - Respondent
CRIMINAL APPEAL NO. 58 of 2013
Decided On : 11-08-2017

Headnote:

Code of Criminal Procedure, 1973 -Section 374 -Indian Penal Code 1860 -Section 302,304,313 -Gujarat Police Act, 1951 -Section-135 -Appellant is the wife of deceased. It is the case of the prosecution, based upon the complaint, filed by the father of the deceased, (Exhibit-9) that on the night intervening. when the appellant was sleeping with her husband, she came out of her house and started shouting that she had killed her husband. On hearing the shouting, the complainant and his brother, ran towards the house of the deceased and saw that he was bleeding heavily from a head injury. When the complainant reached the house he saw that the deceased had died. The complainant went to call a doctor. When he returned with the doctor, the appellant told the doctor that if he treats the deceased she would involve him in a case and file a complaint against him, thereby stopping the doctor from treating the deceased. As per the case of the prosecution, the cause for the quarrel between the appellant and the deceased was that the appellant used to take their two goats to graze n the field alone and come back late at night. The deceased told the appellant that they should sell the goats, as the deceased was suspicious regarding the character of the appellant. Frequent quarrels took place between the appellant and the deceased on this issue, according to the complainant. A quarrel took place on the night of the incident as well and the appellant hit the deceased with a and gave a fatal blow, causing the death of the deceased. On the basis of this complaint an FIR, being C.R.No.I03/2012, was registered under Section-302 of the IPC and Section-135 of the Gujarat Police Act. A charge-sheet against the appellant was filed in the Court of learned Judicial Magistrate, First Class. The case being Sessions triable, the learned Magistrate committed it under Section-209 of the Code to the Sessions Court, where it was registered as Sessions Case No.41/2012. Thereafter, the charge at Exhibit-5 was framed against the accused under Section-302 of the IPC and Section-135 of the Gujarat Police Act. The plea of the appellant was recorded in which she stated that she has not committed any offence. In support of its case, the prosecution examined sixteen witnesses and adduced documentary evidence. In her statement under Section-313 of the Code, the appellant stated that she has not killed the deceased but he could have been hurt during a scuffle. She has stated that the deceased was sleeping on her daughter and she has not committed any offence. A false case has been registered against her and she is innocent -Held The evidence on record based, upon the factual situation emerging therefrom, clearly reveals that (i) there was a sudden fight between the accused and the deceased, the genesis of which was possibly the molestation of their daughter by the deceased, (ii) the act on the part of the appellant was not predetermined, (iii) the act was done in the heat of passion and fit of rage and (iv) the appellant has not taken undue advantage or acted in a cruel manner as it was the natural reaction of a mother under the circumstances. All the ingredients required for the invocation of Exception-4 of Section-300 of IPC are present in the case in hand. After according deep and anxious thought and considering the entire material on record carefully, we are of the view that the conviction of the appellant under Section-302 of the IPC is required to be modified so as to fall under Section-304 Part-II as there was no intention on the part of the appellant to cause the murder of the deceased. the reasons discussed at length hereinabove, in our considered view, the interest of justice demands the passing of the following order appeal is partly-allowed. and order, passed by the learned Sessions Judge in Sessions Case No.41/2012, is hereby modified to the extent that the conviction of the appellant under Section-302 of the IPC is converted to one under Section-304 Part-II. The judgment under challenge is set aside to the extent indicated above. Taking into consideration the facts of the case and the evidence on record, the sentence of imprisonment for life is set aside and the appellant is sentenced to undergo seven years imprisonment to meet the ends of justice. The Record and proceedings be sent back to the concerned Trial Court forthwith -Appeal is Allowed.