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CR.MA/15869/2010 7/ 7 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
MISC.APPLICATION No. 15869 of 2010
In
CRIMINAL
APPEAL No. 2205 of 2010
With
CRIMINAL
APPEAL No. 2205 of 2010
=========================================================
STATE
OF GUJARAT - Applicant(s)
Versus
BHARAT
@ BHOLO NARSI BORICHA - Respondent(s)
=========================================================
Appearance
:
MR
KARTIK PANDYA, APP for Applicant(s) : 1,
None for Respondent(s) :
1,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE D.H.WAGHELA
and
HONOURABLE
MR.JUSTICE J.C.UPADHYAYA
Date
: 23/08/2011
ORAL
ORDER
(Per
: HONOURABLE MR.JUSTICE J.C.UPADHYAYA)
1. The
applicant – appellant – State of Gujarat filed this
application seeking leave to prefer appeal challenging the impugned
judgment and order dated 27/10/2010 rendered by the Ld. Addl.
Sessions Judge, Veraval, in Sessions Case No. 45/2006, whereby the
respondent herein, who was original accused in the aforementioned
Sessions Case, came to be acquitted of the offences punishable
under sections 306 and 506[2] of the Indian Penal Code [IPC].
2. Mr.
Kartik Pandya, Ld. APP for the applicant – appellant submitted
that in this case deceased, while she was under treatment, lodged FIR
against the accused. During the course of treatment, she succumbed to
her burn injuries and, therefore, her FIR is her dying declaration
[for short ‘DD’] before the police. The prosecution examined as many
as 18 witnesses including the family members of the deceased and all
the family members of the deceased unanimously supported the
prosecution case. The trial Court recorded acquittal of the accused
solely on the ground that the prosecution failed to prove its case
that the accused abetted the suicide of the deceased. It is,
therefore, submitted that the appeal requires consideration and the
admission.
3. We
have examined impugned judgment and order rendered by the trial
Court, so also the copies of the depositions and other evidence
supplied for our perusal by the Ld. APP Mr. Pandya. Examining the
impugned judgment and order rendered by the trial Court, so also the
FIR, it is alleged that the accused, who at the relevant time, aged
about 23 years and the deceased complainant Urmilaben, who was aged
about 18 years, came in contact with each other. It is alleged that
the accused asked Urmilaben to marry him or else he would kill
Urmila. It is the prosecution case that on account of such persistent
threats being administered to her by the accused, she decided to end
her life as she did not like to marry the accused. Ultimately, on
13/3/2006 while she was all alone in her home, she poured kerosene on
her body and set her to fire. She was immediately rushed to a
hospital where, initially upon the message being conveyed by the
Medical Officer to the concerned police station, PW 16 Mr. B J
Savaliya, the Executive Magistrate recorded the DD of the deceased.
Thereafter, FIR lodged by the deceased came to be recorded.
4. Further,
perusing the impugned judgment and order rendered by the trial Court,
so also considering the evidence of the witnesses examined by the
prosecution, it clearly transpires that at the time when Urmilaben
was admitted in the hospital, at that time PW 2 Dr. Sagathiya
examined her and recorded history of deceased Urmilaben. According to
the evidence of Dr. Sagathiya, so also considering the certificate
issued by him, it transpires that Urmilaben gave history about her
burn injuries to Dr. Sagathiya that she was finding difficulty in her
study and, therefore, decided to end her life. Moreover, considering
the evidence of PW 16 Mr. B J Savaliya, the Executive Magistrate,
who recorded the DD of the deceased, so also considering the DD, it
further appears that according to deceased Urmilaben, at the relevant
time she was studying in Standard XI and she was under tremendous
tension of study and, therefore, she poured kerosene on her body and
set her to fire. It is further pertinent to note that her FIR came to
be recorded by the concerned Police Officer after deceased Urmilaben
had given aforementioned history regarding her burn injuries before
the Medical officer, so also her regular DD came to be recorded by
the Executive Magistrate. In the FIR, Urmilaben explained her burn
injuries that the accused insisted to marry him or else he would
kill her and, therefore, she attempted to commit suicide. As observed
by the trial Court in the impugned judgment, all the family members
were knowing that the Executive Magistrate had recorded DD of the
deceased. Thereafter, police came to the hospital to record FIR of
the deceased. The family members and the relative witnesses stated in
their evidence that at the time when the police recorded FIR, they
all were present. PW 14 Dhaniben in her evidence categorically
stated that one Jethabhai dictated the FIR and accordingly, the
police recorded it. She further stated that since Urmilaben had
sustained burn injuries, only her thumb impression was taken below
the FIR.
5. Appreciating
and evaluating the oral and documentary evidence on record, the trial
Court ultimately came to the conclusion that the prosecution failed
to prove its case that Urmilaben committed suicide on account of the
instigation and abetment provided by the accused. Re-examining and
re-appreciating the evidence on record, we do not find any reason to
interfere with the impugned judgment and order of acquittal rendered
by the trial Court. The appeal, therefore, lacks merits and does not
require admission.
6. Further
more, it is well settled that when two views are possible, one
leading to the innocence of the accused and other leading to the
guilt of the accused, the view leading to the innocence of the
accused is required to be accepted. Resultantly, the application
seeking leave to prefer appeal and the appeal deserve dismissal.
7. For
the foregoing reasons, both, the application seeking leave to prefer
appeal and the appeal stand dismissed.
[
D.H. WAGHELA, J. ]
[
J.C. UPADHYAYA, J.]
*
Pansala.
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