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CR.A/7720/2001 10/ 10 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
APPEAL No. 77 of 2001
For
Approval and Signature:
HONOURABLE
MR.JUSTICE BHAGWATI PRASAD
HONOURABLE
MR.JUSTICE BANKIM.N.MEHTA
=========================================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ? No.
2
To
be referred to the Reporter or not ? No.
3
Whether
their Lordships wish to see the fair copy of the judgment ? No.
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ? No.
5
Whether
it is to be circulated to the civil judge ? No.
=====================================================
SONALBEN
SASHIKANT BHATT - Appellant(s)
Versus
STATE
OF GUJARAT - Opponent(s)
=====================================================
Appearance :
MR
BC DAVE for Appellant(s) : 1 - 2.
MS HANSABEN PUNANI APP for
Opponent(s) :
1,
=====================================================
CORAM
:
HONOURABLE
MR.JUSTICE BHAGWATI PRASAD
and
HONOURABLE
MR.JUSTICE BANKIM.N.MEHTA
Date
: 14/11/2008
ORAL
JUDGMENT
(Per
: HONOURABLE MR.JUSTICE BANKIM.N.MEHTA)
1. The
appellants convicts have preferred the present appeal u/s 374 (2)
of the I.P. Code challenging judgment and order of conviction and
sentence dated 17-1-2001 rendered by learned Addl. Sessions Judge,
City Sessions Court, Ahmedabad in Sessions Case No. 12 of 1997
convicting them for the offence punishable u/s 302 read with
Section 34 of the I.P. Code and sentencing them to undergo
sentence of life imprisonment and to pay fine of Rs.1000/-, in
default thereof, to undergo further sentence of six months’ Rigorous
Imprisonment.
2. In
brief, the prosecution case is that deceased Savitaben Triloksing
was the sister of appellant Surendrakumar and accused Laxmiben
Surendrakumar was the wife of appellant Surendrakumar. Savitaben
was residing in the house of her sister Pushpaben Narendrakumar and
appellant Surendrakumar and his wife Laxmiben were residing behind
her house and were picking up frequent quarrels with Savitaben as to
why she came to reside there. Appellant Sonalben was tenant of
appellant Surendrakumar. On 23-5-1996 at about 6-00 in the evening
when Savitaben was sitting on otala , Laxmiben came there and
started abusing her. As Savitaben told her not to give abuses,
Laxmiben got enraged and brought kerosene container. Appellant
Sonalben caught hold of deceased Savitaben and Laxmiben poured
kerosene over her. At that time, appellant Surendrakumar came there
and ignited matchstick. Nitaben the daughter of the deceased, her
sister Pushpaben and other persons came there and extinguished the
fire. Savitaben was taken to the hospital and she lodged a
complaint. During treatment, Savitaben succumbed to her injuries.
3. On
the basis of the complaint filed by Savitaben investigation was
started. At the end of investigation charge sheet came to be filed
against the accused for the offence punishable u/s 302 and 34 of
the I.P. Code. As the offence was triable by Sessions Court, the
case was committed to the City Sessions Court, Ahmedabad and it was
registered as Sessions Case No. 12 of 1997. Learned Additional
Sessions Judge, Court No.17, City Sessions Court, Ahmedabad framed
charge Exh. 1 for the offence punishable u/s 302 read with section 34
of the I.P. Code. The accused pleaded not guilty and claimed to be
tried and hence the prosecution adduced evidence to prove the
charge.
4. On
completion of recording of evidence, the learned trial Judge
explained to the accused the incriminating circumstances appearing
against them in the evidence. The accused in their further
statement recorded u/s 313 of the Code of Criminal Procedure, 1973
stated that they have not committed the offence and they have been
falsely implicated in the offence. The accused also examined defence
witnesses.
5. During
pendnecy of trial, accused Laxmiben Surendrakumar Varma died and
hence the case stood abated against her.
6. After
hearing the learned A.P.P. for the State and learned advocate for the
accused, the trial Court convicted the accused and sentenced them
to undergo sentence as mentioned hereinabove. Being aggrieved by
the said decision, the accused have preferred the present appeal.
7. We
have heard learned advocate Mr. B.C. Dave for the appellants and
learned A.P.P. Ms. Hansaben Punani for the respondent State at
length and in great detail. We have also perused the impugned
judgment and records and proceeding of the trial court.
8. Learned
advocate for the appellants mainly submitted that there were
disputes between the appellant and the deceased and there is no
independent evidence to connect the accused in the offence.
Appellant Sonalben was not concerned with the dispute and she is
falsely implicated. He has also submitted that there is no evidence
to connect the accused with the offence. Therefore, the impugned
judgment is erroneous and it deserves to be set aside.
9. Learned
A.P.P. Ms. Hansaben Punani submitted that the prosecution has proved
the case beyond reasonable doubt by reliable evidence. Therefore,
no interference is warranted in the impugned judgment and the
appeal deserves to be dismissed.
10. The
prosecution mainly relied upon First Information Report lodged by the
deceased, her dying declaration recorded by the Executive
Magistrate, and history of her injuries given by the deceased to
the Doctor.
11. After
the incident Savitaben was taken to the hospital for treatment. The
Doctor who treated her, recorded the history of burn injuries in the
case papers given by Savitaben. The prosecution examined the Doctor
P.W. 7 Dr. Bharatkumar Shankerlal Dave at Exh. 32. According to the
witness, when Savitaben was brought to hospital for treatment, she
gave history of her injuries. According to him, history of her burn
injuries was recorded in the case papers Exh.33. The prosecution
produced case papers at Exh. 33. It appears from the case papers
that Savitaben in the history of burn injuries stated that her
brother and her brother’s wife set her on fire. Therefore, it is
clear that at the first opportunity, after the incident, Savitaben
implicated appellant Surendrakumar in the offence alleging that he
along with his wife set her on fire. The case papers also indicate
that Savitaben was conscious. There is nothing to indicate that false
history was recorded.
12. The
prosecution also examined P.W.1 Jagdish Sundarlal, the Executive
Magistrate who recorded dying declaration at Exh. 8. According to
the witness, before recording dying declaration, he ascertained as to
whether the patient was conscious or not. The witness also inquired
from the Doctor about the same who informed him that the patient
was conscious and so he started recording dying declaration. The
dying declaration is in the form of questions and answers. It was
recorded between 09-50 and 10-15 at night on 23-5-1996. At the end
of declaration, there is an endorsement made by the Doctor at 10-05
p.m. that the patient was conscious and was able to speak. The
Executive Magistrate also made an endorsement that the patient was
conscious. Dying Declaration Exh. 10 indicates that accused Laxmiben
poured kerosene on the declarant and appellant Surendrakumar
ignited match-stick. It also indicates that appellant Sonalben who
was with them also burnt her. It emerges from the dying declaration
that before recording the dying declaration, the Executive
Magistrate ascertained that the patient was conscious and was able
to give account of her burn injuries. The Doctor also made
endorsement that the patient was conscious and was able to speak.
There is nothing to indicate that Savitaben was not in fit state of
mind to give account of her burn injuries or that it was tutored.
The defence has not been able to point out any infirmity in it. It
clearly indicates the role played by appellant Surendrakumar in
setting the deceased on fire. Therefore, learned trial Judge was
justified in relying upon the dying declaration. However, as regards
appellant Sonalben is concerned, except that she was with appellant
Surendrakumar no active role is attributed to her in commission of
the offence. Therefore, appellant Sonalben cannot be connected with
the offence on the basis of dying declaration.
13. The
prosecution also produced First Information Report lodged by
Savitaben, at Exh. 20. It is alleged that appellant Sonalben caught
hold of her, accused Laxmiben poured kerosene and appellant
Surendrakumar ignited match-stick and set her on fire. It is true
that F.I.R. implicates both the appellants but on scrutiny of
evidence, it appears that there are discrepancies with regard to act
attributed to appellant Sonalben. In the history given before the
Doctor, Savitaben has not stated about appellant Sonalben. In the
dying declaration she has stated that appellant Sonalben set her on
fire whereas in the F.I.R. the deceased has alleged that
appellant Sonalben caught hold of her. In view of this, the
prosecution case for appellant Sonalben becomes doubtful.
14. As
regards appellant Surendrakumar, F.I.R., history before the Doctor
and dying declaration, in detail, describes the role played by him in
the offence. All these documents consistently state that he was
responsible for the burn injuries. Therefore, it is difficult to
believe that he was not involved in the offence.
15. The
prosecution examined Dr. Madhusudan Atmaram Patel at Exh. 16 who
performed postmortem, at Exh.16 and also produced postmortem report
at Exh. 17. Postmortem report Exh. 17 indicates that the deceased
had sustained burn injuries and the cause of death was septicaemia
as a result of burn injuries. In light of this, it is proved beyond
reasonable doubt that the injuries sustained by the deceased were
homicidal in nature.
16. The
appellants have examined defence witnesses D.W.1 Pushpaben
Narendrakumar Exh. 44, D.W.2 Nitaben Triloksinh Exh. 46, D.W. 3
Saraswatiben Ramkishan Exh. 48 and D.W. 4 Murlidhar Nathmal Sevani
Exh. 52. D.W.1. Pushpaben Narendrakumar is the sister of
deceased Savitaben. She has stated that she does not know as to how
Savitaben sustained burn injuries. D.W.2 Nitaben Triloksinh Exh.
44 is the daughter of deceased Savitaben. She has tried to support
the defence version. It appears from her evidence that when the
witness and her brother were standing outside their house,
Savitaben came out in burning condition. Therefore the witness was
not present at the time of the occurrence. Similarly, D.W. 3
Saraswatiben Ramkishan Exh. 48 and D.W. 4 Murlidhar Nathmal Sevani
Exh. 52 have stated that they do not know as to how Savitaben
sustained burn injuries. Therefore, the defence witnesses do not
render any support to the accused.
17. In
view of above, the dying declaration in the form of F.I.R., history
of burn injuries given by the deceased to the Doctor and the dying
declaration recorded by the Executive Magistrate are consistent and
implicate appellant Surendrakumar. Therefore, learned trial Judge was
justified in relying upon such evidence and no interference is
warranted in the impugned judgment convicting and sentencing
appellant Surendrakumar. As regards appellant Sonalben is concerned,
the prosecution evidence is shaky. There are glaring discrepancies
in the evidence. Therefore, appellant Sonalben is required to be
acquitted by giving benefit of doubt.
18. In
the result, the present appeal is partly allowed, The judgment and
order of conviction and sentence of appellant
No. 2 Surendrakumar @ Kakubhai Ramkishan Varma passed on
17-01-2001 by learned Addl. Sessions Judge, City Sessions Court,
Ahmedabad in Sessions Case No.12 of 1997 for the offence punishable
u/s 302 of the I.P. Code is confirmed.
19. So
far as appellant No. 1 Sonalben Sashikant Bhatt is concerned,
judgment and order convicting and sentencing her passed on
17-01-2001 by learned Addl. Sessions Judge, City Sessions Court,
Ahmedabad in Sessions Case No.12 of 1997 for the offence punishable
u/ss 302 read with Section 34 of the I.P. Code is set aside and she
is acquitted of the charge levelled against her. She is on bail,
hence her bail bond stands cancelled. Fine, if paid, be returned to
her.
The
muddamal be disposed of as directed by the trial court.
(Bhagwati
Prasad, J.)
(Bankim
N. Mehta, J.)
/JVSatwara/
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