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CR.MA/10296/2010 8/ 8 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
MISC.APPLICATION No. 10296 of 2010
In
CRIMINAL
APPEAL No. 1522 of 2010
=========================================================
STATE
OF GUJARAT - Applicant(s)
Versus
PREMIBEN
W/O NATHABHAI DUDABHAI LADVA - Respondent(s)
=========================================================
Appearance
:
MS.C.M.SHAH,
ADDL.PUBLIC
PROSECUTOR for
Applicant(s) : 1,
None for Respondent(s) :
1,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE D.H.WAGHELA
and
HONOURABLE
MR.JUSTICE J.C.UPADHYAYA
Date
: 07/07/2011
ORAL
ORDER
(Per
: HONOURABLE MR.JUSTICE J.C.UPADHYAYA)
The
applicant-appellant State filed this application seeking leave to
prefer appeal challenging the judgment and order dated 13.05.2010
rendered by Learned Sessions Judge, Porbandar, in Sessions Case No.
27/2008 whereby the opponent, who was original accused in the
aforementioned Sessions Case came to be acquitted of the offences
punishable under Sections 498(a) and 306 of Indian Penal Code.
Heard
Learned Additional Public Prosecutor Ms.C.M.Shah, for the
applicant-State and perused the impugned judgment and order rendered
by the Trial Court and the relevant papers.
Learned
Additional Public Prosecutor Ms.C.M.Shah, submitted that the
prosecution successfully proved its case beyond any reasonable doubt
and the prosecution case was established not only by the oral
testimony of the witnesses but even by documentary evidence. It is
submitted that the respondent-accused happened to be mother in law
of the deceased and the incident occurred on 10.04.2007 whereby the
deceased committed suicide by setting her to fire. She married the
son of the respondent-accused prior to about 3 years from the date
of the incident. That it has been established that on account of
physical and mental torture caused by her mother-in-law-accused, the
deceased committed suicide.
Learned
Additional Public Prosecutor Ms.C.M.Shah, submitted that it is true
that in her dying declaration recorded by the competent officer, the
deceased stated that she sustained burn injuries by accident.
However, it has come in evidence that she died on dated 18.04.2007
and on that day, she had orally told the complainant who happened to
be her uncle that in fact, there was no accident but because of the
persistent torture and cruelty meted out to her by her mother in
law, she of her own poured kerosene on her body and ablazed herself.
That, therefore, the prosecution successfully proved by virtue of
the evidence in the form of oral dying declaration its case beyond
reasonable doubt. It is submitted that the appeal be admitted.
On
bare perusal of the impugned judgment and order rendered by the
Trial Court, the prosecution case mainly rests upon the evidence of
complainant Naranbhai Jadavbhai Tank who happened to be uncle of the
deceased. The prosecution also examined Pushpaben Arshibhai Tank as
witness who is mother of the deceased. The prosecution examined
witnesses viz. Kusumben, Dineshbhai, Laljibhai and Vitthalbhai who
happened to be relatives of the deceased. There is no dispute that
on 10.04.2007, the deceased sustained burn injuries and she was
immediately brought to the hospital by her in-laws and that while
she was under treatment, she succumbed to her burn injuries on
18.04.2007. It further transpires that on 10.04.2007 itself, Dy.S.P.
recorded the statement of the deceased Exh.25 and there is also no
dispute that in the statement Exh-25, deceased stated that she
accidentally sustained the burn injuries. It also transpires that
from 10.04.2007 to 17.04.2007, even the deceased orally told all her
relatives that she sustained burn injuries on account of accident.
Now, as per the evidence of complainant Naranbhai Jadavbhai Tank who
was examined at Exh.13, he deposed that on 18.04.2007 when he went
to hospital, Ushaben, the deceased told him that, in fact, she did
not sustain burn injuries in an accident, but, on account of
physical and mental torture and cruelty meted out to her by the
accused (her mother-in-law), she poured kerosene on her body and set
her to fire.
In
the impugned judgment, first of all in Para-9, the Trial Court
elaborately discussed medical evidence on record and appreciated the
evidence of medical officer who conducted P.M. on the body of the
deceased. It is pertinent to note that in his cross-examination
regarding the burn injuries, specific question was asked on behalf
of the accused as to whether the burn injuries were accidental
injuries or were such, which can be caused at the time of suicide,
to which the medical officer specifically replied that looking to
the burn injuries, it was not possible to say as to whether it was
accidental burn injuries or suicidal burn injuries.
Further
more, in the impugned judgment, the Trial Court at great length
discussed the oral evidence of the complainant who is uncle of the
deceased, mother of deceased and other relative witnesses and
observed that the oral testimony of the complainant that on
18.04.2007, the deceased told him that in fact, she attempted to
commit suicide and the burn injuries were not accidental injuries,
cannot be said to have been proved by the prosecution beyond any
reasonable doubt. The Trial Court observed that the witnesses were
aware about the previous statement made by the deceased before the
competent officer and even regarding oral dying declaration earlier
made pertaining to the accidental burn injuries. Yet, on 18.04.2007,
when the deceased made alleged oral dying declaration about the
attempted suicide, complainant would have immediately reported about
it to the medical officer and to the police, but, nothing whatsoever
was done.
The
Trial Court further observed that according to the evidence of
mother and other relative witnesses, on 18.04.2007, the deceased
made the oral dying declaration in their presence but considering
the evidence of the complainant, when the deceased made the oral
dying declaration, only he was present. Moreover, it further emerges
from the evidence on record that the deceased along with her husband
was residing separately and the accused was not residing with them.
In
the above view of the matter, the Trial Court after appreciating and
analyzing the entire oral and documentary evidence in great detail,
ultimately, came to the conclusion that the prosecution failed to
prove its case beyond any reasonable doubt against the
respondent-accused and that she deserved benefits of doubt. We do
not find any infirmity or any error committed by the Trial Court
while appreciating the evidence adduced by the prosecution in this
case and ultimately, coming to the conclusion that the prosecution
case was not proved beyond any reasonable doubt.
Under
such circumstances, no interference by this Court in the impugned
judgment and order is warranted. The application seeking leave to
prefer appeal, therefore, deserves to be dismissed.
It
is well settled that if two views are possible one leading to the
innocence of the accused and another leading to the guilt of the
accused, the view leading to the innocence of the accused is
required to be accepted. Thus, in the instant case, the application
seeking leave to prefer appeal deserves to be dismissed.
Consequently,
appeal is not required to be admitted and deserves to be dismissed
in limine.
For
the foregoing reasons, the application seeking leave to prefer
appeal and the appeal stand dismissed.
(D.H.WAGHELA, J.)
(J.C.UPADHYAYA,
J.)
Girish
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