{"id":97797,"date":"2008-08-08T00:00:00","date_gmt":"2008-08-07T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/maheshbhai-vs-appearance-on-8-august-2008"},"modified":"2015-07-12T05:05:59","modified_gmt":"2015-07-11T23:35:59","slug":"maheshbhai-vs-appearance-on-8-august-2008","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/maheshbhai-vs-appearance-on-8-august-2008","title":{"rendered":"Maheshbhai vs Appearance on 8 August, 2008"},"content":{"rendered":"
Gujarat High Court<\/div>\n
Maheshbhai vs Appearance on 8 August, 2008<\/div>\n
Author: A.M.Kapadia,&Nbsp;Honourable Mr.Justice Z.K.Saiyed,&Nbsp;<\/div>\n
   Gujarat High Court Case Information System \n\n  \n  \n    \n\n \n \n    \t      \n         \n\t    \n\t\t   Print\n\t\t\t\t          \n\n  \n\n\n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t\n\n\n \n\n\n\t \n\nCR.A\/581\/2001\t 17\/ 19\tJUDGMENT \n \n \n\n\t\n\n \n\nIN\nTHE HIGH COURT OF GUJARAT AT AHMEDABAD\n \n\n \n\n\n \n\nCRIMINAL\nAPPEAL No. 581 of 2001\n \n\n \nFor\nApproval and Signature:  \n \nHONOURABLE\nMR.JUSTICE A.M.KAPADIA  \nHONOURABLE\nMR.JUSTICE Z.K.SAIYED\n \n \n=========================================================\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n1\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\tReporters of Local Papers may be allowed to see the judgment ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n2\n\t\t\n\t\t \n\t\t\t \n\nTo be\n\t\t\treferred to the Reporter or not ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n3\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\ttheir Lordships wish to see the fair copy of the judgment ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n4\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\tthis case involves a substantial question of law as to the\n\t\t\tinterpretation of the constitution of India, 1950 or any order\n\t\t\tmade thereunder ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n5\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\tit is to be circulated to the civil judge ?\n\t\t\n\t\n\n \n\n=========================================================\n\n \n\nMAHESHBHAI\nDHANJIBHAI PARMAR - Appellant(s)\n \n\nVersus\n \n\nSTATE\nOF GUJARAT - Opponent(s)\n \n\n=========================================================\n \nAppearance\n: \nTHROUGH\nJAIL for Appellant(s)\n: 1,MR JM BUDDHBHATTI for Appellant(s) : 1, \nMR. K.C.SHAH,\nASSISTANT PUBLIC PROSECUTOR for Respondent(s) :\n1, \n=========================================================\n\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\nCORAM\n\t\t\t: \n\t\t\t\n\t\t\n\t\t \n\t\t\t \n\nHONOURABLE\n\t\t\tMR.JUSTICE A.M.KAPADIA\n\t\t\n\t\n\t \n\t\t \n\t\t \n\t\t\t \n\nand\n\t\t\n\t\n\t \n\t\t \n\t\t \n\t\t\t \n\nHONOURABLE\n\t\t\tMR.JUSTICE Z.K.SAIYED\n\t\t\n\t\n\n \n\nDate\n: 8\/08\/2008 \n\n \n\nORAL\nJUDGMENT<\/pre>\n
(Per
\n: HONOURABLE MR.JUSTICE A.M.KAPADIA)<\/p>\n
\tChallenge
\n\tin this Appeal under Section 374 of the Code of Criminal Procedure
\n\t(?Sthe Code?? for short) is to the correctness of the judgment and
\n\torder dated 4.7.2001 rendered in Sessions Case No. 101 of 1999 by
\n\tthe learned Additional Sessions Judge, Bharuch, by which the sole
\n\tAppellant (?Sthe Accused?? for short) has been convicted for
\n\tcommission of the offence punishable under Section 302 of the Indian
\n\tPenal Code (?SIPC?? for short) and sentenced to suffer
\n\timprisonment for life and fine of Rs.5000\/- in default of payment of
\n\tfine to undergo further RI for 3 years.\n<\/p>\n
The
\n\tprosecution case as disclosed from FIR, which is in the nature of
\n\tdying declaration and the dying declaration recorded by the
\n\tExecutive Magistrate,  and unfolded during trial is as under:\n<\/p>\n
\t(i)\tIt
\n\tis the case of the prosecution that deceased Jashodaben gave her
\n\tstatement before PW-15 Kanjibhai Roopjibhai Parmar, PSI, Jhagadiya
\n\tPolice Station, while she was in Bharuch Civil Hospital for
\n\ttreatment on account of burn injuries,  wherein, inter alia it is
\n\talleged that she is residing with her children at Jhagadia Motaval
\n\tFaliya, Jhagadia and was doing miscellaneous labour and household
\n\twork.  Her marriage was performed with Khushalbhai Fulabhai Motala
\n\t17 years back.  She has two sons named Rohan and Nilesh and two
\n\tdaughters named Daxa and Pragna.  Her husband Khushalbhai Fulabhai
\n\thad expired two years prior to incident due to heart attack.  One
\n\tMahesh Dhanji Parmar, aged 25 years, residing opposite to her house,
\n\tcame in contact with her and used to visit her house.  He is also
\n\tdoing miscellaneous labour work.  He proposed her to marry him by a
\n\tsimple ceremony of ?Sful-har?? and thereby set up a house.  She
\n\ttold him that her sons and daughters have become major and yet they
\n\tare not married.  So he may find a girl and marry.  He did not agree
\n\tand of and on pressurized her to marry.  She tried to persuade him
\n\tnot to come to her house.  However, he was visiting her house by
\n\tconsuming liquor.  He was quarreling with her on this issue in
\n\tpresence of her daughters and was beating her.  She very much tried
\n\tto persuade him but he did not agree. On 31.1.1999 (Sunday), Mahesh
\n\tDhanji came in drunken condition to her house at about 9:30  or
\n\t10:00 in the night.  He told her ?Shave I prepared his food??.
\n\tShe informed ?Swhy should she prepare his food??.  She had
\n\tnothing.  Then she prepared something and gave it to her children
\n\tand made them to sleep.  He quarreled by saying ?Syou have prepared
\n\tfood for your children and why  not for me??.  He became angry.  He
\n\tsaid that she does not want to marry him and so she has not prepared
\n\this food.  Thus he gave her two to four slaps and said he shall set
\n\ther on fire as she has not prepared his food.  She also said ?Slet
\n\tme see how you set me on fire??.  She felt that he is speaking in
\n\tdrunken condition and would do nothing.  Then he opened the cover of
\n\tthe stove in the kitchen and sprinkled kerosene on her body and
\n\tshoulder by holding her hand.  At that time also she felt that he
\n\twas threatening her and would not set her on fire.  So she did not
\n\tprotest.  Mahesh became very much angry after sprinkling the
\n\tkerosene.  He lightened a match-stick from a match box and threw on
\n\ther.  So, it was a sudden fire.  She had put on a polyester gown
\n\twhich caught fire.  She started burning.  Mahesh left her hand.  She
\n\tstarted shouting.  Her children got up by hearing her shouts and
\n\tstarted weeping.  At that time Mahesh threw small mattresses on her
\n\tand tried to extinguish the fire.  Out of her two daughters, one
\n\tdaughter brought water and poured on her body.    The fire was
\n\textinguished.  This incident of setting fire happened in her
\n\tkitchen.  She ran towards the bedroom from the kitchen after the
\n\tfire and fell down near the cupboard.  Her daughters also poured
\n\twater on her and tried to save her.  Mahesh came to her house in the
\n\tnight after her children slept.  There was altercation in the
\n\tkitchen for about thirty to forty five minutes and then kerosene was
\n\tsprinkled on her and she was set on fire.  When Mahesh came to her
\n\thouse, the door was closed.  He entered from the back side and set
\n\ther on fire.  Her children awakened on hearing the shouts and poured
\n\twater on her and opened the front door of her house. People rushed
\n\tto her house.  Though the mattresses were thrown on her body, the
\n\tfire did not extinguish and Mahesh ran away from the back door.  On
\n\treceiving this news, her Jethani (wife of her husband’s elder
\n\tbrother) and elder son Dinesh, residing near her house, rushed
\n\tthere.  They took her to Jaghadia referral hospital, where only a
\n\tpeon was available, who told the son of her Jeth (Husband’s
\n\telder brother) to take her to Civil Hospital, Bharuch immediately
\n\tand to get her admitted immediately.  Thus they have brought her in
\n\tCivil Hospital in Bharuch and admitted her.  She is under the
\n\ttreatment.  At the time when she gave statement before PW-15
\n\tKanjibhai Roopjibhai Parmar, PSI, she was conscious and she has
\n\tstated the aforesaid facts in full sound state of mind.  Mamlatdar
\n\thas recorded her statement and she has stated the facts in reply to
\n\this query.\n<\/p>\n
\t(ii)
\n\t The aforesaid complaint was recorded by PW-15 Kanjibhai Roopjibhai
\n\tParmar in Bharuch Civil Hospital and beneath the same he has
\n\tobtained thumb impression of Jashodaben. The said statement is on
\n\trecord at Exh. 39.  Prior to recording of the statement, PW-15 had
\n\talready started investigation. During the course of investigation he
\n\thas drawn the panchnama of the scene of offence and recorded the
\n\tstatements of four eyewitnesses.  He has arrested the Accused after
\n\tdrawing the panchnama of his person and the clothes were also
\n\trecovered from him. During the course of treatment Jashodaben died.
\n\t Thereafter, he has received the vardi from the PSO that Jashodaben
\n\thad died and therefore, he has added the offence of murder
\n\tpunishable under Section 302 IPC.  The extract of the said station
\n\tdiary is on record at exh.40.  Thereafter he has entrusted the
\n\tinvestigation to PW-16 Yakubbhai Emroz Bhatiya, PSI.  After taking
\n\tover the investigation, he has held the inquest on the dead body of
\n\tJashodaben and sent the same for PM.  He has also obtained the dying
\n\tdeclaration recorded by the Executive Magistrate and sent the
\n\tmuddamal to FSL for chemical analysis.\n<\/p>\n
\t(iii)\tAfter
\n\treceipt of the PM report, FSL report and the dying  declaration
\n\trecorded by the Executive Magistrate, as sufficient incriminating
\n\tevidence was found against the Accused for commission of the offence
\n\tpunishable under Section 302 IPC, he filed charge sheet in the Court
\n\tof learned JMFC, Jhagadia.\n<\/p>\n
\t(iv)\t\tAs
\n\tthe offence under Section 302 is exclusively triable by the Court of
\n\tSessions, the learned JMFC, Jhagadia committed the case to the Court
\n\tof Sessions, Bharuch. The learned Additional Sessions Judge, to whom
\n\tthe case was made over for trial, framed charge against the Accused
\n\tfor commission of the offence punishable under Section 302 IPC.\n<\/p>\n
\t(v)\t\tThe
\n\tcharge was read over and explained to the Accused.  The Accused
\n\tpleaded not guilty to the charge and claimed to be tried.
\n\tTherefore, he was put to trial by the learned Additional Sessions
\n\tJudge, Bharuch in Sessions Case No. 101 of 1999.\n<\/p>\n
\t(vi)\t\tIn
\n\torder to bring home the charge leveled against the Accused, the
\n\tprosecution has examined in all 16 witnesses and relied upon their
\n\toral testimony, details of which have been narrated in paragraph 5
\n\tof the impugned judgment and order.\n<\/p>\n
\t(vii)\tTo
\n\tprove the culpability of the Accused, the prosecution has also
\n\tproduced in all 12 documents and relied upon the contents of the
\n\tsame, the details of which are mentioned in paragraph 6 of the
\n\timpugned judgment and order.\n<\/p>\n
\t(viii)\t\tAfter
\n\trecording of evidence of the prosecution witnesses was over, the
\n\ttrial Court explained to the Accused, the circumstances appearing
\n\tagainst him and recorded his further statement under Section 313 of
\n\tthe Code. In his further statement, the Accused denied the case of
\n\tthe prosecution in its entirety. He has stated that a false case has
\n\tbeen filed against him.  However, he has neither led any
\n\tevidence nor examined any witness in support of his defence.\n<\/p>\n
\t(ix)\t\tOn
\n\tappreciation, evaluation, analysis and scrutiny of the evidence on
\n\trecord, the trial Court came to the conclusion that the Accused has
\n\tsprinkled kerosene on deceased Jashodaben and set her ablaze to
\n\tcause her death.  The prosecution has proved that Jashodaben died a
\n\thomicidal death as the Accused has sprinkled kerosene on the
\n\tdeceased Jashodaben and set her ablaze to cause her death, on the
\n\tbasis of the two DDs, one in the form of a complaint at Exh. 39 and
\n\tthe another recorded before the Executive Magistrate at exh.12 as
\n\twell as eyewitnesses.    Thus the involvement of the Accused for
\n\tcommission of the the offence of murder of Jashodaben under Section
\n\t302 has been proved by the prosecution beyond reasonable doubt.\n<\/p>\n
\t(x)\t\tThe
\n\tprosecution has also proved the motive behind the murder, as the
\n\tdeceased Jashodaben refused to marry the Accused and therefore, the
\n\tAccused was minded to kill her, therefore, there was a knowledge as
\n\twell as the intention of doing the act by the Accused.\n<\/p>\n
\t(xi)\t\tOn
\n\tthe aforesaid finding, the trial Court has convicted the Accused for
\n\tcommission of the offence punishable under Section 302 IPC and
\n\tsentenced to suffer imprisonment for life and fine of Rs.5000\/- in
\n\tdefault to undergo further RI of 3 years, giving rise to instant
\n\tAppeal at the instance of Accused, which has been filed by the
\n\tAccused through the jail authorities.\n<\/p>\n
\tMr.\n<\/p>\n
\tJ.N.Buddhbhatti, learned advocate of the Accused has submitted that
\n\tthe case of the prosecution is based on two DDs as well as four eye
\n\twitnesses.  However, looking to the burn injuries, it is doubtful
\n\twhether deceased was physically and mentally fit to give the DDs.
\n\tIt was not possible for her to give the DD, therefore, she was unfit
\n\tto give the DD.  So far as eyewitnesses are concerned, they are the
\n\tfamily members of deceased Jashodaben and they dislike the Accused
\n\tas the Accused wanted to marry their mother Jashodaben, therefore
\n\tpossibility of falsely ropping the Accused in the murder of
\n\tJashodaben cannot be ruled out, therefore, no reliance can be placed
\n\ton the oral testimony of those eyewitnesses.  He, therefore,
\n\tsubmitted that both the DDs are got up with a view to falsely rope
\n\tthe Accused in the offence of murder. He, therefore urged that the
\n\timpugned judgment and order suffers from non-appreciation of
\n\tevidence in its proper perspective,  the same therefore, deserves to
\n\tbe quashed and set aside by allowing this Appeal and thereby
\n\tacquitting the Accused of the offence with which he was charged. \u00a0\n<\/p>\n
\tIn
\n\tcounter submission, Mr. K.C.Shah, learned APP for the Respondent ?
\n\tState of Gujarat has supported the impugned judgment and order by
\n\tcontending that there is no infirmity or illegality committed by the
\n\ttrial Court in appreciating the evidence of two sets of dying
\n\tdeclarations; one in the form of a complaint (exh. 39) and another
\n\trecorded by PW-15 Executive Magistrate at exh.12. It is also
\n\temphasized by him that there are four eyewitnesses and there is no
\n\treason to discard their oral testimony. They saw the Accused
\n\tsprinkling kerosene and setting their mother Jashodaben ablaze by
\n\tthe Accused.  He, therefore, urged to dismiss the Appeal by
\n\tconfirming the judgment and order of conviction and sentence
\n\trecorded against the Accused by the trial Court.\n<\/p>\n
\tThis
\n\tCourt has considered the submissions advanced by the learned
\n\tadvocates appearing for the parties and perused the impugned
\n\tjudgment and order. This Court has undertaken a complete and
\n\tcomprehensive appreciation of all vital features of the case and the
\n\tentire evidence on record, which is read and re-read by the learned
\n\tadvocates of the parties with reference to broad and reasonable
\n\tprobabilities of the case.  This Court has examined the entire
\n\tevidence on record for itself independently of the learned Judge of
\n\tthe trial Court and considered the arguments advanced on behalf of
\n\tthe Accused and infirmities pressed, scrupulously with a view to
\n\tfind out as to whether the trial Court has rightly recorded the
\n\torder of conviction and sentence.\n<\/p>\n
\tThere
\n\tis no dispute to the fact that deceased Jashodaben had died an
\n\tunnatural death due to burn injuries. To prove this fact, the
\n\tprosecution has examined and relied upon the oral testimony of PW-13
\n\tDr. Sunil Dattarav, who has performed the PM on the dead body of
\n\tJashodaben and issued PM report, which is on record at Exh.35.  A
\n\tconjoint reading of oral testimony of Dr. Sunil Dattarav at Exh. 33
\n\tand the PM report, it is seen that in his evidence PW-13, has inter
\n\talia testified that deceased Jashodaben had received extensive burn
\n\tinjuries and died because of shock following extensive burn
\n\tinjuries.  Therefore, it has to be held that deceased Jashodaben had
\n\tdied an unnatural death because of burn injuries received by her.\n<\/p>\n
\tAs
\n\tper the prosecution case, deceased Jashodaben had died a homicidal
\n\tdeath because the Accused has sprinkled kerosene on Jashodaben and
\n\tset her ablaze.  To prove this fact, the prosecution mainly relied
\n\tupon 2 sets of DDs, one in the form of a complaint at Exh.39 and the
\n\tanother recorded by the Executive Magistrate at Exh.12.  As well as
\n\tfour eyewitnesses.\n<\/p>\n
\tBefore
\n\tappreciating the evidence of the witnesses, before whom the dying
\n\tdeclarations were made by the deceased, it would be relevant to
\n\tnotice the law relating to dying declaration.  In case of  Paniben
\n\tv\/s State of Gujarat, 1993 (2) GLR, 985,
\n\tthe Supreme Court has formulated the principle laid down in several
\n\tjudgments of the Supreme Court governing dying declarations.    A
\n\tDivision Bench of this Court in the case of  State
\n\tof Gujarat v. Maniben,<\/a> 2001 (2) GLR 1749,
\n\thas very succinctly stated the law in this regard as under:\n<\/p>\n
?SSection
\n32(1) of the Evidence Act, 1872 is an exception to the general rule
\nthat hearsay evidence is not admissible evidence or that unless
\nevidence is tested by cross-examination, it is not
\ncredit-worthy. Under section 32(1) when a statement is made by a
\nperson as to the cause of death or as to any of the circumstances,
\nwhich result in his death, in cases in which the cause of that
\nperson?”s death comes into question, such a statement, oral or in
\nwriting made by the deceased to the witness is a relevant fact and is
\nadmissible in evidence. The statement made by the deceased called the
\ndying declaration, falls in that category provided it has been made
\nin a fit mental condition. It is well settled that conviction can be
\nbased on the dying declaration itself provided it is satisfactory and
\nreliable. If there are more than one dying declarations, then the
\nCourt has to scrutinize all the dying declarations to find out if
\neach of them passes the test of being trustworthy. The Court must
\nfurther find out whether different dying declarations are consistent
\nwith each other in material particulars before accepting and relying
\nupon the same. A dying declaration made by a person on the verge of
\nhis death has a special sanctity, as at that solemn moment, a person
\nis most unlikely to make any untrue statement. The sanctity attached
\nto dying declaration is that a person on the verge of death would not
\ncommit sin of implicating somebody falsely. The shadow of impending
\ndeath is by itself the guarantee of truth of the statement made by
\nthe deceased regarding cause or circumstances leading to his death.
\nThe general principle on which this species of evidence is admitted
\nis that they are declarations made in extremity, when the person is
\nat that point of death and when every hope of this world is gone. At
\nthat point of time every motive to falsehood is silenced and the mind
\nis induced by the most powerful consideration to speak the truth.
\nSuch a solemn situation is considered by the law as creating an
\nobligation equal to that which is imposed by a positive oath
\nadministered in a Court of Justice. A dying declaration, therefore,
\nenjoys almost a sacrosanct status as a piece of evidence, coming as
\nit does from the mouth of the deceased victim. Once the statement of
\ndying person and the evidence of the witnesses testifying to the same
\npasses the test of careful scrutiny of the Court, it becomes very
\nimportant and reliable piece of evidence and if the Court is
\nsatisfied that the dying declaration is true and free from any
\nembellishment such a dying declaration by itself can be sufficient
\nfor recording conviction without looking for any corroboration.
\nHowever, if there are any infirmities of such nature warranting
\nfurther assurance then the Court has to look for corroboration. The
\nrule of corroboration requires that the dying declaration be
\nsubjected to close scrutiny since the evidence is untested by
\ncross-examination. The dying declaration must be accepted, unless
\nsuch declaration can be shown not to have been made in expectation of
\ndeath or to be otherwise unreliable. Any evidence adduced for this
\npurpose can only detract from its value, but does not affect its
\nadmissibility. One of the important tests of reliability of dying
\ndeclaration is that the person who recorded it must be satisfied that
\nthe deceased was in a fit state of mind. Generally, the following
\nthree tests have been devised in judicial pronouncement in order to
\nanswer the question whether the dying declaration is true: (1) Was
\nthe victim in a position to identify the assailant\/s? (2) Whether the
\nversion narrated by the victim is intrinsically sound and accords
\nwith probabilities? and (3) Whether any material part is proved to be
\nfalse by other reliable evidence???\n<\/p>\n
\tIn
\n\tthe light of the principles laid down in the above-referred to two
\n\tdecisions, we may now proceed to consider the evidence on record
\n\trelating to dying declarations and examine both the dying
\n\tdeclarations independently to ascertain the veracity of each
\n\tdeclaration.\n<\/p>\n
\tNow
\n\tso far as the first DD is concerned, it is in the form of a
\n\tcomplaint, which is on record at Exh.39, which was recorded by PW-15
\n\tKanjibhai Rupjibhai.  It is inter alia stated therein  that
\n\tJashodaben was residing with her children at Jhagadia Motaval
\n\tFaliya, Jhagadia and was doing miscellaneous labour and household
\n\twork.  Her marriage was performed with Khushalbhai Fulabhai Motala
\n\t17 years back.  She had two sons named Rohan and Nilesh and two
\n\tdaughters named Daxa and Pragna.  Her husband Khushalbhai Fulabhai
\n\thad expired two years back due to heart attack.  One Mahesh Dhanji
\n\tParmar proposed her to marry him. She denied. On 31.1.1999 (Sunday),
\n\tMahesh Dhanji came in drunken condition to her house at about 9:30
\n\tor 10:00 in the night and picked up quarrel with her and threatened
\n\ther to set her ablaze.  Then he sprinkled kerosene on her body and
\n\tlightened a match-stick from a match box and threw on her.  So, it
\n\twas a sudden fire.  She started shouting.  Her children awakened on
\n\thearing the shouts and poured water on her and opened the front door
\n\tof her house. People rushed to her house.  Though the mattresses
\n\twere thrown on her body, the fire did not extinguish and Mahesh ran
\n\taway from the back door.  On receiving this news, her Jethani
\n\t(wife of her husband’s elder brother) and elder son Dinesh, residing
\n\tnear her house, rushed there.  They took her to Jaghadia referral
\n\thospital, where only a peon was available, who told the son of her
\n\tJeth (Husband’s elder brother) to take her to Civil Hospital,
\n\tBharuch immediately and to get her admitted immediately.  Thus they
\n\tbrought her in Civil Hospital in Bharuch and admitted her.  To
\n\tprove the aforesaid statement, the prosecution has also examined
\n\tPW-15 Kanjibhai Roopjibha at Exh.38.  He has in term deposed with
\n\tregard to recording the statement of deceased after drawing the
\n\tpanchnama about the physical and mental condition of Jashodaben.\n<\/p>\n
\tOn
\n\treappraisal of the aforesaid DD there is no manner of doubt that
\n\tPW-15 Kanjibhai Roopjibhai after ascertaining about the physical and
\n\tmental condition of Jashodaben had recorded her statement.  As per
\n\tthe narration given by Jashodaben she has given the statement as to
\n\thow the incident had taken place and as to how the Accused had
\n\tsprinkled kerosene on her and set her ablaze.  She has also stated
\n\tabout the motive behind it.  Therefore, there is no reason to
\n\tdiscard the DD which is in the form of the complaint at Exh.39.\n<\/p>\n
\tNow,
\n\tthis takes us to examine the second DD which was recorded by the
\n\tExecutive Magistrate which is on record at Exh.12. To prove this
\n\tfact, the prosecution has examined and relied upon the oral
\n\ttestimony of PW-4 Mohanbhai Mangabhai at Exh.10, Circle Officer in
\n\tMamlatdar Office, Bharuch.  He received the police yadi for
\n\trecording the evidence of deceased Jashodaben.  He, therefore, went
\n\tto the burn ward of the Civil Hospital.  He himself has verified
\n\twhether Jashodaben was able to reply and thereafter he started
\n\tinterrogating Jashodaben and tried to get the information about the
\n\tincident.  Before him, Jashodaben had in term stated about the
\n\tincident.  Jashodaben had stated that on 31.1.1999 the Accused came
\n\tto her house in drunken condition and picked up quarrel and
\n\tthereafter sprinkled kerosene from stove on her and  set her ablaze.
\n\t The said DD is on record at Exh.12.  It is true that on reappraisal
\n\tof the evidence of PW-4 Mohanbai Mangabhai, he has not obtained the
\n\tcertificate from the Doctor about the physical and mental condition
\n\tof the deceased prior to recording of the statement.  But that is
\n\tnot fatal to the prosecution case as there are four eyewitnesses to
\n\tthe incident.  Therefore, this evidence can be used for
\n\tcorroboration of the oral testimony of the eyewitnesses and
\n\ttherefore can be relied and acted upon.\n<\/p>\n
\tIn
\n\torder to prove the culpability of the Accused, the prosecution has
\n\talso examined 4 eyewitnesses. In this connection, the prosecution
\n\thas relied upon the oral testimony of PW-1 Daxaben Khushalbhai at
\n\tExh.7 ?  daughter of deceased Jashodaben, PW-2 Praghaben
\n\tKhushalbhai at Exh.8 ?  daughter of deceased Jashodaben, PW-3
\n\tRohanbhai Khushalbhai at Exh.9 ?  son of deceased Jashodaben and
\n\tPW-6 Nilesh Khushalbhai at Exh.16 ?  son of deceased Jashodaben.
\n\tIn their oral testimonies, all of them have unequivocally and in
\n\tclear terms stated about the incident which had taken place.  The
\n\tsum and substance of their oral testimonies is that on the day of
\n\tincident, i.e. 31.1.1999 the Accused came to their house.  Prior to
\n\tthat also the Accused used to come to their house and picked up
\n\tquarrel with Jashodaben.  The Accused wanted to marry their mother
\n\twhich was not agreeable to Jashodaben.  Therefore, the Accused had
\n\tassaulted Jashodaben by sprinkling kerosene on her and thereafter
\n\tsetting her ablaze.  It may be noted that the above four witnesses
\n\thave been cross-examined by the learned advocate but nothing
\n\tsubstantial has been brought out from their evidence which would
\n\timpeach their credibility.\n<\/p>\n
\tOn
\n\toverall reappraisal of two sets of dying declarations; one in the
\n\tform of a complaint at Exh.39 and the another recorded by the
\n\tExecutive Magistrate at Exh.12 and also the oral testimony of four
\n\teyewitnesses, according to us, the complicity of the Accused for
\n\tcommission of the offence of murder is duly proved and established
\n\tbeyond reasonable doubt.  Therefore, it has to be held that deceased
\n\tJashodaben had died a homicidal death after receiving the burn
\n\tinjuries by the Accused and there is no escape from the conclusion
\n\tthat the Accused had sprinkled kerosene on deceased Jashodaben and
\n\tset her ablaze and on receiving the burn injuries deceased
\n\tJashodaben succumbed to the same. Therefore, the complicity of the
\n\tAccused for commission of the offence of murder of Jashodaben,
\n\tpunishable under Section 302 IPC is proved beyond reasonable doubt.\n<\/p>\n
\tWe
\n\tfind ourselves in complete agreement with the finding, ultimate
\n\tconclusion and the resultant order of conviction and sentence
\n\trecorded by the trial Court, as according to us, no other finding,
\n\tconclusion and order, is possible except the one reached by the
\n\ttrial Court, which is required to be affirmed by us.\n<\/p>\n
\tSeen
\n\tin the above context, there is no reason or justifiable ground to
\n\tinterfere with the impugned judgment and order of conviction and
\n\tsentence passed by the trial Court, and as the Appeal lacks merit,
\n\tdeserves to be dismissed by confirming the judgment and order passed
\n\tby the trial Court.\n<\/p>\n
\tFor
\n\tthe foregoing reasons, the Appeal fails and accordingly  it is
\n\tdismissed. Resultantly the judgment and order of conviction and
\n\tsentence dated 4.7.2001 rendered in Sessions Case No.101 of 1999 by
\n\tthe learned Additional Sessions Judge, Bharuch, is hereby confirmed
\n\tand maintained.\n<\/p>\n
(A.M.Kapadia,J)<\/p>\n
(Z.K.Saiyed,J)<\/p>\n
Jayanti*<\/p>\n
\t\t   \u00a0\u00a0\u00a0<\/p>\n
\t\t   Top<\/p>\n","protected":false},"excerpt":{"rendered":"
Gujarat High Court Maheshbhai vs Appearance on 8 August, 2008 Author: A.M.Kapadia,&Nbsp;Honourable Mr.Justice Z.K.Saiyed,&Nbsp; Gujarat High Court Case Information System Print CR.A\/581\/2001 17\/ 19 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 581 of 2001 For Approval and Signature: HONOURABLE MR.JUSTICE A.M.KAPADIA HONOURABLE MR.JUSTICE Z.K.SAIYED ========================================================= 1 Whether Reporters of Local […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[16,8],"tags":[],"class_list":["post-97797","post","type-post","status-publish","format-standard","hentry","category-gujarat-high-court","category-high-court"],"yoast_head":"\nMaheshbhai vs Appearance on 8 August, 2008 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/maheshbhai-vs-appearance-on-8-august-2008\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Maheshbhai vs Appearance on 8 August, 2008 - 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