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2016 DIGILAW 916 (GUJ)

Raval Savitaben Lilabhai v. State of Gujarat

2016-04-28

BIREN VAISHNAV, K.S.JHAVERI

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JUDGMENT : K.S. Jhaveri, J. 1. Both these appeals arise out of a common judgment and order dated 08.10.2010 passed by the 2nd Additional Sessions Judge, Mehsana in Sessions Case No. 58 of 2010 whereby original accused Nos. 1 & 2 were convicted for the offence punishable under section 302 and 498(A) of Indian Penal Code and sentenced to rigorous imprisonment for life and fine of Rs. 2,000/-, in default, simple imprisonment for three months under Section 302 of Indian Penal Code. The accused were also sentenced to undergo rigorous imprisonment for six months and fine of Rs. 500/- in default simple imprisonment for fifteen days under Section 498(A) of Indian Penal Code. Being aggrieved by the said conviction, original accused Nos. 1 & 2 have preferred Criminal Appeal No. 1670 of 2012 and Criminal Appeal No. 1488 of 2011 respectively. 2. The facts and circumstances as per the prosecution case giving rise to the present appeal are as under: 2.1 Original accused No. 1 is the father-in-law of the deceased and original accused No. 2 is the mother-in-law of the deceased. The son of the accused got married to deceased three years prior to the alleged incident. The accused persons however inflicted mental and physical torture upon the deceased on the ground that she did not cook well and that they did not like the food cooked by her. On 27.02.2010, the husband of deceased went to Himmatnagar to see a doctor as he was not keeping well. Thereafter, she completed her household chores and went to sleep. At around 01.30 pm, she felt a sudden pain in her stomach and she woke up. On waking up, she felt someone pour water like substance on her and then she realised that original accused No. 1 was standing with a can of kerosene and match box. Thereafter she was set ablaze by the accused persons. She started screaming and therefore people gathered and she was taken to hospital for treatment. She however succumbed to the injuries during treatment. A complaint was therefore lodged on behalf of the deceased. 2.2 Pursuant to the complaint, investigation was carried out. During the course of investigation the accused persons were arrested. She started screaming and therefore people gathered and she was taken to hospital for treatment. She however succumbed to the injuries during treatment. A complaint was therefore lodged on behalf of the deceased. 2.2 Pursuant to the complaint, investigation was carried out. During the course of investigation the accused persons were arrested. After investigation, on the basis of material collected against the accused, since the Investigating Officer found a prima facie case against the accused, chargesheet was filed and as the case was triable by the Court of Sessions, it was committed to the Court of Sessions. The trial Court framed charge against the accused. The accused pleaded not guilty to the charge and claimed to be tried. 2.3 Trial was initiated against the accused and during the course of trial the prosecution examined the following witnesses whose evidences were read before us by learned advocates for both the sides: P.W. No. Name of Witness Exhibit No. 1 Dr. Govindbhai Patel 9 2 Vishnubhai Raval 23 3 Chandrikaben Raval 24 4 Amrutbhai Joitabhai 25 5 Dr. Bhairavi Pandey 28 6 Lakshman Keshavlal 32 7 Vishalbhai Vasubhai 35 8 Dahyabhai Bhikhabhai 36 9 Barot Devangkumar 37 10 Talaji Galbaji 39 11 Pasabhai Patel 40 12 Deepsinh Lakshmansinh 41 13 Manilal Vasudevbhai 46 14 Ashok Patel 49 15 Leelaben Ode 52 16 Natwarbhai Patel 53 17 Rameshbhai Balabhai 58 18 Arvindbhai Patel 62 19 Ramjibhai Dungarbhai 82 2.4 The prosecution also relied upon various documentary evidences which have been perused by us such as medical certificate of deceased at Ex. 10, medical certificate of accused at Ex. 11 & 13, police yadi at Ex. 12 & 14, panchnama of scene of offence at Ex. 26, yadi for conducting P.M at Ex. 29, cause of death certificate at Ex. 31, D.D at Ex. 34, panchnama of body condition and clothes of deceased at Ex. 38, map of scene of offence at Ex. 56, inquest panchnama at Ex. 61, FSL report at Ex. 79, complaint at Ex. 81 etc. 2.5 At the end of the trial and after recording the statement of the accused under section 313 of Cr.P.C., and hearing arguments on behalf of prosecution and the defence, the trial court convicted accused as mentioned aforesaid. Being aggrieved by and dissatisfied with the aforesaid judgment and order passed by the Sessions Court the accused have preferred the present appeals. 3. Mr. Being aggrieved by and dissatisfied with the aforesaid judgment and order passed by the Sessions Court the accused have preferred the present appeals. 3. Mr. P.V. Patadiya, learned advocate appearing for the appellants assailed the judgment of conviction as being contrary to law and the facts of the case and that the prosecution has not proved the case beyond reasonable doubt. At the very outset, learned advocate submitted that both the accused persons were in no way involved in the commission of the alleged offence. He submitted that except the dying declaration, the complaint and the history recorded before the doctor, there is no other evidence corroborating the same he submitted that majority of the witnesses have turned hostile. He submitted that considering the cause of death and the nature of injuries it is evident that the deceased had committed suicide and therefore the appellants are required to be granted benefit of doubt. He submitted that even the possibility of accidental death cannot be ruled out. 3.1 Mr. Patadiya has drawn the attention of this Court to the various dying declarations recorded in the form of dying declaration before the Executive Magistrate, the complaint and the history before the doctor and submitted that there are various contradictions in the three. He submitted that in the first complaint before the police the deceased had stated that original accused No. 1 himself had poured kerosene on her and set her on fire whereas in the subsequent dying declarations she has roped in original accused No. 2 and stated that original accused No. 2 was having match stick in her hands and that original accused No. 1 poured kerosene whereas original accused No. 2 set her ablaze. He submitted that this is an afterthought and therefore the case against the appellants is doubtful. 3.2 Mr. Patadiya further submitted that in the absence of eye-witness to the incident the prosecution story based on inconsistent evidence of the deceased cannot be relied upon. He submitted that the prosecution has not proved the case against the present accused beyond reasonable doubt and therefore they may be acquitted. 4. Per contra, Mr. Pranav Trivedi, learned APP appearing for the respondent State submitted that the statement made by the deceased on the dying declaration is sufficient to convict the appellants for the offence committed by them. He submitted that the prosecution has not proved the case against the present accused beyond reasonable doubt and therefore they may be acquitted. 4. Per contra, Mr. Pranav Trivedi, learned APP appearing for the respondent State submitted that the statement made by the deceased on the dying declaration is sufficient to convict the appellants for the offence committed by them. He submitted that evidence given by the parents and other witnesses is more reliable evidence and there is nothing on record to suggest that the deceased made a dying declaration on the influence of anyone. Lastly, he submitted that the accused and his wife were residing in the same house and that there is no evidence that they were living separately. 4.1 Mr. Trivedi has also drawn the attention of this court to the injuries sustained by accused No. 2 and the history recorded before the doctor and submitted that the prosecution has successfully proved the case against the appellants beyond reasonable doubt. He submitted that even the complaint and the police yadi discloses the involvement of the appellants in the alleged offence. He submitted that looking to the medical as well as ocular evidence, it has been proved beyond reasonable doubt that the appellants are the perpetrators of the alleged offence. 5. Heard learned advocates for both the sides and perused the records of the case, more particularly the documentary as well as ocular evidence. The circumstances which were pressed into service by the prosecution are as follows: "(I) The deceased was married to son of appellants three years prior to the alleged incident; (II) The deceased was ill-treated by the accused; (III) The deceased died at her matrimonial house. (IV) The deceased in her dying declaration has named the accused persons and narrated the entire turn of events;" 5.1 At the outset it shall be relevant to note that there is no eye witness to the alleged incident other than the statement of the deceased. It has been consistently laid down by this Court that where a case rests squarely on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person. 6. It has been consistently laid down by this Court that where a case rests squarely on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person. 6. The deceased in her complaint has stated that she used to reside with her in-laws (accused) and husband in her matrimonial house. She has stated that she had no quarrels with her husband and that he did not harass her but the accused persons used to torture her. She has stated that they used to frequently taunt her for not cooking tasty food and used to criticize her often. She has stated that on 27.02.2010, her husband had gone to hospital as he was not keeping well and she completed her household chores and that at around 01.30 pm she went to sleep. She has stated that she felt some liquid being poured over her and she woke up only to see that her father-in-law - accused No. 1 was standing with a can of kerosene and match stick in his hand. She has stated that accused No. 1 poured kerosene over her and set her ablaze. She has stated that she started burning and thereafter accused persons poured water and sand on her and tried to extinguish the fire. She has further stated that she was taken to hospital in the ambulance. She has stated that the accused persons used to harass her for not cooking tasty food and that on the day of incident, accused No. 1 poured kerosene on her and set her ablaze. 6.1 The deceased has reiterated the aforesaid facts in her dying declaration however there is an improvement in the same. It is the say of the deceased in the dying declaration that she was original accused No. 1 had come home in an inebriated stated and poured kerosene on her whereas accused No. 2 set her on fire by way of matchstick. She has stated that the accused used to quarrel with her often. 7. It is the say of the deceased in the dying declaration that she was original accused No. 1 had come home in an inebriated stated and poured kerosene on her whereas accused No. 2 set her on fire by way of matchstick. She has stated that the accused used to quarrel with her often. 7. It is trite that the courts have to be on guard to see that the dying declaration is not the result of either tutoring or prompting or a product of imagination and that due care and caution must be exercised in considering weight to be given to the dying declaration. In the present case, however, the dying declaration supports the circumstantial evidence. 7.1 So far as the third dying declaration which is in the form of history before the doctor is concerned, the same is given before P.W. 1 - Dr. Govindbhai Patel who was the medical officer at Vijapur hospital. P.W. 1 has stated that the accused had sustained 2nd and 3rd degree burns. This witness has stated that the deceased had given history that she was burnt by her in-laws (accused) by pouring kerosene on her and setting her on fire. 8. We have gone through the inquest panchnama and the panchnama of scene of offence. From the panchnama of scene of offence, it is borne out that the deceased had rushed out of the house after being set on fire. 9. P.W. 2 - Vishnubhai Raval is the father of the victim who vide Ex. 23 has deposed that the deceased used to be meted out with physical and mental torture by the appellants. P.W. 3 - Chandrikaben Raval is the mother of the victim who vide Ex. 24 has also supported the case of the prosecution so far as harassment meted out to the deceased by the appellants is concerned. 10. Mr. Patadiya, learned advocate appearing for the appellants has tried to take shelter of the fact that original accused No. 2's name was not mentioned by the deceased in the complaint. Even if police report at Ex. 83 is seen, it is borne out that original accused No. 1 had poured kerosene on the deceased and set her on fire and that original accused No. 2 used to harass her. The deceased succumbed to her injuries after three days. Even if police report at Ex. 83 is seen, it is borne out that original accused No. 1 had poured kerosene on the deceased and set her on fire and that original accused No. 2 used to harass her. The deceased succumbed to her injuries after three days. In that view of the matter, we are of the opinion that benefit of doubt is required to be granted to original accused No. 2 under Section 302 of Indian Penal Code. 11. For the foregoing reasons, Criminal Appeal No. 1670 of 2012 is dismissed. The order of conviction and sentence dated 08.10.2010 arising from Sessions Case No. 58 of 2010 passed by the 2nd Additional Sessions Judge, Mehsana is confirmed qua original accused No. 1. However, life imprisonment as awarded by the trial court would not be till last breath and the case of the original accused No. 1 may be considered by the appropriate authority in accordance with law after 14 years of his serving sentence. 11.1 Criminal Appeal No. 1488 of 2011 is partly allowed qua original accused No. 2 - appellant therein. The order of conviction and sentence dated 08.10.2010 arising from Sessions Case No. 58 of 2010 passed by the 2nd Additional Sessions Judge, Mehsana under Section 302 of Indian Penal Code is quashed and set aside qua original accused No. 2. The appellant of Criminal Appeal No. 1488 of 2011 - original accused No. 2 is granted benefit of doubt and is accordingly acquitted of the charge levelled against her under Section 302 of Indian Penal Code. The conviction and sentence under Section 498(A)of Indian Penal Code is however confirmed. 11.2 Both the accused shall be granted benefit of remission and/or set off in accordance with law as the case may be. The judgment and order dated 08.10.2010 is modified accordingly. R & P to be sent back to the trial court forthwith.