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2016 DIGILAW 972 (GUJ)

Vijaykumar Narvatsinh Bariya v. State of Gujarat

2016-05-04

BIREN VAISHNAV, K.S.JHAVERI

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JUDGMENT : K.S. Jhaveri, J. 1. This appeal is filed by the present appellant-original accused against the judgment and order dated 13.02.2012, passed by 9th (ADHOC) Additional Sessions Judge, Vadodara, in Sessions Case No. 138 of 2010, whereby the present appellant-accused was convicted for offences punishable under Section 302 of the Indian Penal Code (for short "IPC") and ordered to undergo life imprisonment and fine of Rs. 2,000/- and in default of payment of fine, rigorous imprisonment for two months. 2. The brief facts of the case are as follows:- 2.1 It is alleged that on 14.01.2010, at about 17:15 in the evening, the accused had an altercation with his wife at his residence C/27, Sanjaynagar-2, Sama Mangal Pandey Road, Vadodara. On that day, the accused quarrelled with his wife and poured kerosene on her and set her ablaze. Therefore, he was charged for the offence punishable under Section 302 of the IPC. 2.2 Upon filing of the complaint, investigation was carried out and the accused was arrested and charge-sheet was submitted in the Court of learned Magistrate. However, as the case was exclusively triable by the Court of Sessions, the same was committed to Sessions Court. Thereafter, charge was framed against the accused. The accused pleaded 'not guilty' and claimed to be tried. 3. During the trial, the prosecution has examined the following witnesses:- S. No. Name Exhibit No. 1. Complainant Virabhai Becharbhai Vankar, P.I. Fatehganj Police Station 9 2. Panch Mukeshbhai Jaypalsinh Bhadoriya 14 3. Panch Vitthalbhai Chandubhai Uttekar 20 4. Panch Chandanbhai Hemrajbhai Rathod 23 5. Panch Arvindbhai Mahijibhai Thakore 25 6. Geetaben Mukeshbhai Bhadoriya 26 7. Varsangbhai Gohaidabhai Rathwa 27 8. Dr. Jagrutiben Gamanlal Chaudhary 31 9. Sumitraben Laxmasinh Bariya 34 10. Dr. Sutasha Basu 35 11. Laxmanbhai Rupabhai Bariya 38 12. Bharatbhai Jokhnabhai Bariya 39 13. Ramnikbhai Laljibhai Gondaliya 40 14. Parvatiben Rameshbhai Bariya 42 15. Ratanbhai Bhagubhai 45 16. Govindbahi Dhanjibhai Vasava 47 17. Kanubhai Mithabhai 50 18. Abdulbhai Rahimbhai Malek 54 4. The prosecution has also relied upon documentary evidences like the Inquest Panchnama at Exhibit-21, panchnama regarding seizure of clothes of the deceased at Exh-22, and purjo at Exh-63. 5. At the end of trial, the Court below recorded further statements of the accused under Section 313 of the Cr.P.C and thereafter, passed the impugned judgment and order awaiting the sentence, as aforesaid. 5. At the end of trial, the Court below recorded further statements of the accused under Section 313 of the Cr.P.C and thereafter, passed the impugned judgment and order awaiting the sentence, as aforesaid. Being aggrieved and dissatisfied with the impugned judgment of the trial Court, the accused has approached this Court by way of the present appeal. 6. Mr. Barod, learned advocate appearing for the appellant-original accused has taken us through the evidence on record and submitted that the impugned judgment and order is against the evidence on record. He has contended that the prosecution has miserably failed to prove the case against the appellant-accused, inasmuch as there is no Dying Declaration, and only on the history given to the doctor who is not examined and the documents which has been produced on record, the order of conviction is passed against the appellant-accused. He contended that the prosecution has miserably failed to prove case against the appellant and committed an error in not considering the evidence in cross-examination of Tutor, Forensic Medicine at Exh-10, where she admitted that the cause of death was due to shock due to burning. Learned counsel for the appellant has also taken us to the evidence of PW-13, Mr. Ramniklal Laljibhai Gondaliya, Scientific Officer, who has deposed in his deposition that "on the basis of my observation I say that the possibility of suicide cannot be ruled out." In view of the above said witnesses, the learned counsel for the appellant contended that benefit of doubt may be given to the accused. 7. Learned APP Ms. Chetna M Shah, has taken us to the judgment as well as evidence on record and contended that though majority of the witnesses have turned hostile she has relied upon the history before the doctor and other documents which are produced on record. More particularly, the learned APP has emphasized on evidence of PW-7, wherein in cross-examination it has come on record that Dr. Jagrutiben had talked with the deceased for five to seven minutes and the deceased was promptly replying to the questions put forth by doctor Jagrutiben. The deceased while talking with Jagrutiben had revealed to doctor Jagrutiben that her husband had poured kerosene on her and set her ablaze, without giving her any reason for the same. Jagrutiben had talked with the deceased for five to seven minutes and the deceased was promptly replying to the questions put forth by doctor Jagrutiben. The deceased while talking with Jagrutiben had revealed to doctor Jagrutiben that her husband had poured kerosene on her and set her ablaze, without giving her any reason for the same. Learned APP therefore contended that, in view of evidence of PW-7, the contention raised by learned counsel for the appellant that there is no Dying Declaration or oral declaration of the deceased and hence the impugned judgment passed by the trial Court is unjust and unfair and may not be considered, is ruled out. Ms. Shah, learned APP, has also taken us to the evidence of the Doctor, who has performed Post Mortem of the deceased. Learned APP has drawn the attention of the Court to the Post mortem Report at Exh-36, at column No. 23, wherein the cause of death of the deceased is given to be shock following burns. 8. We have heard learned counsel for both the sides and perused the documents on record. In view of the medical evidence and other evidences, we are of the opinion that this will amount to culpable homicide amounting to murder. We completely believe the history before the doctor and the evidence of other persons who has reached the scene of offence. The record too establishes the involvement of the present appellant-accused in the alleged crime which is proved beyond reasonable doubt. Therefore, we are in complete agreement with the impugned judgment and order of conviction as recorded by the trial Court against the appellant-accused and confirm the same. 9. For the foregoing reasons, the appeal is required to be dismissed and is dismissed, accordingly. At this stage, Mr. Barod, learned advocate for the appellant-accused requested that the accused may be given the benefit of remission after completion of requisite period. Therefore, it is observed that upon completion of requisite period, case of the accused person may be considered for remission. The period of sentence already undergone by the accused be given set off to him. Bail bond, if any, stands cancelled. Record and proceedings, if any, lying here be sent to the Court below forthwith.