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2019 DIGILAW 1086 (GUJ)

Nasirbhai Salimbhai Pathan v. State of Gujarat

2019-11-19

R.P.DHOLARIA

body2019
JUDGMENT : R.P. Dholaria, J. 1. The present appeal has been filed by the appellant-accused under Section 374 of the Criminal Procedure Code, 1973, against the judgment and order dated 27.05.2016 passed by learned 6th Additional Sessions Judge, Bhavnagar in Sessions Case No. 118 of 2015, whereby the appellant-accused was convicted for the offence under Sections 306, 498(A) and 504 of the Indian Penal Code (herein after referred to as "IPC" for short). By the impugned judgment, under Section 306 of the IPC, the appellant was sentenced to undergo rigorous imprisonment for a period of seven years and ordered to pay Rs. 5,000/- fine and in default of payment of fine, simple imprisonment for a period of two months was imposed and under Section 498(A) of the IPC, the appellant was sentenced to undergo rigorous imprisonment for a period of three years and ordered to pay Rs. 5,000/- fine and in default of payment of fine, simple imprisonment for a period of two months was imposed and under Section 504 of the IPC, the appellant was sentenced to undergo rigorous imprisonment for a period of one year and ordered to pay Rs. 2,000/- fine and in default of payment of fine, simple imprisonment for a period of two months was imposed. All the sentences were ordered to run concurrently. 2. The case of the prosecution in short is that on 24.04.2015, the appellant-accused came to home at around 12:15 a.m. and there was some heated arguments between the victim/complainant/wife and the appellant-accused and thereafter, the wife told the appellant-accused not to use bad words and in the meanwhile, the appellant-accused ran after her. Therefore, she went inside the house and locked the room and took the kerosene and poured it over herself and set on fire. Thereafter, brother of the appellant-accused called 108 emergency and took the victim to the hospital where after some time, during the treatment, she was declared dead. Therefore, the complaint was lodged with the police. 2.1. Investigation was carried out and charge sheet came to be filed against the accused in the Court of learned Magistrate. As the case was sessions triable, the same was committed to the Court of Sessions. Thereafter, charge came to be framed and explained to the accused, to which the accused pleaded not guilty and claimed to be tried. 2.2. 2.1. Investigation was carried out and charge sheet came to be filed against the accused in the Court of learned Magistrate. As the case was sessions triable, the same was committed to the Court of Sessions. Thereafter, charge came to be framed and explained to the accused, to which the accused pleaded not guilty and claimed to be tried. 2.2. After filing of closing purshis by the prosecution, further statement of accused person under Section 313 of the Code of Criminal Procedure, 1973 was recorded. The accused has denied the case of the prosecution and submitted that a false case is filed against him. 2.3. At the conclusion of trial and after appreciating the oral as well as documentary evidence, the learned Judge vide impugned judgment, convicted the appellant-accused. Being aggrieved by and dissatisfied with the said judgment and order of conviction dated 27.05.2016 passed by learned 6th Additional Sessions Judge, Bhavnagar in Sessions Case No. 118 of 2015, the appellant-accused has preferred the present appeal before this Court. 3. Learned advocate Mr. Kaivan K. Patel for the appellant submits that none of the witnesses including mother and brother of the victim as well as neighbours have supported the case of prosecution and they have been declared hostile to the case of prosecution and therefore, solely based upon 3 alleged dying declarations made before the treating Doctor, Police as well as Executive Magistrate which are also contradictory in nature, the learned trial Court recorded the conviction, which ought not to have been done. Still, however, he argued that in order to put an end to the matter, the appellant-accused has already undergone sentence for about 4 years and therefore, if the sentence imposed upon the appellant-accused may be reduced to the extent of sentence he has already undergone, he would not claim for clean acquittal. 4. On the other hand, learned APP Ms. Chetna M. Shah supported the judgment of learned trial court and argued that this sort of offences are increasing day by day and therefore the sentence imposed upon the appellant-accused by the learned trial Court commensurate with the crime in question and therefore, conviction of the appellant-accused should not be interfered with by reducing the sentence of the appellant-accused. 5. Chetna M. Shah supported the judgment of learned trial court and argued that this sort of offences are increasing day by day and therefore the sentence imposed upon the appellant-accused by the learned trial Court commensurate with the crime in question and therefore, conviction of the appellant-accused should not be interfered with by reducing the sentence of the appellant-accused. 5. In order to appreciate the contentions raised by the rival parties to the proceedings in light of the record and proceedings, the record and proceedings indicates that the prosecution in order to prove the case, examined for about 21 witnesses. This Court notices that neither the mother of the victim who soon after the incident arrived at the place of occurrence and she also accompanied while the victim was under treatment at the hospital and her alleged dying declarations were recorded, nor the brother of the victim and other independent witnesses had supported the case of prosecution and they came to be declared as hostile to the case of prosecution. 6. In view of aforesaid factual position, 3 dying declarations which are available on record in which dying declaration made before the treating Doctor wherein she merely stated that on account of household quarrel, she herself took the extreme step of committing suicide by setting herself on fire by pouring kerosene over her person and before the Police on 24.04.2015, she herself stated that it was her second marriage with the present appellant-accused and she was residing separately from her in-laws and on the date of incident, when her husband arrived at house during nocturnal hours and there was a quarrel between them due to which she poured kerosene over her person and set on fire and thereafter, her brother-in-law, mother-in-law as well as her husband and her own mother took her to the hospital. In the third dying declaration made before the Executive Magistrate, she, inter alia, stated that as she had quarrel with her husband as well as her mother-in-law due to which she poured kerosene over her person and thereafter, her husband brought her to the hospital for treatment. 7. This Court has been taken through the entire material available on record. This Court notices that except the aforesaid three dying declarations, there is no other linking evidence available on record to connect the present appellant-accused with the crime in question. 7. This Court has been taken through the entire material available on record. This Court notices that except the aforesaid three dying declarations, there is no other linking evidence available on record to connect the present appellant-accused with the crime in question. The aforesaid dying declarations are not conclusively revealing as to what sort of and by which means and as to how and when the victim came to be harassed by the appellant-accused and the only vague allegation as regards to quarrel is made and no detail is forthcoming and even the dying declarations are also somewhat contradictory to each other. The dying declaration before the Executive Magistrate involves even mother-in-law who was separately residing from the victim. 8. In view of aforesaid factual position, since the statute has not provided any minimum sentence under Section-306 of the IPC, while taking into consideration aforesaid nature of evidence as well as mitigating circumstances emerging out that the husband of the victim i.e. present appellant-accused himself took the victim to the hospital and she survived for about 5 days, in that view of the matter, this Court is inclined to reduce the sentence imposed upon the appellant-accused from 7 years to 4 years which he has already undergone. 9. For the reasons recorded above, present Criminal Appeal succeeds in part. While maintaining the conviction, the sentence imposed, vide judgment and order dated 27.05.2016 passed by learned 6th Additional Sessions Judge, Bhavnagar in Sessions Case No. 118 of 2015 upon the appellant-accused under Section 306 of the IPC is reduced to the extent of sentence already undergone by the appellant-accused. The appellant-accused shall deposit the fine amount, if any, immediately before the trial court. Upon payment of fine amount, the appellant-accused shall be released forthwith from the jail, if he is no longer required in connection with any other offence. Rest of the judgment shall remain unaltered. R & P be sent back to the learned trial court, forthwith. Direct service is permitted.