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Gujarat High Court · body

2019 DIGILAW 27 (GUJ)

Nahir Majid Isamil Memon v. State Of Gujarat

2019-01-16

R.P.DHOLARIA

body2019
JUDGMENT : 1. The present appellants-original accused by way of filing the present appeal challenge the legality, validity and propriety of the judgment and order of conviction passed by the learned Additional Sessions Judge ( Fast Track), Junagadh in Sessions Case No. 79/2000 dated 10.10.2002 convicting the present appellants for offences punishable under sections 306 and 498 A read with section 114 of the Indian Penal Code (hereinafter referred to as the “Code”.) and sentenced to undergo 5 years simple imprisonment and fine of Rs 1,000/- in default to undergo 11 months simple imprisonment for the offence punishable under section 306 of the Code and further to undergo one year simple imprisonment and fine of Rs 500/-, in default to undergo 2 months simple imprisonment for the offences punishable under Section 498(A) of the Code. All the sentences are ordered to run concurrently. 2. The brief facts as they emerge from the record are as under:- 2.1 The accused no.1, husband of the deceased married the deceased 7 months ago. As per the case of the prosecution, there was cruelty and harassment by the accused persons as the accused persons constantly nagged the deceased stating that she was dark and did not do any household work, resultantly she committed suicide. Therefore, upon such allegations a complaint came to be filed by the brother of the deceased on 12.5.2000. It is also the fact that on the same day, i.e. on 12.5.2000 dying declaration came to be recorded commencing from 13:25 hours concluding at about 13:45 hours. Thereafter the investigation started and the accused persons were arrested. 3. On completion of the investigation, the case was led before the Additional Sessions Judge (Fast Track), Junagadh in Sessions case No. 79/2000 dated 10.10.2002, convicting the present appellants for the offences punishable under section 306 and 498 A read with Section 114 of the Code. It is against the said judgment and order that the appellants, preferred the present Appeal. 4. Mr. Shakeel Qureshi learned counsel appearing for the appellant has reiterated and urged the grounds mentioned in the memo of Appeal. He has taken this Court through the paper book and the evidence on record and argued that the order of conviction is contrary to law. He further stated that the judgment and order of the learned Trial Judge is not proper and it is erroneous. He has taken this Court through the paper book and the evidence on record and argued that the order of conviction is contrary to law. He further stated that the judgment and order of the learned Trial Judge is not proper and it is erroneous. He further stated that the learned Trial Judge has not considered the evidences in its proper perspective and arrived at a wrong conclusion. 5. Mr. Shakeel A. Qureshi learned counsel appearing for the appellants further argued that even if the complaint given by the complainant, Exh. 25, the brother of the deceased is believed to be true, he himself, has stated that the deceased and her husband were separately residing for the last 3 months and her in-laws were residing at Junagadh. In that view of the matter, no proximate cause is revealed and the dying declaration is totally inconsistent and it ought not to have been believed by the learned Trial Court and the appeal ought not to have been decided on the strength of the dying declaration. 6. He further argued that during the pendency of this appeal both the husband Nazir alias Nasir Majid Ismail Memon and sister-in-law Nasreen Majid Ismail, died and the appeal, therefore, stands abated against them. He further argued that learned trial judge, while appreciating the evidence on record totally overlooked the deposition of PW2 Executive Magistrate as well as dying declaration, Exh. 23, which came to be recorded soon after the occurrence of the incident in presence of the doctor who made endorsement as regards to her mental and physical fitness and after completion of such dying declaration, an endorsement was taken and unnecessarily given more weightage to the overall evidence of complainant, who is the brother of the deceased and other relatives and totally relied upon the concocted evidence which came to be deposed by them and wrongfully passed the conviction which is not sustainable at law. He has, therefore, requested to allow this Appeal and quash and set aside the order of conviction. 7. On the other hand, Ms. Chetnaben Shah, learned Additional Public Prosecutor has taken this Court through the entire evidence and has threadbare led the evidence and has stated that the witnesses (relatives of the deceased) have supported the case of the prosecution. He has, therefore, requested to allow this Appeal and quash and set aside the order of conviction. 7. On the other hand, Ms. Chetnaben Shah, learned Additional Public Prosecutor has taken this Court through the entire evidence and has threadbare led the evidence and has stated that the witnesses (relatives of the deceased) have supported the case of the prosecution. She further stated that the learned Judge has recorded ample reasons while delivering the judgment and based on its findings and evidence available on record. She, therefore, submitted that in view of the evidence on record it cannot be said that learned Trial Judge has committed any error in passing the impugned judgment and order convicting the appellant-accused and therefore the present Appeal deserves to be dismissed. 8. This Court has heard learned advocate for the appellant-accused and learned Additional Public Prosecutor for the respondent-State. 9. As per the prosecution version, the deceased Mumtaz, got married with Nazir alias Nasir Majid Ismail Memon and both were residing along with, mother-in-law, brother-in-law and sister-in-law, and that they used to treat her with cruelty by taunting and branding her about her dark complexion and that she was not able to carry out the house-hold work and subjected her to cruelty as well as harassment due to which on 12.5.2000 at about 11:00 clock, she poured kerosene and set herself on fire and committed suicide and thereby all the accused committed offences punishable under Sections 306, and 498 A read with Section 114 of the Code. 10. The complaint filed by the brother of the deceased indicates that his sister Mumtaz got married to Nazir alias Nasir Majid Ismail Memon and they were residing at Junagadh along with her mother-in-law, sister-in-law and brother-in-law and they were taunting her for not bringing sufficient dowry as well as not carrying out usual house-hold work and also insulted her that she has no mind and beat her. He has further stated that within a short span of married life, there was dispute, and within one month from the date of marriage, she was taken to her parental home and after compromise, her husband took her to her matrimonial home and for about last 3 months, they were separately residing. 11. The complainant, was examined at PW 3 where he has stated similar story which he narrated before the police. 12. 11. The complainant, was examined at PW 3 where he has stated similar story which he narrated before the police. 12. The other witnesses PW4 Gulabbanu at Exh 27, PW no. 6 Arifbhai at Exh. 33 and PW 8 Shabana Iqbal at Exh. 34 deposed in the same manner in which the complainant has deposed. 13. The crucial part of the evidence which is the dying declaration, produced at Exh. 23 came to be recorded by Executive Magistrate at about 13 hours and 25 minutes on 12.5.2000, wherein she has stated that she was residing along with her husband and on being asked as to how she got burnt, she explained that she caught fire while preparing food and at that time her husband and sister-in-law Nasreen were present. She also stated that her other in-laws were residing at Junagadh and there was no harassment or cruelty from neither her husband nor from the in-laws and it was completed at about 13:45 hours on the same day. The dying declaration clearly discloses the endorsement that the patient was fully conscious during the time when the declaration was recorded and at the end of the dying declaration, also the endorsement was made by Doctor Vaidya, that the patient was fully conscious. The above stated dying declaration was came to be proved in the deposition of PW 2, Executive Magistrate wherein he deposed that soon after the receipt of yadi, he visited Civil Hospital, Junagadh and he contacted Doctor Vaidya who showed the patient who was undergoing the treatment for burns and that she was conscious and therefore other family members were taken out of the room and thereafter seeking endorsement and fitness certificate from the doctor, he recorded her dying declaration at about 13:25 hours which was in question and answer form and after completion of such dying declaration again he took the endorsement regarding her fitness. He also admitted in his deposition that while the dying declaration was recorded, Doctor Vaidya gave the fitness certificate and he was also satisfied that the patient was in a fit state of mind, while giving the dying declaration. 14. On overall analysis of evidence on record, it appears that the evidence of relatives of the deceased are hearsay evidence gather from the deceased whereas the evidence at Exh. 14. On overall analysis of evidence on record, it appears that the evidence of relatives of the deceased are hearsay evidence gather from the deceased whereas the evidence at Exh. 23 was recorded by the Executive Magistrate in the presence of treating Doctor Vaidya, and it was in writing and the mental and physical fitness certificate was also obtained. The dying declaration, is clearly indicative of the accidental burns, whereas the hearsay evidence given by the nearest relatives is not in consonance with the other evidence on record. The evidence on record, is clearly indicative that during the short span of married life, the deceased had problems and, therefore within a period of one month she was taken to her parental home and after compromise, she came back to her matrimonial home and for about last 3 months, the deceased Mumtaz and her husband Nasreen, were residing separately from their in-laws and that fact is also emerging out from the dying declaration at Exh. 23. 15. In view of the aforesaid factual position, since the husband Nazir alias Nasir Majid Ismail and Nasreen - sister-in-law both have died during the pendency of the appeal and as per the statement emerging out from the dying declaration that merely their presence is emerging out. 16. It appears that the learned Trial Court totally overlooked the evidence of PW 2, Executive Magistrate as well as dying declaration Exh. 23 and wrongfully placed sole reliance on the deposition of near relatives and wrongfully convicted the present appellant which is not sustainable at law. As per the evidence available on record the judgment of conviction recorded by the learned Trial Judge is not at all sustainable at law and deserves to be quashed and set aside. 17. Accordingly this Appeal is allowed and the judgment and order of conviction passed by the learned Additional Sessions Judge (Fast Track), Junagadh in Sessions Case No. 79/2000 dated 10.10.2002 convicting the present appellants is quashed and set aside. Bail bonds stand cancelled. R& P be sent to the learned Trial Court forthwith.