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2020 DIGILAW 569 (GUJ)

Abbashbhai Kasambhai Sandhi v. State Of Gujarat

2020-06-22

A.P.THAKER

body2020
JUDGMENT : 1. Being aggrieved and dissatisfied with the judgment and order of conviction and sentence dated 10.02.2005 passed by the learned Additional Sessions Judge and Second Fast Track Judge, Dhrangadhra in Sessions Case No. 2 of 2001 (hereinafter be referred to as “the Trial Court”), whereby the learned Additional Sessions Judge has convicted the accused for the offence punishable under Sections 498(A), 306, 323, 504 and 114 of the Indian Penal Code (hereinafter be referred to as “the IPC”) and sentenced them to undergo rigorous imprisonment for one year and fine of Rs.1000/- each, in default, to undergo rigorous imprisonment of two months for the offence under Section 498(A) of the IPC and rigorous imprisonment for five years and fine of Rs.1000/- each, in default, to undergo rigorous imprisonment of six months for the offence under Section 306 of the IPC, the appellants - accused have preferred present appeal. The Trial Court has ordered to run sentence concurrently and benefit of set off has also been given to the accused. The accused are acquitted from the charges under Sections 323 and 504 of the IPC. 2. Brief facts of the prosecution case are that on 24.12.2000, at about 3.00 in the afternoon, the complainant Mumtazben poured kerosene on herself and committed suicide. According to the prosecution, the deceased has committed suicide due to torture being given by the accused – appellants herein. It is also the case of the prosecution that appellant No.1 is second husband of Mumtazben and appellant No.2 is first wife of appellant No.1. It is alleged that on account of torturing being made, appellant No.1 was not keeping the deceased in good condition and neglected her and due to that she has committed suicide. 2.1 On the basis of the allegations, FIR came to be registered as C.R.No.I-151/2000 before Halwad Police Station and necessary investigation was carried out by the police. During the investigation, the accused were arrested and the Investigating Officer has recorded the statements of various witnesses and prepared necessary panchnama thereof and got documentary evidence. 3. After completion of investigation, the police has filed charge-sheet before the concerned Judicial Magistrate for the alleged offences. During the investigation, the accused were arrested and the Investigating Officer has recorded the statements of various witnesses and prepared necessary panchnama thereof and got documentary evidence. 3. After completion of investigation, the police has filed charge-sheet before the concerned Judicial Magistrate for the alleged offences. Thereafter, as the offence was exclusively triable by the Court of Sessions, the learned Judicial Magistrate has committed the case under Section 209 of the Criminal Procedure Code to the Court of Sessions wherein it was registered as Sessions Case No.2 of 2001. 4. The charge against the accused came to be framed by the Trial Court, vide Exhibit 14 for the aforesaid offence. The accused pleaded not guilty to the charge and pleaded for trial. 5. To prove the case, the prosecution has examined the following witnesses:- P.W.1 Jethabhai Amarabhai Neighbour Exh.21 P.W.2 Tidiben Bavlabhai Neighbour Exh.24 P.W.3 Puriben Ramtubhai Neighbour Exh.25 P.W.4 Jetiben Dudabhai Neighbour Exh.26 P.W.5 Kanaiyalal Harilal Neighbour Exh.27 P.W.6 Ashwinbhai Virbhanubha Chavda Executive Magistrate Exh.28 P.W.7 Pravindan Ramdan Gadhavi Doctor Exh.31 P.W.8 Kishorkumar Bhagwanbhai Jani PSO Exh.34 P.W.9 Chandubhai Narsangbhai Aahir PSO Exh.35 P.W.10 Ashwinkumar Rameshchandra Nimbark Police Exh.37 P.W.11 Pramodrai Chhabildas Joshi Doctor Exh.38 P.W.12 Manishbhai Kantigiri Gosai Doctor Exh.45 P.W.13 Sarmanbhai Rambhai Varu PSI Exh.46 6. The prosecution has also produced the following documentary evidence:- Sr.No. Particulars Exhibit 1 Inquest Panchnama 22 2 Panchnama of scene of offence 23 3 Yadi for recording of dying declaration 29 4 Dying Declaration 30 5 Compliant 32 6 Police Yadi 33 7 First Crime, Pradhumannagar Police Station, Rajkot City, 36 8 FIR being Registration No.0/2000 9 Injury certificate 38 10 Transfer Chit (Chithi) 40 11 Case papers of hospital 41 12 Case papers of hospital 42 13 Postmortem note 44 7. After closure of the evidence, the incriminating evidence found during the course of recording of the evidence of the prosecution, further statements of the accused under Section 313 of the Criminal Procedure Code, 1973 came to be recorded, wherein also, the accused have denied of having committed any offence and stated that they have been falsely implicated in the alleged offence. 8. After hearing both the sides and considering the evidence on record, ultimately, the Trial Court has convicted the accused for the charges leveled against them for the offences as stated hereinabove and passed the judgment and order of sentence as referred to hereinabove. 9. 8. After hearing both the sides and considering the evidence on record, ultimately, the Trial Court has convicted the accused for the charges leveled against them for the offences as stated hereinabove and passed the judgment and order of sentence as referred to hereinabove. 9. Before dealing with the submissions of both the sides, it is pertinent to note that during the pending of this appeal, accused No.1 has died. The death certificate of accused No.1 is produced, which is ordered to be taken on record. In view of the death of appellant No.1, the appeal stands abated so far as appellant No.1 is concerned. In this situation, the facts and circumstances against appellant No.2 is only to be considered. Thus, the appeal lies in narrow compass. 10. Heard Mr.Malay Patel, learned advocate with Mr.Ashish Dagli, learned advocate for the appellants and Ms. Jirga Jhaveri, learned Additional Public Prosecutor for respondent – State at length. Perused the materials placed on record and the impugned judgment and order of the Trial Court. 11. Mr.Malay Patel, learned advocate with Mr.Ashish Dagli, learned advocate for the appellants has vehemently submitted that there is iota of evidence against appellant No.2, who is first wife of appellant No.1. He has submitted that the deceased Mumtazben has re-married with appellant No.1 and she has brought two children with her. While inviting attention of the Court to the dying declaration, he has submitted that as per the dying declaration, which has been produced in the judgment and order by the Trial Court is in verbatim; it reflects that there is no allegation made against appellant No.2. He has submitted that it was the deceased insisting appellant No.1 to separate himself from appellant No.2 and to reside with her (deceased) and due to that there was some dispute going on between them. According to him, even if the dying declaration is accepted as it is, no role is attributed to appellant No.2 and the evidence on record is also not in consonance with the allegations of torturing by appellant No.2. He has submitted that the Trial Court has not considered this very basic aspect of the matter and has not appreciated the evidence on record and convicted and sentenced the appellants herein. He has prayed to allow the appeal and set aside the impugned judgment and order of conviction. 12. He has submitted that the Trial Court has not considered this very basic aspect of the matter and has not appreciated the evidence on record and convicted and sentenced the appellants herein. He has prayed to allow the appeal and set aside the impugned judgment and order of conviction. 12. Per contra, Mr.Jirga Jhaveri, learned Additional Public Prosecutor for the respondent – State has submitted that the prosecution has proved the case against the appellants beyond reasonable doubt and considering the dying declaration of the deceased, the Trial Court has not committed any serious error of facts and law in passing the impugned judgment and order of conviction and sentence. She has submitted that as per the dying declaration, due to constant quarrel for 2-3 days in the house, the deceased has committed suicide by pouring kerosene herself and at that time, appellant No.1 and appellant No.2 were present and they have not tried to save her life. According to her submissions, this fact suggests that the present appellant No.2 has also involved in torturing the deceased. She has submitted that the Trial Court has properly appreciated the facts and circumstances of the case and has rightly passed the impugned judgment and order of conviction and sentence against the appellants. According to her submissions, the impugned judgment and order of conviction and sentence is maintainable in the eyes of law and it does not warrant any interference. She has urged to dismiss the present appeal and to confirm the impugned judgment and order of the Trial Court. 13. In view of the provision contains in Section 386 of the Criminal Procedure Code, 1973, in an appeal from a conviction, the Appellate Court can (i) reverse the finding and sentence and acquit or discharge the accused, or order him to be re-tried by a Court of competent jurisdiction subordinate to such Appellate Court or committed for trial; (ii) alter the finding, maintaining the sentence or (iii) with or without altering the finding, alter the nature or the extent, or the nature and extent, of the sentence, but not so as to enhance the same. 14. 14. It is well settled that it is the duty of the Appellate Court to look into the evidence adduced in the case and arrive at an independent conclusion as to whether the said evidence can be relied upon or not and even it can be relied upon then whether the prosecution can be said to have proved the case beyond reasonable doubt by leading evidence. The credibility of a witness has to be adjudged by the Appellate Court in drawing inference from proved admitted facts. 15. It is also well settled that the law clearly expects the Appellate Court to dispose of the appeal on merits not merely by perusing the reasoning of the Trial Court in the judgment, but by cross-checking the reasoning with the evidence on record with a view to satisfying itself that the reasoning and findings recorded by the Trial Court are consistent with the materials on record. 16. On perusal of the evidence of P.W.1 Jethabhai Amarabhai at Exhibit 21, it appears that he has stated that he did not know the present accused and the deceased. He has stated that he came to know that the deceased has burnt and, therefore, he went to her house and found that the deceased was burnt. He has stated that he did not know as to why the deceased was burnt. 17. On perusal of the inquest panchnama at Exhibit 22, it appears that there is no sign on the body of the deceased regarding any beating. On perusal of the panchnama of the scene of offence at Exhibit 23, it is found that there was smell of kerosene and broken matchbox, rod and pieces of burning clothes were found at the place of occurrence. 18. On perusal of the evidence of P.W.2 - Tidiben Bavlabhai at Exhibit 24, P.W.3 - Puriben Ramtubhai at Exhibit 25, P.W.4 – Jetiben Dudabhai at Exhibit 26 and P.W.5 – Kanaiyalal Harilal at Exhibit 27, it appears that they have not supported the case of the prosecution and, therefore, they have been declared hostile and the prosecution has cross-examined them. But in such cross-examination also, they have not supported the case of the prosecution. 19. But in such cross-examination also, they have not supported the case of the prosecution. 19. On perusal of the evidence of P.W.6 – Ashwinbhai Virbhanubhai Chawda at Exhibit 28, who was at the relevant time, Executive Magistrate and has recorded the dying declaration of the deceased Mumtazben, it appears that he has supported the case of the prosecution to the effect that he has recorded the dying declaration of the deceased after verifying that the deceased was in conscious condition and he has obtained the medical opinion as to the consciousness of the deceased. He has produced dying declaration at Exhibit 30. 19.1 During his cross-examination, he has adhered to the evidence of the chief-examination. However, he has admitted the fact that he has obtained opinion of the doctor at a time and got signature thereof. He has admitted that he has not obtained any such endorsement before recording dying declaration of the deceased. However, he has stated that the doctor has informed him that the patient is in conscious condition. He has admitted that the thumb impression of the deceased on the dying declaration has not been identified by anybody else. He has stated that the thumb impression was obtained by himself. He has not deemed it fit to identify by somebody. He has denied the suggestion that at the time of recording dying declaration, the patient was not in conscious condition and it has fabricated dying declaration. 20. On perusal of the evidence of P.W.7 – Pravindan Ramdan Gadhavi at Exhibit 31, it appears that he has stated that on 24.12.2000, he was on duty in the Government Hospital and during that time at about 9.30, the deceased was brought in hospital and she has given her complaint before him and, thereafter, he has sent the FIR to Pradhyumannagar Police Station vide zero number. He has stated that the FIR at Exhibit 32 was given by the deceased and the deceased has put her thumb impression on the FIR. 20.1 During his cross-examination, he has stated that he has not obtained any opinion of the doctor regarding consciousness of the deceased. However, he has stated that he came to know from the doctor that the patient was in conscious condition. He has denied the suggestion that the deceased has not given any complaint and he himself has narrated the entire facts as per his wish. 21. However, he has stated that he came to know from the doctor that the patient was in conscious condition. He has denied the suggestion that the deceased has not given any complaint and he himself has narrated the entire facts as per his wish. 21. On perusal of the evidence of P.W.8 – Kishorkumar Bhagwanbhai Jani at Exhibit 34, it appears that he has stated that on 25.12.2000, he was PSO in Halwad Police Station and he got the FIR from Rajkot Police Station having zero number which he has recorded in the FIR register and investigation was handed over to Shri S. R. Varu. He has stated that he has made necessary endorsement in the station diary accordingly. This fact has not been challenged by the defence. 22. On perusal of the evidence of P.W.9 – Chandubhai Narsangbhi Aahir at Exhibit 35, it appears that he has stated that on 24.12.2000, he was serving in Pradhyumannagar Police Station as PSO and he received FIR of the deceased which was made before P. R. Gadhavi and accordingly, he has recorded the FIR and made necessary entry in the station diary. This fact has not been challenged by the defence. 23. On perusal of the evidence of P.W.10 – Ashwinkumar Rameshchandra Nimbark at Exhibit 37, it appears that he has categorically stated that on 24.12.2000, he was serving in Charadva O.P. and he received Janvajog Entry No.85/2000 dated 24.12.2000 at 18.55 hours for investigation. Accordingly, he has drawn panchnama of the place of occurrence and has also recorded statements of the neighbours and, thereafter, the investigation was handed over to PSI Varu. During his examination, the contradiction appeared in the evidence of the neighbours, have been proved. 23.1 During his cross-examination, he has denied the suggestion of the defence that he has not interrogated the witnesses as alleged by him. 24. On perusal of the evidence of P.W.11 – Dr.Pramodrai Chhabildas Joshi at Exhibit 38, who has performed postmortem of the body of the deceased, it appears that he has stated that on 24.12.2000 before him the body of deceased Mumtazben was brought. 24. On perusal of the evidence of P.W.11 – Dr.Pramodrai Chhabildas Joshi at Exhibit 38, who has performed postmortem of the body of the deceased, it appears that he has stated that on 24.12.2000 before him the body of deceased Mumtazben was brought. He has stated that the deceased was brought for treatment with history of the burn injury and it was found that there were burn injury on scalp, scalp hair partially burnt, burns on neck and anterior and posterior aspect of chest and abdomen, private part, both UL and LL i.e. glowing of palmer skin and except sole of feet. He has stated that thereafter, she was shifted to Rajkot Civil Hospital and he received necessary medical certificate regarding injury and she was not stated to be an indoor patient and he has informed Vankaner Police Station. 24.1 During his cross-examination, he has admitted that there was no other injury on the body of the deceased except burn injury. He has also admitted that he has asked the patient regarding history. But, the patient has given history regarding her burn injury. 25. It appears from the postmortem report at Exhibit 44 that the cause of action of the death is shock due to extensive burn. 26. On perusal of the evidence of P.W. 12 – Dr. Manishbhai Kantigiri Gosai at Exhibit 45, it appears that he has stated that at the relevant time i.e. on 24.12.2000, he was serving in Rajkot Civil Hospital as medical officer and in the burnt ward, Mumtazben Abbasbhai, resident of Chandpur Taluka: Vankaner was brought with a history and burn injury and he accordingly treated her and in his presence, dying declaration of the deceased was recorded by the Executive Magistrate Mr.A. V. Chavda. He has stated that the Executive Magistrate has asked as to whether the patient was in conscious condition or not. Accordingly, he has opined that she was in conscious condition and accordingly, he has signed in the first part of the dying declaration which is at Exhibit 30 and he has identified his handwriting and signature. He has stated that after recording of the dying declaration, he has also made endorsement that the patient was in conscious condition and he has put his signature therein. He has stated that the dying declaration was recorded in his presence. He has stated that after recording of the dying declaration, he has also made endorsement that the patient was in conscious condition and he has put his signature therein. He has stated that the dying declaration was recorded in his presence. 26.1 During his cross-examination, he has denied the suggestion of the defence that both the endorsements were made by him after closure of the dying declaration and the fact that at the time of recording of dying declaration, the patient was unconscious. He has denied the suggestion that he has created the endorsement on dying declaration afterwards. 27. On perusal of the evidence of P.W.13 – Sarmanbhai Rambhai Varu at Exhibit 46, it appears that he has stated that on 25.12.2000, he was serving in Halwad Police Station as PSI and investigation of the crime was given to him and accordingly, he has recorded the statements of the neighbours. During his examination, the statements of Tidiben Bavalbhai, Puriben Ramtubhai, Jetiben Dudabhai and Kanaiyalal Harilal were brought on record. He has stated that as he was transferred, the further investigation of the case was handed over to Mr.H. P. Dave, who has led the charge-sheet. 27.1 During his cross-examination, he has denied the suggestion that he has written down the statements of the witnesses according to their versions. 28. Having considered the oral as well as documentary evidence and re-appreciated the evidence, it appears that the prosecution story is revolving around the dying declaration of the deceased. Now, on perusal of the dying declaration at Exhibit 30, it is narrated by the deceased Mumtazben that on the day of the happening, she herself poured kerosene and put her ablaze. The deceased has also stated that after getting divorce from her earlier husband, she was living with accused No.1 as wife since last three months with her own children. She has also stated that deceased Abbasbhai Sandhi, accused No.1 has another wife namely Sakinaben and there was quarrel in the family since last three days and as she herself telling accused No.1 to be separated and at that time, her husband has given her money and instructed her to be separated and due to that, she found herself in a condition that she was alone and, therefore, she has committed the suicide. The deceased has also narrated that at the time of incident, her new husband and his first wife Sakinaben were there. The deceased has stated that she has committed suicide by locking door from inside. The deceased has also narrated that her new husband – accused No.1 and his earlier wife Sakinaben brought her to the hospital in jeep. Thus, the version of the dying declaration clearly suggests that the deceased has taken step of suicide in frustration that her second husband has not agreed to reside separately with her. It is an admitted fact that the present appellant No.1 and appellant No.2 were husband and wife and the deceased has come as a second wife of appellant No.1 who has died. Therefore, even the dying declaration is accepted as it is then there is no iota of evidence to connect the present appellant No.2 with the alleged crime. 29. It is pertinent to note that on re-appreciating the evidence on record, it is clearly found that there was no any external injury on the body of the deceased and she has died due to burn injury. It is pertinent to note that on perusal of the entire evidence on record, no iota of evidence is found from accused No.2. 30. On perusal of the impugned judgment and order, it clearly transpires that the Trial Court has not appreciated the evidence on record in its proper perspective and has merely relied upon the evidence of the police witnesses and the factors which are narrated in the chief-examination only. The Trial Court has not considered the evidence on record properly. On perusal of the impugned judgment and order, it also appears that the Trial Court has not properly appreciated the fact which has come on record by way of cross-examination of the witnesses. It is pertinent to note that the neighbours have not supported the case of the prosecution. This fact has not been considered by this Trial Court. 31. Considering the overall facts and circumstances of the case, it is clearly found that the Trial Court has committed serious error of facts and law in convicting and sentencing the accused, especially, accused No.2 i.e. first wife of the deceased accused No.1. This fact has not been considered by this Trial Court. 31. Considering the overall facts and circumstances of the case, it is clearly found that the Trial Court has committed serious error of facts and law in convicting and sentencing the accused, especially, accused No.2 i.e. first wife of the deceased accused No.1. Therefore, the impugned judgment and order of the Trial Court is not sustainable in the eyes of law and it deserves to be quashed and set aside and the appeal deserves to be allowed. 32. For the foregoing reasons, present appeal is liable to be allowed. As the appellant No.1 has died during the pendency of the appeal, so far as he is concerned, the appeal stands abated. The present appeal is allowed. The impugned judgment and order of conviction and sentence passed by learned Additional Sessions Judge and Second Fast Track Judge, Dhangadhra in Sessions Case No. 2 of 2001 dated 10.02.2005 for the offence under Sections 498(A) and 306 of the Indian Penal Code is hereby quashed and set aside. The accused is acquitted from the charges leveled against her. Fine, if any, paid to be refunded to the accused. Bail bond stands cancelled. Record and proceedings be sent back to the concerned Trial Court forthwith.