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2024 DIGILAW 1934 (GUJ)

State Of Gujarat v. Lakhubhai Murabhai

2024-10-17

BIREN VAISHNAV, MAULIK J.SHELAT

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JUDGMENT : BIREN VAISHNAV, J. 1 This appeal has been filed by the appellant – State under Sec.378(1)(3) of the Criminal Procedure Code, 1973 (hereinafter referred to as “the Code”), against the judgement and order of acquittal passed by the learned Additional Sessions Judge (Fast Track Court), Jamnagar, in Sessions Case No. 106 of 1994 on 01.08.2003, whereby the learned Fast Track Court has acquitted the respondent – accused for the offences punishable under Secs. 498-A and 302 r/w. 114 of the Indian Penal Code. 2. The prosecution case in brief is as under: 2.1 That, on 20.04.1993 at about 1:00 a.m., the complainant was at his home situated in village Lakhabaval. At that time, one Mulabhai Hada and Harjibhai Sidi of Sikka and Amu Jiva of the village of the complainant came to him by taxi and told him that his sister had received burn injuries and also told the complainant to come to Irvin Hospital, upon which, the complainant along with his mother and sister went to Irvin Hospital. When asked by the family of the deceased as to how she received the burn injuries, the deceased gave no answer and was shouting loudly on account of severe pain and suffering. 2.2 The case of the prosecution further is that five years prior to the incident, the accused quarreled with the deceased and drove her out of the house, which compelled the deceased to stay with the complainant for about six months. That, it was only after the intervention of the elderly people of her family, that she went back to the matrimonial home. Further, again prior to one and a half year of the incident, the accused inflicted sticks and kick blows on the deceased and drove her out, due to which, she remained at her parental house for about one year. This time also, due to intervention of the elderly people of the family, she was sent back to the matrimonial home. 2.3 The case of the prosecution further is that, on the occasion of “Satam”, when the deceased had come to her parental home, she informed her family that her husband was not doing any work and was still harassing and torturing her mentally and physically. She also alleged harassment at the hands of accused Nos. 1 and 3, who though were residing separately, used to taunt the deceased. She also alleged harassment at the hands of accused Nos. 1 and 3, who though were residing separately, used to taunt the deceased. 2.4 It is further the case of the prosecution that on account of mental and physical torture by the accused the deceased committed suicide by pouring kerosene on her and setting herself on fire. The deceased was moved to the hospital, where her dying declaration was recorded by the Executive Magistrate, wherein, she stated that her sister-in-law Devuben burnt her by pouring kerosene in the presence of accused Nos. 1 and 2. 2.5 A complaint in respect of the aforesaid incident was lodged with the Jamnagar Panchkoshi ‘B’ Division Police Station for the offences punishable under Secs.498-A and 302 r/w. 114 of the Indian Penal Code vide I-CR No. 119 of 1993. Necessary investigation was done. The deceased was taken for medical examination for the purposes of proving of the offence and after having found sufficient material against the respondents- accused, charge sheet came to be filed in the Court of Ld.Additional Sessions Judge (Fast Track Court), Jamnagar, which was numbered as chargesheet No. 119 of 1993. 2.6 Upon committal of the case to the Hon’ble Fast Track Court, Jamnagar, the learned Additional Sessions Judge framed charges vide Exh.3 against the respondents-accused for the aforesaid offences. The respondents – accused pleaded not guilty and claim not to be tried. They were tried for the offences and in order to bring home charge, the prosecution has examined 9 prosecution witnesses and also produced various documentary evidences before the Ld.Trial Court. The details of the evidence ie. oral and documentary led by the prosecution are reproduced in the tabular form hereunder: ORAL EVIDENCE Sr. No. Exh. No. Name of Witness Nature of Witness Remarks 1 9 Dr. Dineshchandra.A. Parmar Post Mortem Officer 2 13 Mrudulaben.G. Gosvami Magistrate, Jamnagar 3 16 Shivpuri N.Gosvami Present at Panch Place 4 20 Premjibhai Harjibhai Witness (Tenant of the Accused) Hostile 5 22 Nathabhai Arjanbhai Brother of the Deceased Hostile 6 24 Malabhai Arjanbhai Brother of the Deceased Hostile 7 25 Aluben Arjanbhai Sister of the Deceased Hostile 8 30 Amubhai Jivbhai Brother- in-law of the deceased 9 34 Kantilal N Patel PSI, Jamnagar Documentary Evidence Sr.No. Exh. No. Name of Witness Page No 1. 11 Post Mortem Report 57 to 70 2. 1/3 FIR 105 to 106 3. No. Name of Witness Page No 1. 11 Post Mortem Report 57 to 70 2. 1/3 FIR 105 to 106 3. 15 D.D. Form 81 to 84 4. 42 Police Report 163 to 166 4. 45 M.Papers 171 to 244 5. 46 Wound Certificate 245 to 248 3 Mr.Hardik Soni, learned APP has appeared for the State and Mr.Pratik Barot, learned counsel has appeared for the respondents as Amicus Curiae at the request of this Court. 4. The prosecution had produced and relied upon several documentary evidences in support of the oral evidence led by them before the Trial Court. Thereafter, necessary pursis was presented before the learned Trial Court declaring closure of evidence. 5 At the end of trial, the Court below recorded further statement of accused u/s.313 of Cr.P.C and thereafter, passed the impugned judgment and order, which has led to the filing of present appeal. 6 Mr. Hardik Soni, learned APP, appearing for the appellant – State would make the following submissions: 6.1 He would rely on deposition of Dr.Dineshchandra Parmar, at Exh.9, who performed post mortem of the deceased and who deposed that he had medically examined the deceased and collected the samples. He also identified the certificate issued by him during the course of the medical examination of the deceased which is at Exh.11. 6.2 He would also rely on witness Nos. 2, 3 & 4 which are at Exhs.13, 16 & 20 respectively i.e. the deposition of the witness No.2, Dy.Mamlatdar, Jamnagar, Smt.Mrudulaben G.Gosvami, who went to take the dying declaration of the deceased, witness No.3, Shivpuri N. Gosvami, who was present at the Panch Place and witness No. 4, namely, Premjibhai Harjibhai. 6.3 Mr.Soni, learned APP, would submit that though there being clear evidence led by the prosecution that the offence of Sections 498-A and 302 r/w 114 of IPC were committed by the accused as there were injuries found on the body parts of the deceased which were even supported by the medical examination of the deceased, no cogent reasons have been assigned by the learned Trial Court in acquitting the accused. Mr.Soni, would further submit that in the instance case, the Dying Declaration of the deceased was sufficient to inspire confidence as the deceased was very much conscious at the time of giving her dying declaration. Mr.Soni, would further submit that in the instance case, the Dying Declaration of the deceased was sufficient to inspire confidence as the deceased was very much conscious at the time of giving her dying declaration. 7 We have heard the learned counsels for the respective parties and have independently examined the case of the prosecution. 8 In short, perusal of the charge-sheet would indicate that it is the case of the prosecution that as per the version of the complainant Nathabhai Arjanbhai, the accused No.1, who is the brother-in-law and the accused No.3 is the sister-in-law of the deceased. The accused No.2 is the husband of the deceased. As per the charge- sheet, on 20.04.1993, at about 10 p.m in the night, Shantaben the deceased was set ablaze after pouring of kerosene by the accused No.3 Devuben. The burn injuries resulted in the death of Shantaben. Against the accused No.1 and the accused No.3, ie. the brother-in-law and sister-in-law of the deceased and accused No.2, Keshabhai the husband, the allegation is that they abated the offence. Therefore, section 114 of the IPC has been added. 8.1 Dr.Dineshchandra Amarsingh Parmar, has been examined at Exh.9. He is the doctor who carried out the post-mortem. The medical evidence as per his testimony would indicate that the deceased Shantaben had suffered 55% burn injuries. It was his case that such injuries could possibly occur as a result of pouring kerosene. The postmortem report is also on record at Exh.11. It indicates burn injuries on the face, neck, both the breasts, upper part of the abdomen, upper limb, circular patches on the upper part of the back region etc. The cause of death recorded is cardio respiratory failure on account of burns and its complications. The doctor identified the certificate issued by him during the course of medical examination at Exh.11. 9 The Deputy Mamlatdar Mrudulaben G Goswami, SPW -2, who recorded the dying declaration is examined at Exh.13. She recorded the dying declaration of Shantaben at 12:45 a.m. As per the testimony of the Deputy Mamlatdar, the Executive Magistrate who recorded the dying declaration, she has suggested that the dying declaration was recorded in the form of statement after the arrival of the doctor of the Irvin Hospital at 12:40 a.m. Nobody else was present when the dying declaration was recorded. 9.1 The dying declaration so recorded is at Exh.15. 9.1 The dying declaration so recorded is at Exh.15. Reading of the dying declaration indicates that as per the narrative of the deceased Shantaben, the accused Nos. 1 and 2 i.e. the brother-in-law and the husband of the deceased were sitting in the verandah. The deceased was inside the room with her daughter. The accused No.3, Devuben, came inside the room and entered into an argument with her. She suddenly then picked up a can of Kerosene, poured it on the deceased Shantaben and then struck a match as a result of which, Shantaben was set ablaze. On hearing the shouts of Shantaben, her brotherin- law Lakhubhai - accused No.1 and the husband, accused No.2, ran in and put off the fire. It is her case that they were not taking her to the hospital, however, as the neighbours insisted, she was carried to Irvin Hospital. From the Dying Declaration, it appears that there was a dispute with regard to certain ornaments. 9.2 Shivpuri Goswami, has been examined as Prosecution Witness No.3 at Exh.16, who was the pancha at the place of the offence. According to his version, the accused No.1, Lakhu Muda, who was working as a cleaner of the truck, was at Rajkot when informed. Prosecution Witness No.4, Premji Haribhai is examined at Exh.20. He is a neighbour and according to his version, he stays on the upper floor and on hearing shouts from the ground floor, he ran downstairs. 9.3 The cross-examination indicates that when he ran downstairs, he found Shantaben ablaze. He, therefore, accompanied and took the deceased to the hospital. He would in his cross-examination state that he did not hear any one from the relatives opposing that Shantaben be taken to hospital. When he asked Shantaben as to how the accident of fire occurred, to which Shantaben replied that while she was lighting a lamp, the lamp fell on her and that’s how her clothes caught fire. 9.4 Nathabhai Arjanbhai, brother of Shantaben has been examined as Prosecution Witness No.5 at Exh.22. The cross-examination of this witness indicates that the sister enjoyed smooth and easy going matrimonial life. She was happy with her marriage life. He admits that when he talked to the sister, she stated that her clothes got fire as a result of a lightened lamp that fell on her clothes. The cross-examination of this witness indicates that the sister enjoyed smooth and easy going matrimonial life. She was happy with her marriage life. He admits that when he talked to the sister, she stated that her clothes got fire as a result of a lightened lamp that fell on her clothes. That Lakhubhai, the accused No.1, was not present at the place of the incident, as he was in Rajkot. He admits that, while recording her dying declaration, the deceased was incoherent in her speech when she gave her deposition of being set ablaze by the accused No.3, on his instructions. 9.5 Malabhai Arjanbhai, Prosecution Witness No.6, the other brother of Shantaben is examined at Exh.24. In the cross-examination, this witness admits that his sister had no issues with her marriage life and with her in-laws and therefore, there was no bitterness in the marriage life. On going to the hospital, when he asked his sister as to how the accident had occurred, she said that as a lightened lamp fell on her clothes, she sustained burn injuries. 9.6 The Police Officer who investigated and recorded the FIR has been examined as Prosecution Witness-9, at Exh.34. Kantilalbhai Naranbhai Patel, in his testimony says that he was working as Police-Sub- Inspector at Panchkoshi ‘B’ Division Police Station, Jamnagar. The complaint was recorded as given by the deceased brother Nathabhai Arjanbhai. Indian Penal Code’s Section 306 was added and on the basis of the dying declaration, Section 302 was subsequently added. He recorded the statement of the deceased Shantaben on 22.04.1993. The version given by Shantaben to the Police Officer was that on 19.04.1993, she after having been frustrated with her marriage life, and facing severe disturbances mentally, poured kerosene on herself and tried to commit suicide. She fainted and therefore when brought to the hospital gave statement to the police. The medical certificate at the time of admission is on record. It records that the patient has in her medical history stated that while she was lightening a lamp, the lamp accidentally fell on her, that the surrounding kitchen floor had kerosene as a result of which she sustained burn injuries. The medical certificate at the time of admission is on record. It records that the patient has in her medical history stated that while she was lightening a lamp, the lamp accidentally fell on her, that the surrounding kitchen floor had kerosene as a result of which she sustained burn injuries. 9.7 On examination of this evidence on record, the Trial Court found that there was contradiction in the two dying declarations i.e. one recorded by the Executive Magistrate and the one given by Shantaben to the Police Officer on site who recorded the complaint at the behest of her brother, Nathabhai. 10 We have perused the dying declarations so recorded by the Executive Magistrate where it is the case of the deceased that she sustained burn injuries as a result of a kerosene can being emptied on her body by Devuben and she lighting a match. She in her dying declaration which was recorded at 12.45 a.m in the presence of the doctor concerned, therefore directly implicated her sister-in-law Devuben. However, a statement made to the police officer who recorded the complaint on the very day prior to the recording of this dying declaration indicated that she had stated before the police that she sustained burn injuries as a result of a lit lamp which fell on her body and the clothes got fire. Her brother Nathabhai who was examined as Prosecution Witness No.5 at Exh.22, though was declared hostile, from the cross-examination it is apparent that he too stated that the sister when asked stated that she has sustained burn injuries as a result of a lit lamp which fell on her clothes. 10.1 Malabhai Arjanbhai, the other brother of the deceased whose deposition is recorded at Exh.24 also confirmed to the version of the brother. 10.2 Both these brothers have in their cross-examination stated that as far as the matrimonial life of sister was concerned, she had no issues and she was very happy with her marriage life. In the police statement recorded by the police investigating team, in the statement given before the police, as we have already recorded earlier the deceased gave a statement that she on her own had poured kerosene on her clothes and set herself on fire. In the police statement recorded by the police investigating team, in the statement given before the police, as we have already recorded earlier the deceased gave a statement that she on her own had poured kerosene on her clothes and set herself on fire. Based on these versions, having found that the two brothers have turned hostile and there was a contradiction in the two dying declarations inasmuch as, before the Executive Magistrate when she had directly implicated the accused No.3 of setting her on fire after pouring kerosene, whereas in the first statement to the Police she has stated that she herself had poured kerosene and set herself on fire, the Trial Court found that the dying declarations inherent being contradictory, could not be believed. In addition thereto, the Trial Court found that the evidence of the two brothers suggested that the burn injuries that the deceased had sustained was as a result of a lit lamp which fell on her as a result of which her clothes caught fire which resulted into burn injuries. Even in the certificate recording the medical history, the version indicates that she sustained the burn injuries as a result of falling of the lit lamp in the kitchen where there was kerosene. 11 In other words, though the medical post mortem report proves that the death occurred due to burn injuries and the deceased sustained 55% burn injuries, evidence in the form of contradictory dying declarations and the evidence of her brothers, though declared hostile, indicated that the death occurred as a result of a lit lamp having fallen on her. The Trial Court held that there was no evidence on record to sustain the charge framed against the accused. However, as has also come on record from the evidence of one Premjibhai Harjibhai and one of the brothers of the deceased that the presence of Lakhu, accused No.1, itself was doubtful inasmuch as, his presence was shown at Rajkot. The prosecution, therefore, could not bring home the case. 12 At this stage, we also consider the judgement relied upon by learned counsel Mr.Pratik Barot in the case of Mallappa vs. State Of Karnataka., reported in 2024 (0) AIJEL SC 73129. Paras 24 and 25 of the decision read as under: “24. We may firstly discuss the position of law regarding the scope of intervention in a criminal appeal. 12 At this stage, we also consider the judgement relied upon by learned counsel Mr.Pratik Barot in the case of Mallappa vs. State Of Karnataka., reported in 2024 (0) AIJEL SC 73129. Paras 24 and 25 of the decision read as under: “24. We may firstly discuss the position of law regarding the scope of intervention in a criminal appeal. For, that is the foundation of this challenge. It is the cardinal principle of criminal jurisprudence that there is a presumption of innocence in favour of the accused, unless proven guilty. The presumption continues at all stages of the trial and finally culminates into a fact when the case ends in acquittal. The presumption of innocence gets concretized when the case ends in acquittal. It is so because once the Trial Court, on appreciation of the evidence on record, finds that the accused was not guilty, the presumption gets strengthened and a higher threshold is expected to rebut the same in appeal. 25. No doubt, an order of acquittal is open to appeal and there is no quarrel about that. It is also beyond doubt that in the exercise of appellate powers, there is no inhibition on the High Court to re-appreciate or re-visit the evidence on record.However, the power of the High Court to reappreciate the evidence is a qualified power, especially when the order under challenge is acquittal. The first and foremost question to be asked is whether the Trial Court thoroughly appreciated the evidence on record and gave due consideration to all material pieces of evidence. The second point for consideration is whether the finding of the Trial Court is illegal or affected by an error of law or fact. If not, the third consideration is whether the view taken by the Trial Court is a fairly possible view. A decision of acquittal is not meant to be reversed on a mere difference of opinion. What is required is an illegality or perversity.” 13 In light of this, we find no substance in the appeal of the State challenging the acquittal. The appeal is accordingly, dismissed. Bail bond, if any, shall stand cancelled. Record and proceedings, if called for, be sent back to the concerned Trial Court forthwith.