SIRAJKHAN SATTARKHAN PATHAN Vs. STATE OF GUJARAT

JUDGEMENT

(1.) This Revision Application is filed by the petitioner being aggrieved and dissatisfied with the judgment and order dated 24th July, 1999 passed by the learned Judicial Magistrate First Class, Kalol, below Exh.1 i.e. Complaint, filed by the petitioner before learned JMFC, Kalol, and by the above said order, learned JMFC was pleased to dismiss the complaint u/s 203 of the Cr.P.C.

(2.) Short facts of the case are the present petitioner filed one private complaint before learned Judicial Magistrate First Class at Kalol on 6th August, 1997 against (1) Anvarkhan Abdulkhan Pathan, (2) Tejmohmad Sultankhan Pathan, (3) Amjadkhan Mohmadkhan Pathan, (4) Ayubkhan Abdulkhan Pathan, (5) Amankhan Habibullakhan Pathan and (6) Kasamkhan Hasamkhan Pathan, for the offences punishable u/Ss. 436, 427 read with Sec. 34 of the I.P.C. The complainant disclosed the incident of 20th May, 1997 wherein it was alleged that during that period the father of the complainant Sattarkhan Pirzada and the family members were staying in a house situated in Gullistapark Society, Block No. 13 at Kalol. On the day of the incident i.e. 20th May, 1997, at about 9.30 in the night, the family members of the petitioner had gone out of the house locking the house. The accused taking advantage of this position, set the house of the petitioner on fire, by which belongings and household articles of the petitioner and his family were burnt to ashes and the six accused, according to the complainant, are relatives and they had a common intention to commit the above said offence to burn the house of the complainant i.e. the present petitioner. It is also disclosed in the complaint that during setting fire in the house of the complainant, the original accused Nos. 1, 2 and 3 were also sustained burn injuries and due to this burn injuries they died during treatment in the hospital. It is also disclosed in the complaint that for this incident, a complaint is also filed against the father of the present petitioner and brother Safarajkhan Sattarkhan Pathan and Sikandarkhan Sattarkhan Pathan before the the Kalol Police Station which has been registered as Crime Register No. 90/97 on 23.5.1997. The present petitioner's father and the brothers were charged for the offences u/Ss. 436, 34, 326 and 307 of the IPC in the above said Crime Register No. 90/97, which was altered to Sec. 302 of the IPC on the death of three of the accused mentioned herein.

(3.) Learned Magistrate on the same day passed an order and directed the Police to investigate the complaint u/S. 156(3) of the Criminal Procedure Code. Thereafter, the Police Inspector, Kalol City Police Station, filed a report with regard to the above said complaint before the Judicial Magistrate First Class on 7.2.1998, wherein the Investigating Officer i.e. Police Inspector, Kalol City Police Station came to the conclusion that one incident between the parties took place on 14.5.1997, for which a complaint as Crime Register No.86/97 was recorded before the Kalol Police Station for the offences punishable u/Ss. 302, 307, 326, 34, 147, 148, 149 and 504 of the IPC against the father of the present petitioner and other accused. The complaint was lodged on 14.5.1997, in which one Abdulkhan Pirzadakhan due to injuries died and the accused including the father of the petitioner were arrested on 3.6.1997. In this crime register, it is stated that this session trial was conducted and was completed which was resulted in conviction of the accused including the father of the petitioner. In the report, the Investigating Officer i.e. Police Inspector, Kalol City Police Station, further stated that in the above said Crime Register No. 86 of 1997, the accused including the father of the petitioner were absconding and during that period on 20.5.1997 at about 2130 hours (1) Pathan Anavarkhan Abdulkhan, (2) Tajmahamad Sulatankhan Pathan, (3) Amajadkhan Mahamadkhan Pathan, had gone to Gullistapark Society and were passing through near the house of the father of the petitioner. At that time, the accused of Crime Register No. 90 of 1997 took Anavarkhan Abdulkhan, Tajmahamad Sulatankhan and Amajadkhan Mahamadkhan, in the house of the father of the petitioner and after sprinkling the liquid like petrol, all the three were burnt by lighting fire on them. All the three above persons received serious injuries and in this fire, the household articles of the father of the complainant were also damaged due to fire. A complaint was registered against the father of the petitioner and other accused vide Crime Register No. 90 of 1997 before Kalol City Police Station on 23.5.1997 at 1430 hours. All the above three persons during treatment were died and, therefore the charge was altered to Sec. 302 of the IPC against the father of the petitioner along with other accused. It is also further mentioned by the Investigating Officer in his report that all the three victims were died due to burn injuries, offered their Dying Declarations, in which they have stated that (1) Saffarkhan Pirzadakhan (father of the petitioner), (2) Sarafarajkhan Sattarkhan, (3) Sikandarkhan Sattarkhan, (4) Salim Kalolwala and (5) Salim Amadabadi, set them to fire. Investigating Officer enclosed the copies of these DDs with his report to the Judicial Magistrate First Class. Therefore, it was the conclusion of the Investigating Officer in the complaint filed by the present petitioner that the petitioner has filed the complaint, which is registered as Inquiry Case No. 35 of 1997, to create his defence in the above said Crime Register No.90/97. It was also stated by the Investigating Officer that the complainant has never given any complaint before the Police from the date of incident to 6th August, 1997. In the opinion of the Investigating Officer, the offence and the incident of the Crime Register No. 90/97, and mentioned in the complaint filed by the complainant i.e. Inquiry Case No. 35 of 1997 appears to be the same and, therefore, this complaint, according to the Investigating Officer, has been filed by the complainant only to create defence in the other criminal case registered against the father of the petitioner as Crime Register No. 90/97.