STATE OF GUJARAT Vs. MANIBEN

JUDGEMENT

(1.) In this appeal which is filed under Section378 of the code of criminal procedure, 1973. The state of Gujarat, claims that respondent should not have been convicted of lesser offence punishable under part-II of Section 304 of the Indian Penal Code, but should have been convicted under Section 302 of the indian Penal Code for committing murder of her daughter-in-law.

(2.) Deceased Santokben was married to Parshottambhai Patel of village Jamvadi, Taluka Gondal- District Rajkot. During the subsistence of the marriage she had given birth to three children who were all girls. The respondent who is the mother-in-law of Santokben was dissatisfied with Santokben because she was not able to bear a boy. According to the prosecution the incident took place in the morning of November 29, 1984. On that day at about 7.00 a. m. in the morning the deceased with her youngest daughter Minaxi had gone to fetch water. After fetching water she was coming back with water pot on her head and was also carrying Minaxi. According to the prorecution, at that time the respondent came with a burning wick made of rags and set on fire the terylene clothes put on by the deceased from all sides. The deceased brought down her minor daughter whom she was carrying and managed to reach her house trailing though she had received extensive burn injuries. After reaching her house the deceased summoned her daughter Nita who had gone to attend her school. Nita in turn informed witness Babulal Liladhar and the deceased was removed to Gondal Government dispensary at about 9.35 a.rn. At Gondal Government hospital the deceased was examined by Dr.HareshKumar N. Savaliya. who was Medical Officer at the said dispensary and on finding that the deceased had sustained more than 50% burns, he advised the persons accompanying her to remove her to Rajkot Hospital. Meanwhile at about 11.20 a.m. witness D.P. Trivedi. who was then on duty as the Deputy Mamlatdar and Executive Magistrate was sent a report by Gondal Taluka Police Station informing him that the deceased was admitted to hospital With burn injuriei and he should record her dying declaration. Accordingly, Mr Trivedi, Executive Magistrate had gone to Gondal hospitol end after verifying from Dr. Savliya that deceased was conscious and in a fit state of mind to make statement, had recorded her dying declaration, which is produced on record of the case at Exh. 15. At about 11.00 a.m. on that'day an information was conveyed by Mr.Ghanshyambhai who was police constable on duty at Gondal hospital, to Umiyashanker Jivram who was P.S.O. at Gondal Taluka Police Station about the deceased having been admitted in the, hospital for treatment of her burn injuries. Mr.Umiyashanker who was P.S.O. of Gondal Taluka Police Station had in turn asked Jamadar Sultan Siddi at about 11-00 a.m. to go to the dispensary and record the complaint. Accordingly, Jamadar Sultan Siddi had gone to the Gondal hospital and recorded the complaint of the deceased at about 12.45 noon which is produced on the record of the case at Exh. 46. Thereafter, the deceased wai removed to RaJkot Government Hospital. During the course of treatment the deceased died on December 7. 1984, At the instance of Head Constable C.D. Vyas, autopsy on the dead body of the deceased was performed by Dr.Tarlikeben H. Shah. Necessary investigation into the case was made by P.S.I. Mr.L.S. Chavda, of Gondal Taluka Police Station. Mr. Chavda was assisted by Mr.Vijay J. Menad. who was then appointed as probationer P.S.I. At the conclusion of the investigation, the respondent was chargesheeted for the offence punishable under Section 302 of the Indian Penal Code. As the offence punishable under Section 302 of the Indian Penal Code is exclusively triable by Court of Sessions, the case was committed to the Court of learned Additional Sessions Judge, Gondal. Diitrict RaJkot. for trial where it was numbered as Sessions case No. 15/85. Charge aganst the respondent for the offence punishable under section 302 of the Indian Penal Code was framed which was read over and explained to the respendent who pleaded not guilty to the same and claimed to be tried. The prosecution therefore, examined; (1) Bavanji Kurji as P.W-2 Exh.7. (2) Hemkunver Jeraj as P.W.3 at Exh.8 (3) Ila Parshottam as P.W.4 at Exh.9. (4) Babulal Liladhar as P.W.5 at Exh.10, (5) Chandrika Nagji as P.W.6 at Exh.11, (6) Dr.Tarlikaben H. Shah as P.W.7 at Exh- 12, (7) Dinesh P. Trivedi as P.W.8 at Exh. 14, (8) Keshavlal Bhavanbhai as P.W- 9 at Exh. 16, (9) Bavabhai polabhai as P.W. 10 at Exh. 17, (10) Parshottam Gandubhai as P.W.ll at Exh.18. (11) Nita Parshottam as P.W. 12 at Exh.19, (12) Mina Parshottambhai as P.W.13 at Exh.20. (13) Sultan Siddibhai as P.W. 14 at Exh.21. (14) Umiyashankar jivraj as P. W .15 at Exh.28, (15) Kaviben Ghusha as P.W.16 at Exh.32, (16) Punaben Savabhai as P.W. 17 at Exh. 33, (17) Chhaganbhai Meerambhai as P.W.18 at Exh.34, (18) Dinesh Jayantilal as P.W.19 at Exh.36, (19) Dr.Haresh N. Savaliya as P.W.20 at Exh- 39 and (20) Vijay Jivraj Menad as P.W-21 at Exh.40. and also produced documentary evidence such as postmortem notes of the deceased dying declaration of the deceased recorded by Mr.Trivedi, complaint lodged by the deceased different panchnamas etc., to prove its case against the respondent. After recording of evidence of prosecution witnesses was over, the learned Judge recorded the statement of the respondent under Section 313 of the Code, in her further statement, the respondent denied the case of the prosecution, but did not examine any witness in support of her case.

(3.) On appreciation of evidence adduced by the prosecution, the learned Judge held that it was proved by the prosecution that the deceased died a homicidal death. The learned Judge referred to the complaint lodged by the deccaied as well as her dying declaration recorded by Executive Magistrate Mr.Trivedi and concluded that the contents of the First Information Report as well as dying declaration were reliable and trustworthy. The learned Judge further referred to the evidence of Dr. Tarlikaben and held that the deceased had died on December 7. 1984, because of decay which had set in the body. The learned Judge made a reference to decision of Supreme Court in jairaj v. State of Tamil Nadu A.I.R., 1976 S.C. 1519 and held that though it was proved that the respondent had set the deceased on fire, the medical evidence established that the injururies sustained by the deceased were not sufficient in the ordinary coursee of nature to cause her death and therefore the respondent had committed offence punishable under Section 304 Part-II of the Indian Penal code. The learned Judge thereafter heard the respondent regarding sentence to be imposed and after hearing the respondent, the learned Judge has convicted the respondent under Section 304 Part-II of the Indian penal Code and sentenced her to R.I. for five years and fine of Rs.3,000 in default. R.I. for one year, vide Judgment dated June 15, 1985, giving rise to the present appeal.