KISHORE VEERABHAI PARGHI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) THE present appeal arises out of judgment and order rendered by Sessions Court, Rajkot at Gondal in Sessions Case No.122 of 2000 convicting the appellant for offence of murder of Hiruben and sentencing him to undergo imprisonment for life and to pay a fine of Rs.500/ -, in default, to undergo further simple imprisonment for six months. The appellant was also convicted under Section 504 of Indian Penal Code and was sentenced to rigorous imprisonment for six months and fine of Rs.500, and in default, simple imprisonment for three months by that very judgment and it was ordered that all sentences would run concurrently.

(2.) THE brief facts of the case are that deceased Hiruben and the appellant along with her another son were residing at Dasi Jivanpara, Jetpur, Rajkot District. On 10.9.2000 around 14:00 hours the appellant demanded money from the deceased mother Hiruben, and as she refused to give the money, the appellant got enraged and abused her and poured kerosene from the bottle upon the body of deceased and ignited her with a matchstick, with an intention to kill her, knowing fully well that such an act would cause death in ordinary course of nature. It is the case of the prosecution that the deceased shouted in distress and the appellant left the house. It is further the case of the prosecution that the deceased poured water from the bucket, and thereafter when her son Chandubhai came after some time, she was taken to Jetpur Government Hospital for treatment in an auto -rickshaw from where she was taken for further treatment at Rajkot Government Hospital. She ultimately succumbed to injuries on 20.9.2000.

(3.) LEARNED advocate Ms.Falguni D.Trivedi appears for the appellant. According to her, the conviction is not well -founded. According to her, the prosecution has not been able to prove the charges levelled against appellant and has further submitted that the very FIR which is in form of dying declaration is not reliable. Ms.Falguni Trivedi submitted that there is no eye -witness to the incident and the case is entirely based on circumstantial evidence and prosecution has not been able to prove the complete chain and therefore the order of conviction and sentence is erroneous. Ms.Falguni Trivedi further pointed out that there was no motive and further pointed out that the relation of the appellant and the deceased mother were cordial and that he has been wrongly roped in the offence. Ms.Trivedi has further pointed out that all set of evidence and oral testimony is full of constant variation and improvement. It is further pointed out that even the further statement of the deceased Exh.112 and the dying declaration before the Executive Magistrate does not inspire any confidence. It is further pointed out that, on the contrary, the deceased executed an affidavit on 11.9.2000 and has voluntarily declared that she was not in proper state of mind and had given wrong version before the Doctor as well as Executive Magistrate and the police because of unstable mind and that she had committed suicide. Ms.Falguni Trivedi appearing for the appellant has heavily relied upon the oral testimony of Defence Witness No.1 Shri Hiteshbhai Rajeshbhai Mehta, the advocate who had drafted the affidavit of deceased Hiruben and has pointed out that, from the oral testimony, it clearly borne out that the said affidavit was made and executed before the Notary Shri S.P.Kamdar, and what is stated in the affidavit is the true version, and therefore, she persuaded this Court by further harping upon that the FIR given by the deceased, medical history given by the deceased before the doctor, further statements as well as dying declaration are not trustworthy and therefore no reliance can be placed on such piece of evidence. Ms.Trivedi submitted that the Sessions Court has brushed aside such convincing evidence and has wrongly convicted the appellant and, therefore, the judgment and order convicting and sentencing the appellant as aforesaid deserves to be set aside. Ms.Trivedi, therefore, submitted that the appeal may be allowed by setting aside the judgment and order of conviction and sentence.