STATE OF GUJARAT Vs. HARIJAN KALABHAI SOMABHAI

JUDGEMENT

(1.) BY this appeal under section 378 of the Code of Criminal Procedure, 1973 (hereinafter referred to as "the Code"), the appellant ­ State of Gujarat has challenged the judgment and order dated 2nd August, 1995 passed by the learned Additional Sessions Judge, Gondal in Sessions Case No.30/1995 to the extent the respondents have been acquitted of the offences other than section 498-A of the Indian Penal Code.

(2.) THE prosecution case is that the first informant Diwaliben, wife of Soma Kala (the respondent No.1 herein) was residing at Movia village of Gondal taluka and was an agricultural labourer. Her husband was a driver and she had six children. They are living separately from her brother-in-law and her sister-in-law. Her mother-in-law and father-in-law have expired. On 12th January, 1995 in the afternoon at about 12 o'clock, her husband Kalabhai was intoxicated and started abusing her and thereafter went to sleep. The first informant and her elder daughter Hansa went outside their house in the open plot. Sometime after her husband fell asleep, the first informant and her daughter entered the house. At about 7 o'clock in the evening, her husband asked for some money for the purpose of purchasing liquor and as the first informant did not have the money, she refused to give him any money whereupon he had got incited and started abusing her and gave her two to three slaps on her cheeks and there was an argument between them. The first informant, therefore, lost her temper and she took the tin of kerosene lying in the house and sprinkled kerosene over herself and took out a flaming stick from the stove and set herself on fire. At that time, her husband Kalabhai was present and her elder daughter was outside the house. When her body started burning, the first informant came outside the house. At that time, her husband and her daughter covered her with a blanket and thereafter she was taken to the hospital at Gondal. At that time her neighbour Bachubhai Bhikhabhai and her daughter Hansa took her in a rickshaw. From Gondal, she was taken to Rajkot in an ambulance. It was alleged that her husband Kalabhai, time and again, used to beat her during the fifteen years of her married life. That he used to demand money for purchasing liquor and upon her refusing to do so, he would beat her up. On the day of the incident, upon her husband demanding money for liquor and her refusing the same, he had slapped her whereupon she had sprinkled kerosene upon herself and set herself on fire. The first informant gave her complaint at the Rajkot Government Hospital where the same was registered, pursuant to which the Investigating Officer carried out investigation and submitted charge-sheet before the learned Judicial Magistrate First Class on 13th February, 1995. The offences being in the nature of sessions triable offences, the case came to be committed by the Sessions Court where it was registered as Sessions Case No.30/1995. During the course of the trial, the prosecution examined as many as nineteen witnesses and also produced other documentary evidence on record. The learned Sessions Judge, after appreciating the evidence on record, found that the prosecution had established the offence under section 498-A against the accused No.1 and sentenced him to imprisonment for a period of two years and a fine of Rs.1,000/-. However, he acquitted him of the other offences with which he was charged.

(3.) A perusal of the record of the case reveals that the deceased had, in all, given two dying declarations. The first dying declaration came to be recorded by P.W. 14-Mansukhlal Bhaishankar Vyas who, at the relevant time, was discharging duties as a PSO. He has deposed to the effect that when he went to Rajkot Civil Hospital, he had met the doctor. When he recorded her complaint, the deceased was fully conscious. That she had stated that on the day of the incident, the accused had demanded Rs.20/- from her, however, upon her not giving him such amount, he had beaten her up, because of which, she got angry and she sprinkled kerosene over herself and took a flaming stick from the stove and set herself on fire. At that point of time, her daughter and husband were present. Another dying declaration has been recorded by the Executive Magistrate-Dr. Arvindbhai Manjibhai Kalasva who has been examined at Exh.13. He has deposed to the effect that when he went to the hospital, the doctor had certified that the patient was fully conscious and was in a fit position to give the dying declaration. He has further deposed that he had recorded the dying declaration in question and answer form. In reply to the question as to why she was brought to the hospital, the deceased had answered 'because she got burnt'. Upon asking her as to how she got burnt, she had said that she had set herself to fire at her house. To a query as to why she had set herself on fire, she had said that her husband was a truck driver and used to consume liquor. In the afternoon also, he had consumed liquor and in the evening he had demanded money from her for purchasing liquor and upon her not giving him money, he had told her to set herself on fire and die. Hence, she had sprinkled kerosene on herself and as she could not find a matchstick, she had taken a burning stick from the stove and set herself on fire. Upon his asking her as to whether there was any other harassment, she had said that her husband used to time and again consume liquor and beat her up and hence, she had decided to commit suicide. This, in sum and substance, is the dying declaration of the deceased. The prosecution has also examined the close relatives of the deceased, namely, the mother of the deceased as well as the neighbours who had brought her to the hospital and her daughter. However, all the said witnesses have been declared hostile to the prosecution case. Thus, the entire evidence turns on the dying declarations given by the deceased.