SHIVJI VACHHIYA MAHESHWARI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) THIS appeal is preferred to challenge judgment and order rendered by Sessions Court, Kutch � Bhuj on 24.03.2006 in Sessions Case No.31 of 2005. The appellants were accused before the Sessions Court and were charged for the offences punishable under Section 302 read with Section 114 and Section 504 read with Section 114 of Indian Penal Code. They were found guilty of the said offences and were convicted for the offence of murder. They are sentenced to imprisonment for life and to pay a fine of Rs.3,000/- each, in default, to undergo simple imprisonment for three months, for the offence punishable under Section 504 read with Section 114 of IPC, they are sentenced for simple imprisonment for three months and fine of Rs.500/- each, in default, to undergo simple imprisonment for one month. All sentences were ordered to run concurrently and they were all accorded benefit of set off.

(2.) BRIEF facts of the case are that the accused � appellant No.1 Shivji Vachhiya Maheshwari and accused � appellant No.3 Hasbai Ravji Laxman are brother and sister, whereas accused � appellant No.2 Devalbai Shivji Vachhiya is wife of accused No.1. Accused No.1 has a brother whose name is Premji Vachhiya Maheshwari who was married to Damiyantiben. 2.1 Premji Vachhiya Maheshwari and his wife Damiyantiben were stayed at Village Mota Reha. The appellants also stayed at Mota Reha but in separate houses. As per the prosecution case, on 07.06.2005, at about 7:00 a.m. Damiyantiben, wife of Premji Vachhiya Maheshwari was cooking in her house when the three appellants went there and abused her and they set her to fire after pouring kerosene. As a result of which, Damiyantiben suffered 85% burns. After setting her to fire, the three appellants ran away. Hearing her shouts, her husband came so also neighbouring people. The fire was extinguished and the victim was taken to the hospital. History to Police Constable posted at the hospital was given by the husband of the victim and thereafter the constable informed the Bhuj Taluka Police Station. He also informed the Executive Magistrate requesting him to record dying declaration of the victim. Upon arrival of the Executive Magistrate, a Yadi was given to him by the police. The Executive Magistrate got verified the condition of the victim through the doctor and the doctor certified that she was conscious and was able to speak. Thereupon a dying declaration was recorded by the Executive Magistrate. After departure of the Executive Magistrate, police arrived and recorded FIR of the victim. The FIR was given by the deceased with little more details. On basis of that FIR, offence was registered and investigated, and having ultimately found the material to be sufficient to connect the accused with the crime police filed chargesheet in the Court of learned Chief Judicial Magistrate, Bhuj, who in turn committed the case to the Court of Sessions and Sessions Case No. 31 of 2005 came to be registered. 2.2 Charge was framed against the accused at Exh.1 to which they pleaded not guilty and came to be tried. The trial court, after examining the evidence, found them guilty and sentenced them as stated hereinabove and hence this Appeal.

(3.) UNDISPUTEDLY, the prosecution case relies mainly on the dying declaration as there is no eye-witness to the incident. The first dying declaration was recorded by Executive Magistrate Mr.Parmar, who came to the place on being summoned telephonically by the constable of the duty at the hospital, and who was then served a Yadi. The Yadi to the Executive Magistrate Exh.22 if seen, would indicate that the PSO, Bhuj indicated that the deceased has been brought to G.K.General Hospital in burns ward upon her sustained burns while cooking and a request was made to record her dying declaration. That Yadi contains a certificate issued by the doctor in form of an endorsement that the patient was conscious and can talk. This endorsement was made at 11:00 a.m. The Executive Magistrate arrived at G.K.General Hospital at about 13:20 hours on 7.6.2005. He again brought to the doctor and the doctor put an endorsement on the dying declaration Exh.23 that the patient was fully conscious and is competent to give dying declaration and thereafter the dying declaration is recorded. It was recorded from 13:20 hours to 13:45 hours. In the said dying declaration, it was stated that the deceased suffered burns at 7:00 a.m. However, her brother-in-law Shivji Vachhiya Maheshwari (A-1), her sister-in-law Devalbai Shivji Vachhiya (A-2), and her sister-in-law Hasbai Ravji Laxman (A-3) came to her house, poured kerosene, set her to fire and ran away. It is also stated that they stayed away from her which is at a little distance. Earlier they had taken away some rice and a watch about which there was some dispute was going on inter-se, and according to victim, the incident occurred only on such a petty issue. The victim stated further that she was married about 8 years prior to the incident. Then she give details about her children and her in laws. The thumb impression of the deceased was taken by the Executive Magistrate and certified.