STATE OF GUJARAT. Vs. BALVANTBHAI RAMANLAL SHRIMALI

JUDGEMENT

(1.) THIS appeal is directed against the judgment and order dated 30.07.1998, passed by the learned Additional City Sessions Judge, Court No.14, Ahmedabad, in Sessions Case No.174 of 1994, whereby the respondent ­ original accused has been acquitted of the offences punishable under Sections 306 and 498A of the Indian Penal Code.

(2.) BRIEFLY stated, the case of the prosecution is that deceased Bhartiben was married to the respondent and the marriage span was about six years at the time of the incident. Out of the said wedlock, Bhartiben had a son aged 4 years and a daughter aged 1 1/2 years. It is the case of the prosecution that on 30.06.1993, the deceased had gone to her parental house at Balasinor with her younger sister Kailash and returned at about 4:30 pm, on 02.07.1993. Thereafter, she had cooked the evening meal and was standing in front of her house in the hutments in the riverbed near Raikhad. The respondent came home in a drunken condition at about 8:00 pm and started abusing the deceased. He hit the deceased on her face due to which her lips were swollen. Being extremely hurt, the deceased started to cry and ran into the house. She closed the door, took out kerosene from the stove, sprinkled it on her person and set herself ablaze with a matchstick. The case of the prosecution is based upon the complaint dated 02.07.1993 given by the deceased herself. As per the said complaint, there were frequent quarrels between the deceased and the respondent was in the habit of consuming liquor. About five months prior to the incident, there had been a quarrel between the deceased and the respondent who had abused the deceased and beaten her up. The deceased had gone to her parental house and thereafter, a compromise was affected by the elders of the community after which the deceased came to her matrimonial house. The deceased has categorically stated in her complaint that she has no complaint against her motherinlaw or any other person in her husband's family. Pursuant thereto, an FIR was registered as I C.R.No.123/1994 at Gayekwad Haveli Police Station for offences punishable under Sections 306 and 498A of the Indian Penal Code. After commencement of investigation, the statements of witnesses were recorded. The inquest was carried out on the dead body of the deceased which was sent for autopsy and the Inquest Panchnama Ex.19 was recorded. A Panchnama of the scene of offence was also recorded. At the end of the investigation, as sufficient incriminating material was found against the respondent, he came to be chargesheeted, which was submitted against the respondent in the Court of learned Metropolitan Magistrate on 14.02.1994. However, as the charges are exclusively triable by the Court of Sessions, the learned Magistrate committed the case to the Court of Sessions. Charge, Ex.2, was framed against the accused. After the evidence of the prosecution was over, the Trial Court explained to the accused, the statements appearing against him in the evidence of the prosecution witnesses and recorded his statement under Section 313 of the Criminal Procedure Code. The respondent denied his guilt and claimed to be tried. Accordingly, the case was put to trial. At the end of the trial, on appreciation of the evidence on record, the Trial Court came to the conclusion that the prosecution has been unsuccessful in proving the guilt of the accused beyond reasonable doubt and acquitted the respondent of the offences with which he was charged, giving rise to the present appeal.

(3.) MR .Himanshu K.Patel, learned Additional Public Prosecutor, has submitted that the Trial Court has committed an error in discarding the version given by the deceased herself, in the complaint as well as the Dying Declaration. There is consistency regarding the description of the incident in the complaint as also in the Dying Declaration. It has come in the evidence of PW8, the Executive Magistrate, who recorded the Dying Declaration, that the deceased was conscious and was able to talk when the Dying Declaration was recorded. The learned Additional Public Prosecutor has further submitted that it is a settled position of law that a conviction can be based upon the Dying Declaration, provided it is found to be trustworthy. In the present case, there are no discrepancies in the complaint and the Dying Declaration which has been consciously given by the deceased, therefore, it could not have been brushed aside and discarded, as has been done by the Trial Court. It is further submitted that the Executive Magistrate has deposed that he could not take the thumb impression of the deceased on the Dying Declaration, as her fingers were bandaged due to burns. Even if the Dying Declaration is not taken into consideration, the complaint given by the deceased herself bears her right thumb impression and could have been considered. The learned Additional Public Prosecutor has pointed out that the deceased has categorically stated in both the Dying Declaration and the complaint, that she has committed suicide due to the abuses and beatings given by the respondent to her, immediately before the incident. That, there is proximity between the beating and the abuses given by the respondent to the deceased and the incident itself, therefore, it is a fit case in which a conviction could have been recorded. The learned Additional Public Prosecutor has further submitted that one of the reasons that has weighed with the Trial Court is that the investigation has not been properly conducted, inasmuch as one Natubhai, the brotherinlaw of Babubhai Shivabhai, father of the deceased, who had informed Babubhai regarding the incident, has not been examined; and further, one Bhimabhai Ramabhai, who had brought the deceased to the hospital, has also not been examined as a witness. It is submitted that these are minor irregularities that cannot be a ground for recording a finding of acquittal. That even though the father and mother of the deceased have turned hostile, the Dying Declaration and the complaint recorded by the deceased herself, ought to have been believed. On the strength of the above submissions, it is submitted that the appeal be allowed and the impugned judgment and order of acquittal be quashed and set aside.