STATE OF GUJARAT Vs. CHANDULAL SHANKERLAL PARMAR

JUDGEMENT

(1.) The facts giving rise to this appeal may be summarised thus: According to the prosecution, the respondent had sent his wife, named, Kantaben, to fire around 11 a.m. on 8th July 1983. He was a liquor addict and his wife reproached him for his drunkenness and that is why she was done to death by setting her to fire after pouring kerosene over her body. The burning lady cried and shouted for help. Some people gathered together and extinguished the fire. She was carried to the Civil Hospital at Nadiad. Her dying declaration was recorded by the Executive Magistrate. Therein she pointed her accusing finger against her husband, that is, the respondent in this appeal. Prior to that she is stated to have informed the doctor at the time of recording the history of her case that she was set to fire by her husband. She ultimately breathed her last at about 11.10 p.m. on that very day. It may be mentioned at this stage that the doctor treating her did not himself inform the police of the incident. He is stated to have asked her relatives to inform the police of the incident. It would not be out of place to note that the incident took place in village Dumral in Kheda district. It appears that its Deputy Sarpanch, named, Mohanbhai Kodabhai, was also one of the persons carrying the deceased to the hospital. He appears to have informed the police about the incident. He merely conveyed the message that the patient had received burn injuries. The message was received by the Police Station Officer at about 2.15 p.m. on that day. It was recorded in the telephone vardi book maintained at the police station. Its extract is at Exh. 26 on the record, of the case. It appears that on receipt of this information, Police Constable Manjibhai went to the Civil Hospital at Nadiad for recording the statement of the patient but she was not found conscious. After her death, the police was informed of it. Thereafter the complaint of the complainant, the cousin of the deceased, was recorded. It is at Exh. 10 on the record of the case. The machinery of investigation was then put to motion. On completion of investigation, the charge-sheet against the respondent as the accused was submitted to the Court of the Judicial Magistrate (First Class) at Nadiad charging the respondent as the accused with the offence punishable under Section 302 of the Indian Penal Code, 1860 ('the IPC' for brief). Since the case was triable by the Court of Sessions, the learned trial Magistrate committed it to the Sessions Court of Kheda at Nadiad for its trial. It came to be registered as Sessions Case No. 158 of 1983. It appears to have been assigned to the learned Additional Sessions Judge for trial and disposal. The charge against the accused was framed on 29th December, 1983. It is at Exh. 3 on the record of the case. He did not plead guilty to the charge. He was thereupon tried. After recording the prosecution evidence, his further statement under Section 313 of the Cr. P.C. was taken down. His defence was that of not only denial of the prosecution case but was also to the effect that it was a case of suicide. In his defence version, he has stated that about a year prior to the incident in question she tried to commit suicide by consuming poison. He however did not step into the witness box nor did he lead any evidence in defence at trial. In his further statement, he produced one fixed deposit receipt for Rs. 7,000/- in the name of the deceased, that is, his wife. It has been taken on record at Exh. 29. After hearing arguments, by his judgment and order passed on 31st January 1984 in Sessions Case No. 158 of 1983, the learned Additional Sessions Judge of Kheda at Nadiad acquitted the accused of the charge levelled against him. The aggrieved State has thereupon invoked the appellate jurisdiction of this Court by means of this appeal under Section 378 of the Cr. P.C.

(2.) Shri B. D. Desai, the learned Addl. Public Prosecutor, for the appellant -State has taken us through the entire evidence on record and submitted that the prosecution can be said to have proved its case beyond any reasonable doubt. Shri Desai for the appellant-State has urged that the learned trial Judge was in error in not relying on the dying declaration of the deceased for the purpose of convicting the respondent herein of the charge levelled against him. Shri Desai for the appellant-State has submitted that the reasons given by the learned trial Judge for not accepting the dying declaration are based on conjunctures and surmises and the acquittal ordered on the basis of such reasoning cannot be sustained in law. As against this, Shri Amit Shah for the respondent has submitted that the learned trial Judge has rightly given the benefit of doubt to the respondent as the accused and the impugned judgment and order of acquittal calls for no interference by this Court in this appeal. Shri Shah has further urged that, even if the view canvassed on behalf of the prosecution is accepted as a possible view, the view expressed by the learned trial Judge is also a possible view and the impugned judgment and order of acquittal calls for no interference in this appeal simply on the ground that the other view is also possible.

(3.) It may be mentioned at this stage that, except the Executive Magistrate at Exh. 15 and Dr. Gohil at Exh. 19, no prosecution witness, including the first cousin of the deceased, that is, the complainant, has supported the prosecution case at trial. All the other witnesses have turned hostile.