STATE OF GUJARAT Vs. BHARATSINGH GOVUBHA JADEJA

JUDGEMENT

(1.) THE present appeal, under section 378(1) (3) of the Code of Criminal Procedure, 1973, is directed against the judgment and order of acquittal dated 27.1.2003 passed by the learned Additional Sessions Judge, Jamnagar, in Sessions Case No.3 of 2000, whereby the accused persons have been acquitted of the charges leveled against them. This Court on 19.7.2006 admitted present appeal against the respondent No.1.

(2.) THE brief facts of the prosecution case are as under:

(3.) IT was contended by learned APP that the judgment and order of the trial Court is against the provisions of law; the trial Court has not properly considered the evidence led by the prosecution and looking to the provisions of law itself it is established that the prosecution has proved the whole ingredients of the evidence against the present respondent. Learned APP has also taken this court through the oral as well as the entire documentary evidence. Learned APP has read the charge at Exhibit 9 and submitted that from the said charge, the allegations made against the present respondent No.1, the prosecution has proved the abetment, instigation and provocation made by the respondent No.1 to the deceased. He further read the complaint recorded by the P.I. produced at Exhibit 26 and submitted that from the beginning of the marriage, the deceased was not kept well by the respondents and there was some dispute and the accused No.1, who used to tell that he did not want her (wife) and the deceased would go to her parental home. On 16.10.1999, when the respondent - accused was going to Mata Na Madh at Kutch, and at that time, his elder brother told him to take the deceased with him, so the accused respondent told him that he did not want her and if she (deceased) would come with him, he will kill her with knife and he further told that the deceased would go to her parental home and she was beaten by him and thereafter, he went away by jeep car to Kutch. Due to such conduct on the part of the accused, the deceased committed suicide. Learned APP further stated that when the deceased was under treatment at the Hospital, the Duty Head Constable sent yadi at Exhibit 22 at 5:00 a.m. to the Executive Magistrate, and the Executive Magistrate went to the hospital and after making inquiry from the nurse and Doctor, instructed to record dying declaration of Bhavnaba. Therefore, the said Bhavnaba was examined by the Medical Officers, who were present there and informed the Magistrate that said Bhavnaba was totally conscious and she was fit to give her statement and Doctor has made endorsement about her consciousness and dying declaration of the deceased was recorded. Learned APP read dying declaration at Exhibit 23, which was recorded by P.W. 3 Dhirubhai Masrubhai Kuvadara and stated that the Doctor has made endorsement in Exhibit 23 dying declaration and certified about the consciousness of the complainant and was able to give her statement. Therefore, it is established that the complainant was fit for recording her statement before the Magistrate. Learned APP further stated that as per the evidence of this witness P.W.3 Executive Magistrate, the marriage span of the deceased was of 9 months and her husband (accused) was not calling her and yesterday (a day before the incident), quarrel picked up by the husband with the deceased and she was beaten by the husband and she was told to kill yourself (deceased) by burning. Therefore, the deceased set her at fire. She also stated in the statement that her husband went to Kutch and she was shifted in the hospital by her in -laws. Learned APP further stated that the marriage life of the deceased and accused was of only 9 months. She was not called by her husband and she was not considered as his wife from beginning of the marriage life. Learned APP further submitted that when the married wife is neglected by the husband then the conduct of the husband is required to be considered and it is required to be noted that the husband has meted out cruelty upon her. Learned APP further read the contents of the dying declaration and submitted that as per the evidence of the deceased, it is prima facie established that husband accused was always beating the deceased and the husband meted out cruelty to her. Said fact is also stated by the complainant deceased herself in her complaint recorded at hospital. Learned APP further stated that from the crossexamination of the said witness P.W. 3, it appears that the defence has never made any attempt to establish that the deceased was not in a position to speak properly and she was not conscious. Learned APP further contended that the panch witness P.W.1 Mansukhlal Vallabhdas, panch Exhibit 17 is examined by the prosecution to prove panchnama, scene of offence at Exhibit 18 and same was proved by this witness and he was cross -examined by the defence. Learned APP also read the contents of inquest panchnama at Exhibit 20 and oral evidence of P.W.2 Gambhirsinh Jivubha Jadeja, Panch witness and he was cross -examined by the defence.