STATE OF GUJARAT Vs. GHOGHA VIRJI BARAIYA

JUDGEMENT

(1.) THESE appeals are filed by the State Government and arise out of the judgment dated 6.2.1992 rendered by the learned Additional Sessions Judge, Rajkot in Sessions Case No. 46 of 1990.

(2.) THE respondent Ghogha Virji Baraiya was charged with offence punishable under Section 302 of the Indian Penal Code. Allegedly, on 2.3.1990 in the evening hours he poured kerosene on Premiben Ghoghabhai when she was washing clothes and then set her on fire thereby causing her death. The Sessions Court believed the involvement of the accused but came to the conclusion that his act could not be stated to be one with an intention of causing death. He was therefore not convicted for the offence under Section 302, but under Section 304 Part II of the Indian Penal Code. He was sentenced to rigorous imprisonment of two years. The State questioning the acquittal of the accused under Section 302 of the Indian Penal Code as well as adequacy of sentence for conviction under Section 304 part II has filed two separate appeals. Before the learned trial court, the prosecution has produced the dying declaration of the deceased at Exh.14, which was recorded by the Executive Magistrate Khimjibhai Govindbhai Ujariya P.W. 2 Exh.12. The prosecution also relied on the depositions of mother of the deceased Santokben P.W.3 Exh.15, Magan Sidhi P.W.4 Exh.16, the brother of the deceased, Shivabhai Virjibhai P.W. 11 Exh.29, the brother of the accused and Mahesh Ghoghabhai P.W. 18 Exh.39, the son of the accused, and the deceased. All these persons referred to the dying declaration by Premiben when they individually met her at the hospital where she was taken after receiving burn injuries. The prosecution also relied on the First Information Report Exh.35, which was given by the deceased herself.

(3.) IN so far as the evidence of involvement of accused is concerned, there is little doubt in our mind about the correctness of the findings of the trial court. As noted earlier, and apart from the dying declaration formally recorded by the Executive Magistrate, the deceased had before her death revealed the cause of death to several relatives, which included not only her own mother and brother but also her son, who is also the son of the accused, and the brother of the accused. We would have discussed the evidence in greater detail but for the fact that in our opinion an important aspect of the matter was totally lost sight of by the trial court during the conduct of the trial. This pertains to the mental condition of the accused himself. It had come on record through various sources that apparently the accused suffered from unstable mental condition. In the First Information Report itself his wife had stated that her husband was not doing any work and since about eight years suffered from mental instability. Even in the dying declaration when she was asked what did her husband do, she had stated that he is of unsound mind, he is erratic and therefore works only when in the mood to do so or else he sits idle. When asked why did he set her on fire she stated she did not know. She clarified that her husband was frequently quarreling with her, he was not doing any work, would only take his meals and disappear. Even the brother of the accused Shivabhai Virjibhai P.W. 11 Exh.29 in his deposition had stated that the accused was not doing any work. He could not do work because he was of unsound mind. He further stated that the accused is very often get excited and often would not listen to any reasoning. He was not of unsound mind since birth. He needed to be taken to a doctor but he was not ready for that. Even the son of the accused Mahesh Ghoghabhai P.W. 18 Exh.39 stated that he was not doing any work since long.