STATE OF GUJARAT Vs. NILESHKUMAR NANALAL

JUDGEMENT

(1.) THIS appeal is filed by the State challenging the judgement of acquittal rendered by the learned Additional Sessions Judge, Junagadh in Sessions Case No. 82 of 1992. The original accused were charged with offences punishable under Section 302 read with Section 34 of IPC and Section 498A of IPC. They were acquitted of all charges, upon which, this appeal is presented. During the pendency of the appeal, respondent Nos. 2 and 3 i.e. original accused Nos. 2 and 3 died. This appeal qua such accused therefore, stands abated. We are, therefore, concerned with only accused No.1 Nileshkumar Nanalal Mehta, husband of deceased Bhavna.

(2.) MARRIAGE of Bhavna and Nilesh took place about two years before the date of the incident. According to the prosecution, the relations between the husband and wife were not cordial. On 14.04.1992, the husband enraged by the persistent refusal of the wife to give divorce and encouraged by other co -accused, poured kerosene on her and set her on fire. She was taken to the hospital for treatment. She, sometime later, succumbed to extensive burn injuries. Before her death, police recorded her statement in the form of an FIR. The Executive Magistrate recorded her dying declaration. Charge was framed at Exh 1 alleging that all the accused had committed offence of murder punishable under Section 302 of IPC read with Section 114 thereof. The defense version, however, was that Bhavna received accidental burn injuries while catching fire from a kerosene stove in the kitchen.

(3.) CHANDRAKANT Bhovanbhai Patel, PW 3 Exh 42 was the PSI at Junagadh City Police Station, who had recorded the FIR. He deposed that, on 14.04.1992, a communication was received from the medical officer, Junagadh conveying that one Bhavnaben Nileshkumar Mehta of Nakra village was brought to the hospital for treatment. The constable on duty Shri J.L.Bhatt, was sent who, upon inquiry, found that the lady was serious. He, thereupon, went to the burns ward of the hospital and recorded the FIR. She was fully conscious. He had taken down the FIR as given by her. It was read out to her. He had asked the relatives of the lady to leave before taking down the FIR. Though she was literate, she was not in a position to sign. Her thumb impression was, therefore, obtained. The FIR was produced at Exh 43. She died at 4.30 in the afternoon. Yadi from the hospital was produced at Exh 17. According to him, he had reached the hospital at 12.30 in the afternoon. Bhavna was speaking clearly and the writer would write down whatever she said. He had verified that the FIR was recorded as narrated by Bhavna. In the cross examination, he stated that four or five persons were near the bed of the patient. He was not sure whether they were her relatives. Till he was in the hospital, Executive Magistrate Mr. Herma had not arrived.