IRFAN Vs. STATE OF GUJARAT

JUDGEMENT

(1.) PRESENT appeals, filed under Section 374 of the Code of Criminal Procedure, 1973, are arising from the common judgment and order of conviction dated 29.1.2011 passed by the learned Third Additional Sessions Judge, Morbi, in Sessions Case No. 7 of 2010. Both are decided by this common judgment and order. The said case was registered against the appellant -original accused No. 2 in Criminal Appeal No. 272 of 2011 and appellants - original accused Nos. 1 and 3 in Criminal Appeal No. 433 of 2011, for the offences punishable under Sections 302, 323, 504 and 114 of the Indian Penal Code. The appellants were sentenced for life and to pay fine of Rs. 2,000/ - each, in default, rigorous imprisonment for three months for the offence punishable under Sections 302 of the Indian Penal Code and no separate sentence is awarded for the offence punishable under Section 323, 504 and 114 of the Indian Penal Code.

(2.) ACCORDING to the prosecution case, the deceased complainant was residing near the house of the accused persons and on 20.11.2009, at about 12:00 Hrs., in the noon, the son of the original accused No. 1 was passing urine in the rickshaw of the complainant, in turn, the complainant asked the accused No. 1 to clean his rickshaw. Therefore, the accused No. 1 got excited and abused the complainant. Thereafter, after returning to home, the complainant showed the son of the accused, who was passing urine in rickshaw of the complainant and therefore, the complainant again told the accused about the same. At that time the accused No. 1 got exited and all the accused i.e. present appellants gave kick and fist blows to the complainant. The accused No. 3 caught hold of the complainant, the accused No. 2 poured kerosene on the complainant and the accused No. 1 ignited the complainant with matchstick knowing fully well that it may cause death of the complainant. On 20.11.2009, one ASI Mr. Jayendrasinh Zala was on duty at Rajkot Civil Hospital Police chowky on or around 12:00 p.m. to 8:00 p.m. and on the very day, at about 3:30 p.m., one case of burn injury was informed by the Doctor to him and therefore, said Mr. Zala went to burn ward and he prepared one yadi to the Executive Magistrate to record dying declaration and then he made entry and statement of deceased Zinnatben, wife of Husainbhai was recorded and he made entry at Sr. No. 15 on page 75 in MLC register. Said Mr. Zala recorded the statement of said Zinnatben at that time, she was totally conscious and she was able to speak properly. Said Zinnatben has disclosed the incident before the said ASI and said statement was recorded through his writer Jaysukhbhai and signature of said Zinnatben was obtained in the said statement. Then the yadi made to the Executive Magistrate, Mr. Rajnikant Rajguru, Executive Magistrate of Rajakot, and said Executive Magistrate went to the hospital, in burn ward and met to the Doctor and in the presence of Doctor, he recorded dying declaration of said Zinnatben and endorsement regarding consciousness of patient was made by the Doctor. He also found that at the time of recording of dying declaration, the said Zinnatben was found conscious. Thereafter, upon receipt of the information, PSI Mr. Sundarlal Amlani serving at Morbi City Police Station, went Rajkot Civil Hospital, where the deceased was referred from Morbi Hospital and the deceased disclosed entire incident in the form of complaint before said Mr. Amlani and signature of the deceased was also obtained. On 22.11.2009, recovery panchnama of cloths of victim was drawn. Thereafter, investigation was handed over to PSI Mr. Ashokkumar Pandya, Morbi City Police Station. Said Mr. Pandya registered the offence punishable under Sections 307, 323, 504 and 114 of the Indian Penal Code and panchnama - scene of offence, statements of witnesses, panchnama of injured person were drawn by one Head -Constable and the panchnama of arrest of the accused No. 1 and other accused were drawn by said Mr. Amlani and all other papers were tagged with the investigation papers. Thereafter, during the course of medical treatment, the injured had expired and so that inquest panchnama was drawn and the concerned Investigating Officer Mr. Pandya made report to the concerned court for addition of offence under Section 302 of the Indian Penal Code and the dead body was sent for Post Mortum and the recovered muddamal were sent to the FSL for analys is and thereafter, reports were collected. Then, the charge -sheet came to be filed against present appellants - accused before the Additional Chief Judicial Magistrate and as the case was sessions triable, the same was committed to the Court of Sessions.

(3.) TO prove the case against the accused persons, the prosecution examined following witnesses: