ALI FAKHIR MAMAD DAFER Vs. STATE OF GUJARAT

JUDGEMENT

(1.) Present Appeal arises out of the judgment and order rendered by the learned Additional Sessions Judge, Jamnagar in Sessions Case No. 77 of 1994 on 31st May, 1999. The appellant who was the accused before the Sessions Court came to be tried for the offence of murder of his wife Roshanben by setting her on fire after pouring kerosene over her at about 3.00 p.m. on 4th May, 1994 in their residential house at Dafervas, Behind Vora Boarding at Dhrol. 1.1 As per the prosecution case, the appellant and his wife Roshanben were staying at Dafervas, Behind Vora Boarding at Dhrol around the time of the incident. The brother and sister of the deceased were also staying in the vicinity. On the day of the incident, the appellant came home in a drunken condition. The deceased, therefore, rebuked him. As a result, he got annoyed and poured kerosene over the deceased and set her to fire. The deceased ran out of the house shouting for help. Hearing the shouts, brother of the deceased Haji Suleman rushed to help her and extinguished the fire. The deceased was then taken to Community Health Centre at Dhrol but because she had sustained extensive burns, she was referred to Irwin Group of Hospitals at Jamnagar. The police was informed and in turn, police came to the hospital, recorded the F.I.R. of the deceased while summoning the Executive Magistrate for recording the dying declaration. On the basis of the F.I.R., offence was registered and investigated. The Executive Magistrate also arrived and recorded dying declaration of the deceased. After proper investigation, the investigating agency, having found sufficient material against the appellant, filed chargesheet against him in the Court of J.M.F.C., Dhrol. However, since the offence registered against the appellant was triable exclusively by the Court of Sessions, the case was committed by learned J.M.F.C., Dhrol to the Court of Sessions at Jamnagar and Sessions Case No. 77 of 1994 came to be registered.

(2.) Learned Additional Sessions Judge framed charge at Exh.11. The accused - appellant pleaded not guilty to the charge and claimed to be tried. The prosecution led evidence and the learned Additional Sessions Judge, after recording the statement of the accused under Section 313 of the CrPC and hearing the learned advocate for the accused as well as the learned Public Prosecutor, came to the conclusion that the prosecution was successful in establishing the charge of murder against the accused - appellant. The learned Additional Sessions Judge sentenced the accused - appellant to undergo imprisonment for life and to pay fine of Rs.1,000/-, in default, to undergo Simple Imprisonment for six months. Aggrieved by the said judgment and order, the present appeal is preferred. We have heard learned advocate Mr. Lakhani for the appellant and learned APP Mr. Prachhak for the State. We have been taken through the record and proceedings by both of them which is before us. Learned advocate Mr. Lakhani has raised a contention that the Trial Court has committed an error in appreciating the evidence. The Trial Court has given undue weightage to the dying declaration made before the Executive Magistrate and the F.I.R. recorded by a police officer. Mr. Lakhani submitted that there is a chain of circumstances in form of contemporaneous record to indicate that the appellant was not involved in the incident.

(3.) Mr. Lakhani, in order to substantiate his contention, submitted that the case paper of Community Health Centre at Dhrol (Exh.64) contains an endorsement implicating the appellant which is made, admittedly, subsequently by the doctor. It is a clear case of interpolation as the ink is different. The explanation given by the doctor would not inspire confidence if Exh.64 is seen. Mr. Lakhani also submitted that the Refer Note given while sending the patient to Irwin Hospital at Jamnagar, the telephone message recorded by Dhrol Police (Exh.54) and the case papers at Irwin Hospital at Jamnagar (Exh.23) do not implicate the appellant. Mr. Lakhani submitted that Dr. Jacob who has recorded history in that case paper has not been examined at all. The history which is written down in the case paper (Exh.23) has interpolations and no explanation in that regard is tendered by the prosecution. There is no evidence to show that the deceased was in a fit mental state to give declaration when the F.I.R. was recorded and when the dying declaration was recorded by the Executive Magistrate. The deceased was given a sedative and, therefore, this would be important. Mr. Lakhani also submitted that except some parts of the face, the entire body of the deceased had sustained burns injuries, as per the medical evidence. The injured parts were applied medicine and were bandaged. If that is so, thumb impression could not have been obtained by the police officer as well as the Executive Magistrate who both claim to have taken thumb impression of the deceased. The thumb impressions which are found on the F.I.R. as well as the dying declaration are clear impressions of thumb and not smudged.