SAMANTBHAI NANABHAI PARMAR Vs. STATE OF GUJARAT

JUDGEMENT

(1.) The appellant is the original accused who came to be tried by learned Additional Sessions Judge, Kheda, Camping at Anand in Sessions Case No. 198 of 1994 and came to be convicted for the offence of murder of his wife Kailasben by judgment and order dated 26th July, 1999. He was sentenced to undergo imprisonment for life and to pay a fine of Rs. 1,000/-, in default, to undergo S.I. for three months. He was given benefit of set-off.

(2.) The facts of the case, in brief, are that the appellant was working as a driver with Gujarat Electricity Board and was stationed at Thermal Power Station at Vanakbori in Kheda district. He was allotted a quarter in the colony where he was staying with his wife Kailasben. It is alleged that there were some disputes between the spouses and that the appellant suspected the fidelity of the deceased and did not like her. On the day of the incident i.e. on 6th March, 1994, around 1.00 p.m., while the deceased was at home, the appellant is alleged to have poured kerosene over her and set her to fire. She raised shouts and came to be rescued. She was initially taken to the Medical Centre at the G.E.B. Thermal Power Station Hospital at Vanakbori, was given primary treatment and then was referred to Shree Krishna Hospital and Medical Research Centre at Karamsad. When she was initially taken to the Thermal Power Station Hospital, she gave history to the doctor of having been burnt by husband by sprinkling kerosene which came to be recorded in the medical case paper. On being taken to Shree Krishna Hospital at Karamsad, she again gave history of homicidal burns by her husband which again came to be recorded by the doctor in the case papers. She was admitted to the hospital and was given treatment. The medical case papers show that her condition was steady till 10th March, 1994, the day on which she expired. While she was at the hospital, the police arrived and recorded her F.I.R. In the F.I.R. also, she implicated her husband the appellant. A yadi was sent to Executive Magistrate on 6th March, 1994 summoning him to record the dying declaration of the deceased. Pursuant to the yadi, the Executive Magistrate went to the hospital and recorded the dying declaration on 7th March, 1994 in the evening at 1710 hours. In the said dying declaration, the deceased has changed her version and stated that she has sustained suicidal burns. On basis of the F.I.R., offence was registered and investigation made. The panchnama of place of incident was drawn, the accused was arrested and arrest panchnama was also drawn. On death of the deceased, inquest panchnama was drawn, post-mortem was got performed and ultimately, the Investigating Officer, having found sufficient material against the accused appellant, filed chargesheet in the court of learned J.M.F.C., Dakor. Learned J.M.F.C., Dakor committed the case to the Court of Sessions as the offence was triable by the Court of Sessions exclusively and Sessions Case No. 198 of 1994 came to be registered.

(3.) Learned advocate Ms. Acharya appearing for the appellant submitted that the prosecution has led two sets of evidence, one set of evidence implicates the appellant whereas the other exculpates the appellant. The first set which implicates the appellant is in the form of dying declarations recorded by the doctors at Vanakbori and Karamsad in the form of case history given to them by the deceased and the F.I.R. recorded by the Investigating Officer. Counterweighing this is the other set of evidence in the form of dying declaration made by the deceased before Executive Magistrate which totally exculpates the appellant as the deceased stated that she sustained suicidal burns. It was submitted that there is no reason to doubt or disbelieve the dying declaration made before the Executive Magistrate which is done by an independent person. There is no flaw in the procedure adopted by the Executive Magistrate and there is no reason to doubt the genuineness of what is recorded by him. It was also contended that there is no evidence to show as to what was the mental state of the deceased when she gave history to the doctors, as is alleged. So also, there is no evidence about her condition when the F.I.R. was recorded whereas the dying declaration before the Executive Magistrate carries a counter- signature of the doctor who was present when the dying declaration was recorded. It was, therefore, contended that the prosecution case suffers from serious defects and the Trial Court was at error in concluding that the case was proved beyond reasonable doubt. It was, therefore, submitted that the appeal may be allowed and conviction recorded by the Trial Court by the impugned judgment may be set aside.