THE STATE OF GUJARAT Vs. HARIBHAI MANGALBHAI ZALA

JUDGEMENT

(1.) Feeling aggrieved and dissatisfied with the impugned judgment and order passed by the learned 3rd Joint District and Additional Sessions Judge, Camp at Anand, District Kheda (hereinafter referred to as "the learned trial Court") in Sessions Case No.223/1999 whereby the learned trial Court has convicted the respondent herein-original accused for the offence punishable under Section 304 (Part-II) of the Indian Penal Code, 1860 only for which he was tried and by which the learned trial Court has sentenced him to undergo 7 years' Rigorous Imprisonment with fine of Rs. 1000/- and in default to undergo further 3 months' Simple Imprisonment and has acquitted the respondent-original accused for the offences punishable under Section 302 and 498 A of the Indian Penal Code, State has preferred the present Appeal under section 378 of the Code of Criminal Procedure.

(2.) The incident in question took place on 26/02/1999 in the evening at about 6:00 o' clock. The victim of the incident-Shardaben, wife of the respondent-original accused, had married to the respondent-original accused for about 12 years before the incident. Both of them were residing at village Adas and had one son aged 4 years. For last three days previous to the incident, the respondent-original accused-husband was picking up quarrels with wife-deceased-Shardaben about preparing meals. On the day of the incident, the respondent-original accused had been to labour work and returned to the house at about 6:00 p.m. Deceased-Shardaben had prepared 'khichadi' for supper. The respondent-original accused demanded Rs. 50/- from Sharadaben, but she had no money. She conveyed to her husband that she had no money and on hearing this, the respondent-original accused told her to bring money from her father, else, he would burn her. Therefore, she went in kitchen. She did not take utterance of the respondent seriously and thought that the respondent-original accused was venting bad temper. Her husband followed her in the kitchen and administered two to three slaps, and thereafter, from a tin which was lying nearby, poured kerosene over Shardaben and ignited her by matchstick. The clothes of Shardaben got flames and her body was also burnt. She started shouting for help, and on hearing this, respondent-original accused-her husband ran away from the house. Hearing shouts of Shardaben, Savitaben Ravajibhai Makwana and Budha Desai Makwana, who were residing near the house of the deceased came to rescue her and by putting quilt on the body of the deceased attempted to extinguish the fire. Sharadaben went in unconsciousness stage and regained consciousness at about 12.00 o' clock in the night. Her both hands, chest and throat including back side were burnt. Whole night she stayed at home, but her husband i.e. the respondent herein-original accused did not return. Through her brother-inlaw on the next day, she conveyed message to her parents at village Anklav. Her parents on receiving the message came to village Adas and Sharadaben informed them about the incident. Her parents took her to Vasad Police Station where she lodged her complaint at 10.45 a.m. on 27/02/1999. She was sent to Karamsad Medical College and Krishna Hospital at Karamsad, where she was examined by P.W. 5 Dr. Nayanjit Apurva Chaudhary where she gave history that her husband ignited her after pouring kerosene. According to Dr. Nayanjit, she had 27% burnt injuries. On 27/02/1999 in pursuance of Yadi by Vasad Police Station, Executive Magistrate-Indravadan Purshottambhai Trivedi recorded dying declaration of the deceased at about 12.30 noon. Before the Executive Magistrate, she stated that her husband demanded Rs. 50/- from her, and on refusal to give money, she was burnt by her husband. In police yadi which Executive Magistrate received, there was an endorsement of Doctor that the patient was conscious and was able to identify person and was in a position to recognize that where she was kept. During treatment, on 23/06/1999 Shardaben died and after due investigation, a charge-sheet for the offence under Section 498A and 302 of Indian Penal Code was filed in the Court of learned Judicial Magistrate First Class against the respondent-original accused. The case, in turn, came to be committed to the Court of Sessions at Nadiad. Vide Exh 3, on 17/07/2000, learned Additional Sessions Judge, camp at Anand, framed charges against the respondent-original accused for the offence punishable under Sections 498A and 302 of Indian Penal Code. Respondent-original accused pleaded not guilty and hence, prosecution examined as many as 10 witnesses and produced on record other documentary evidence. Complainant Gamalsinh, father of the deceased is examined at Exh. 7, but he has not supported the prosecution case. Executive Magistrate - Indravadan Purshottambhai Trivedi is examined at Exh. 9 and he stated that he recorded the dying declaration of deceased Shardaben which is produced at Exh. 11. He proved in his substantive evidence, dying declaration at Exh. 11. Dr. Subhashchandra Jethanand Ramani has been examined by the prosecution at Exh. 12, who performed post mortem of deceased and according to him, the cause of death was shock due to burns. Circle Inspector Ranjitsinh Punambhai Solanki who has been examined at Exh. 16 as PW-4, has produced map of scene of offence on record. PW-5 Exh 18 Dr. Nayanjit Apurva Chaudhary examined deceased Shardaben at Karamsad Hospital first in point of time and vide his substantive evidence at Exh. 18, he stated that deceased had given the history that her husband ignited her and 27% burns injuries were found on the body of the deceased. PW-7, Exh.20 Panch witness Udesinh Gambhirsinh Mahida has not supported the panchnama of scene of offence. Other panch witnesses Exh. 26 Vallabh Maganbhai Chavda and Exh. 28 Bhailal Khumansinh are examined to prove the panchanama Exh. 27 in respect of physical condition of deceased but none of them supported the prosecution case. PW-9 Pyarasha Fatesinh Bhalava is examined at Exh. 31 as a panch of inquest panchanama but he also has not supported the prosecution case. Lastly, PW-10 Investigating Officer, P.S.I. Kishorsinh B. Jadeja of Vasad Police Station has been examined by the prosecution at Exh. 33. In addition to this, prosecution also submitted documents on record like panchanama of scene of offence, complaint given by deceased, inquest panchanama, post mortem note, injury certificate of deceased and FSL report.

(3.) Ms. Moxa Thakkar, learned APP appearing on behalf of the State has vehemently submitted that the learned trial Court has materially erred in acquitting the respondent-original accused for the offences punishable under Section 302 and 498 A of the Indian Penal Code.