SHARMILABEN Vs. STATE OF GUJARAT

JUDGEMENT

(1.) Both these appeals are filed against the impugned judgment and order dated 28.11.2008 passed by learned Additional Sessions Judge, Ahmedabad City, in Sessions Case No. 268 of 2008. By the said judgment, accused No. 1 was held guilty for offence punishable under Sec. 302 of the Indian Penal Code (for short, "IPC") and ordered to undergo rigorous imprisonment for life with fine of Rs. 1,000/ - and, in default of payment of fine, further simple imprisonment of three months was imposed. Accused Nos. 2 and 3 were exonerated from the charges levelled against them. Being aggrieved by the impugned judgment, Criminal Appeal No. 3126 of 2008 is preferred by the accused against her conviction, while Criminal Appeal No. 327 of 2009 is preferred by the State against acquittal of accused Nos. 2 and 3.

(2.) The case of the prosecution is that the accused took up a quarrel with the complainant with regard to transaction of money. It is the case of the prosecution that on 21.6.2008, the accused ensued the quarrel and accused Nos. 2 and 3 had beaten the complainant and accused Nos. 1 and 3 poured kerosene on her and set her ablaze. It is alleged that by doing this, they have killed the victim. With these allegation, a case was registered against the accused persons.

(3.) Mr. N.R. Kodekar, learned advocate appearing for the appellant of Criminal Appeal No. 3126 of 2008 -original accused No. 1 has taken us through the evidence and submitted that the impugned judgment and order is against the evidence on record. He submitted that the prosecution has failed to prove its case against accused No. 1. He also submitted that a false case is filed against her. He submitted that Dr. Manish Ghelani, PW -3, Exh. 14, has recorded first dying declaration of the deceased after an hour of the incident, however, because of extensive burns it was not possible to record her dying declaration, therefore, it cannot be relied. He further submitted PW -2, Siddharth Jaswantbhai Rathod, who happens to be the brother of the deceased has also not supported the case of the prosecution and stated that the deceased fell on the burning stove and received the injuries. PW -4, Lavliben Mohanbhai Batunge, Exh. 16 has also deposed in the same way and stated that this is an accidental death. He also submitted that there are serious discrepancies as far as recording of dying declaration is concerned, therefore, it could not have been relied to convict the appellant herein. He further submitted that the trial Court has committed an error in relying upon the evidence of the witnesses, though there are many contradictions and omission in their evidence. It is also submitted that there was no intention or motive on the part of the accused to commit the offence. In view of these, he submitted that benefit of doubt is required to be granted in favour of the accused and this appeal may be allowed by setting aside the conviction recorded against the accused by the impugned judgment.