NASIRBHAI @ DILU ABDULBHAI @ ... Vs. STATE OF GUJARAT

JUDGEMENT

(1.) In this application filed under Section 389 of the Code of Criminal Procedure, 1973, prayer is to suspend sentence and grant bail pending the above criminal appeal filed against the judgment and order dated 31.12.2016 passed by the learned 3rd Additional District Judge, Ahmedabad [Rural] in Sessions Case No.70 of 2014 convicting the applicants-original accused nos.2 and 3 under Section 302 and 498A of the IPC and sentencing them to undergo rigorous life imprisonment and to pay fine of Rs.2,000/- in default to further undergo imprisonment for 2 years and one year RI and to pay fine of Rs.500/- or in default to undergo 15 days imprisonment respectively and the sentences were ordered to run concurrently.

(2.) So far as co-convict and original accused no.4 is concerned, same prayer for suspension of sentence and grant of bail in Criminal Misc. Application (for suspension of sentence) No.27724 of 2017 in the present appeal was preferred in which case of the prosecution in the backdrop of arguments canvassed by learned counsel appearing for the applicant and learned APP was recorded and submissions made therein, which reads as under:-

(3.) At this stage of suspension of sentence and grant of bail, our attention is drawn by learned counsel for the applicant to relevant evidence containing the paper book and dying declaration recorded by the Executive Magistrate Exh.40 and it is submitted that the declarant referred to the discussion with her husband, mother-in-law, father-in-law, elder sister-in-law / Rubina / applicant herein and alleged that they remained mute spectators at the time of pouring kerosene and igniting the match stick by the accused No.1. Further, She stated that all the accused persons caused mental as well as physical cruelty to her, but at the same time, she stated that her mother-ion- law had defended her. While recording the above statement, her mental fitness, including the capability to make or declare statement was certified by the concerned Executive Magistrate and in the complaint filed, the aspect of instigation by the accused persons other than husband does not appear on record and the declaration of victim before the medical officer at the hospital where she was taken for treatment, her version was of receiving burn injuries by her husband only. It is further submitted that though grounds are mentioned in memo of appeal filed while challenging the conviction so recorded, at this stage, this court may consider the dying declaration recorded by the Executive Magistrate in juxtaposition to oral declaration of the victim while she was alive, the complaint and also declarations made before her relatives.