IBRAHIMBHAI @ GAGUBHA MANSING RAJ Vs. STATE OF GUJARAT

JUDGEMENT

(1.) This appeal under Section 374 (2) of the Code of Criminal Procedure, 1973 arises out of conviction of the appellants recorded under Section 302 and Section 114 of the Indian Penal Code (for short, "IPC") sentencing them for simple life imprisonment and imposing fine of Rs.5,000/- and, in default thereof to undergo simple imprisonment for three months vide judgment and order of conviction dated 5.11.2014 in the Sessions Case No.26 of 2013 passed by learned Second Additional Sessions Judge, Anand.

(2.) Learned advocate appearing for the appellants has taken us to brief facts about the case of the prosecution which has genesis in the incidence dated 3.10.2012, which took place around 9 a.m. when wife of the complainant, the complainant and their son had gone to their agricultural field where their old house was situated, the accused were present, who had sold trees for which share was demanded by the complainant and his wife upon which quarrel had taken place between the appellants, the complainant and his wife. Meanwhile, all appellants uttered that wife of the complainant is to be done away with. She was afraid and immediately ran towards her house and followed by all accused and even the complainant and his son Sabbir went after them and the accused have entered inside the house where wife of the complainant had taken shelter and a tin full of kerosene lying in the house was poured over wife of the complainant and accused no.2 lighted the matchstick, threw over her and set the wife of the complainant ablaze. That wife of the complainant raised alarm and started shouting and the fire was doused by the complainant and his son and in the process the complainant also received some injuries on right hand and left leg. Initially, victim was taken in ambulance to local Government Hospital at Anklav and was advised to take her to SSG Hospital, Vadodara, for better treatment. There she succumbed to injuries and offences were registered. Upon investigation and filing of charge sheet and committal, case was tried by concerned Sessions Court at Anand.

(3.) Mr.V.B.Malek, learned advocate for the appellants would contend that case of the prosecution is based on dying declaration of the victim, Exh.25, dated 3.10.2012 recorded by Executive Magistrate, PW-1, Rajubhai Parmar, PW-7, Dr.Girishkumar Thakkar of Government Hospital at Anklav, PW- 9, Dr.Pankaj Barai, who carried out postmortem report, Exh.66 and of course, complaint, Exh.69 and the deposition of PW-12, investigating officer vide Exh.74 and other medical papers. It is submitted that the testimonies of above prosecution witnesses and the documentary evidence to which reference is made herein above and other documents forming part of the evidence altogether reveal involvement of four accused in commission of crime without attributing any specific role by the accused concerned. Further the manner in which crime is committed viz. setting wife of the complainant ablaze was preceded by the quarrel between the accused, the complainant, his wife - now deceased, and Sabbir, who also died during the pendency of trial natural death and was not examined, and the accused about trees which were cut and sold for which demand was made by the complainant and his wife for their share in the trees. Thus, version of the complainant in the complaint, if carefully perused, presence of the complainant and his son inside the house is also established and no mention about individual role of the accused for pouring kerosene out of a tin of one liter, if examined in the context of testimonies of complainant himself, it is categorically denied by him that he had not seen anyone pouring kerosene over the body of his wife. That testimonies of PW-7, Doctor at Community Health Center at Aanklav, no doubt record physical condition and consciousness of the burn victim and statement that upon a quarrel with elder brother-inlaw and sister-in-law kerosene was poured over her body and the incident had taken place around 9.30 in the field. Based on the above, it is submitted that it is not clear whether the incidence in question had taken place inside the house or in the field. It is also contended that over implication, if not false, of all the accused in the backdrop of testimonies of complainant about short temperament of his wife and quarrel taking place so often with him, the extreme step taken of pouring over kerosene by herself is not ruled out. However, at this stage, in totality of circumstances and the evidence that is emerging, learned counsel for the appellant would contend that the manner in which dying declaration is recorded and clear endorsement of the concerned doctor about mental fitness of the declarant is also lacking and accordingly conviction rests solely on such dying declaration of the victim involving all the accused in the crime, deserve to be quashed and set aside by allowing the appeal.