TEJUMAL DAYALDAS MULANI SINDHI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) INSTANT Appeal is preferred by the appellant under Section 374 of the Code of Criminal Procedure against the judgment and order rendered by Additional Sessions Judge, Court No. 16, Ahmedabad City, on 19th of January, 2006, in Sessions Case No. 144 of 2002 against his conviction and sentence. Including present appellant, in the said Sessions Case, in all there were three accused and accused Nos. 2 and 3 came to be acquitted by the Trial Court for all the charges levelled against them, while present appellant - accused No. 1 came to be convicted by the Trial Court for the offences punishable under Sections 304-B, 306 and 498-A of the Indian Penal Code. Appellant was sentenced to undergo rigorous imprisonment of 8 years for the offence proved against him under Section 304-B of the Indian Penal Code; rigorous imprisonment of five years and to pay fine of Rs. 5,000/-, in default to undergo simple imprisonment of one year for the offence proved against him under Section 306 of the Indian Penal Code and rigorous imprisonment of two years and to pay fine of Rs. 2,000, in default to undergo simple imprisonment of six months for the offence proved against him under Section 498-A of the Indian Penal Code. Though all the accused including the present appellant was charged for the offences punishable under Sections 3 and 7 of the Dowry Prohibition Act, but no separate sentence was awarded by the Trial Court to the appellant in this respect.

(2.) IT is the case of the prosecution that victim of the incident Shaluben had married to the present appellant in the year 1999. Other two accused, who are acquitted by the trial court, were elder brothers of the appellant. Shaluben was residing with her husband at Sardarnagar Block No. 268-A at Ahmedabad. On 3rd of August, 2000, according to the prosecution case, while she was preparing tea, caught fire and died on 4th of August, 2000 at Civil Hospital, Ahmedabad. Police had recorded Accidental Death, bearing No. 36 of 2000 and the matter was inquired into. On the day of the incident, appellant No. 1 informed Devandas Bachwani, father of the deceased that deceased had suffered some injuries in her leg. When Devandas Bachwani reached at the residence of the deceased, he found that, his other daughters and appellant No. 1 were taking the deceased to hospital in rickshaw and deceased was in very serious condition. His son was also with him. His daughter was not able to speak. He narrated the history before the Doctor that his daughter was fed up and, therefore, she had committed suicide. During treatment she died. He was not satisfied with the accidental death inquiry made by Police Sub-Inspector Dhanjibhai Bodad, who has been examined as PW-6. According to PW-6 Mr. Bodad, when he received information, he reached at Sardarnagar Police Station, and on inquiry, Shaluben stated that he was observing fast on account of religious vow and she was to keep herself awaken for the whole night. Since he was feeling sleepy, she went in kitchen, and on gas, prepared tea for herself and while she was wearing a gown, the same caught fire from the flames of the gas. Dhanjibhai Bodad called the Executive Magistrate for recording dying declaration. PW-2 Pathan Akbarkhan Hussainkhan, Executive Magistrate, recorded dying declaration of the deceased at 8. 35 hours on the morning of 3rd of August, 2000, wherein she stated that, while she was preparing tea and hot utensil was caught by her through one piece of cloth, that piece of cloth had caught fire, which she had thrown on floor, and from the said burning piece of cloth, her clothes caught fire. At that time, her husband appellant was watching TV in the other room. On hearing her shouts, husband ran towards her and tried to quench fire, in which he also got injuries on his hand. Thereafter, it appears that, Devandas Bachwani was not satisfied at all with the inquiry made by the police in accidental death and he pursued the matter vigorously with the State Government and it appears that he filed some proceeding before the High Court also. However, in pursuance of an application filed by the father of the deceased, it appears that, Sardarnagar Police Station, contacted the father of the deceased through second PSI, Bharatbhai Aayer, who recorded the complaint of Devandas Bachwani, which is placed on record at Exhibit-21. It has been clearly stated in Exhibit-21 that his deceased daughter was subjected to cruelty during her short marriage span by the appellant and he was instigated by other two accused. According to the further prosecution case, appellant was doing occupation of rickshaw driving and deceased was forced by the appellant to bring Rs. 50,000/- from her parents. Deceased had requested to provide that amount to her husband, but on account of poor financial condition of father of the deceased, the demand could not be met by him, and on account of that, deceased was subjected to cruelty, physical and mental as well. Deceased was complaining about the cruelty executed upon her to her parents and her sisters, but Devandas Bachwani, father of the deceased, tried to purse her to stay with appellant with the hope that by the time, everything might be peaceful and on this account while she was fed up, she committed suicide pouring kerosene and in Exhibit-21, father of the deceased Devandas Bachwani, expressed his suspicion about truthfulness of the inquiry done by the police in accidental death wherein alleged dying declaration and statement was recorded of the deceased. On 21st of November, 2000, complaint of the father of the deceased came to be recorded by Bharatbhai Aayer, PSI, Sardarnagar Police Station and he investigated the offence and ultimately filed charge sheet before Metropolitan Magistrate, Court No. 17, at Ahmedabad against in all three accused. The case was committed to the Court of Sessions and was numbered as Sessions Case No. 144 of 2002. Thereafter the said Sessions Case was made over to Additional Sessions Judge i. e. the Trial Court. Principal City Sessions Judge, Ahmedabad City, framed charges against the accused at Exhibit-2 on 8th of October, 2002, for the offences punishable under Section 498-A, 306 to read with Section 114 of the Indian Penal Code as well as under Sections 3 and 7 of the Dowry Prohibition Act. The charge was read over to the accused and they pleaded not guilty and, hence, accused were tried in the said Sessions Case.

(3.) TO prove its case, prosecution examined as many as 10 witnesses and produced on record voluminous documentary evidence. An important documentary evidence - Postmortem Note is placed at Exhibit-15; Dying Declaration recorded by Executive Magistrate on 3rd of August, 2003 of the deceased is placed at Exhibit - 17; Yadi to Executive Magistrate is placed at Exhibit - 18; Inquest Panchnama is placed at Exhibit-19; complaint filed by Devandas Bachwani, father of the deceased on 22 of November, 2000 is placed at Exhibit-21; panchnama of scene of offence is placed at Exhibit-23; complaint recorded of the deceased by Dhanjibhai Bodad, is placed at Exhibit-26, which is alleged to have been recorded on 3rd of August, 2000 in the early morning; at Exhibit-29 acknowledgment from Forensic Science Laboratory, Ahmedabad, and forwarding letter along with muddamal by the police to Forensic Science Laboratory is placed at Exhibit-30; application filed by Devandas Bachwani, father of the deceased, for transfer of said trial from the trial court is placed at Exhibit-35, wherein also he has reiterated that death of the daughter has not been properly inquired into accidental death inquiry and that he had filed Special Criminal Application before the High Court in this regard and government was also requested by his application dated 7th of September, 2000 to do the needful. Some of the papers of accidental death inquiry are also placed on record. Vide Exhibit- 47 report of an Officer of the Forensic Science Laboratory, who had visited the place of offence, is produced; case papers of the treatment given to the deceased is also produced at Exhibit-51 by PW-10 Dr. Yogesh Mahendra Yadav, who had first point in time treated the deceased.