STATE OF GUJARAT Vs. ASHOKBHAI KUBERBHAI SOLANKI

JUDGEMENT

(1.) THIS appeal under section 378 (1) (3) of the Code of Criminal Procedure, 1973 has been filed by the State of Gujarat challenging the legality and validity of the judgment and order delivered by the learned Additional Sessions Judge, Fast Track Court No. 2, Vadodara [for short 'ld. Judge'] on 30/6/2005 in Sessions Case No. 3 of 2000. The Ld. Judge , by virtue of the impugned judgment, acquitted both the respondents herein, who were original accused for the offences punishable under sections 307, 498-A read with section 114 of the Indian Penal Code [for short 'ipc'] as well as punishable under sections 3 and 7 of the Prevention of Dowry Act.

(2.) THE prosecution case, in nut shell, is as under :-

(3.) ON behalf of the appellant State, learned A. P. P. Mr. Desai submitted that the impugned judgment delivered by the Ld. Judge is contrary to law and evidence on record. It is submitted that the Ld. Judge erred in not properly appreciating the evidence of victim Anjuben, which is supported by the deposition of her father complainant Maganbhai in connection with the offence of attempt of murder, punishable u/s. 307 of IPC. That even the testimony of victim Anjuben in connection with the cruelty and ill-treatment caused to her by both the accused gets support not only by the testimonies of complainant Maganbhai, but testimonies of her mother, brother and uncles. That the untoward incident occurred just within a short span of marriage life of Anjuben. That the root cause of the ill-treatment, as per the prosecution case was that husband of Anjuben named Ashwinbhai was jobless, and therefore the accused caused mental torture to Anjuben stating that because of her, Ashwinbhai was not inclined to do any job. That therefore, even financial demands were also made to Anjuben. That Anjuben used to get financial help from her parents. That because of such continuous torture by both the accused, both the spouses Anjuben and Ashwinbhai decided to reside separately from the accused. That therefore, on 25/11/1997, the day on which the incidence occurred, right from the morning, both the accused started causing mental torture to Anjuben. That the torturing continued practically for the whole day and Anjuben's father complainant Maganbhai received information about the mental torture to his daughter from none other than Navnitbhai, who is son of the accused and younger brother of Anjuben's husband Ashwinbhai. That thereupon Maganbhai immediately rushed to the house of the accused. However, he remained outside the house, and Anjuben came out of her house and informed her father about the torturing and ill-treatment caused to her by the accused. That thereupon, her father - Maganbhai decided that Anjuben should come to his house, and for that purpose told Anjuben to carry her belongings. Anjuben went inside the house to carry her belongings, and her father Maganbhai stayed outside the house. That it has come in evidence of the victim - Anjuben herself that as soon as she went inside the house to collect her belongings, at that time, both the accused poured kerosene on her and set her on fire. Listening the noise of quarrel coming from the house, her father Maganbhai who was outside the house immediately came inside the house and saw her daughter sustaining burn injuries, on account of fire. That the Ld. Judge failed to appreciate the deposition of Anjuben in true perspective and erred in coming to the conclusion that what the victim Anjuben narrated before the Court was an afterthought. It is submitted that when Anjuben was under treatment in hospital, Executive Magistrate recorded her dying-declaration. Of course, fortunately Anjuben survived, and therefore, the true value of her dying declaration would be only her previous statement, as contemplated u/s. 157 of the Evidence Act. However, the Ld. Judge committed serious error in not properly reproducing in his judgment, the relevant part of said dying declaration. That even Anjuben in her proposed dying declaration clearly stated that her mother-in-law, accused No. 2 set her on fire. Despite this, Ld. Judge in paragraph 15 of the impugned judgment twisted the content of the proposed dying declaration, in the manner as if Anjuben accidentally caught fire. That the Ld. Judge unnecessareely placed reliance upon history of injury given by Anjuben to Medical Officer Dr. Sherbanu Pathan. It is true that as per the testimony of Dr. Sherbhanu Pathan, Anjuben stated that she herself poured kerosene on her body and got herself ablazed. Therefore, Ld. Judge, erroneously observed that Anjuben attempted to commit suicide. However, it is not even the defence of the accused that Anjuben attempted to commit suicide. That in the cross-examination in the deposition of Anjuben on behalf of the accused, not a single question, much less a suggestion was placed on behalf of the accused that she attempted to commit suicide. That the only defence of the accused is that Anjuben accidentally caught fire and was not ablazed by the accused. There is nothing on record that Anjuben sustained burn injuries due to accident. And even during the course of investigation, no material was collected, which may lead the Court to raise such presumption. That the Ld. Judge should have considered one important aspect of the matter that if at all the father of the victim Anjuben namely Maganbhai wanted to file false complaint and wanted to involve falsely the family of the accused, then, he would have stated that even husband of victim Anjuben namely Ashwinbhai as well as her brother-in-law were also torturing and causing cruelty to Anjuben. On the contrary, right from the beginning, it is the prosecution case that only both the accused, who are father-in-law and mother-in-law of Anjuben, caused cruelty to Anjuben and ultimately they set her on fire. Thus, in short, it is the argument of Ld. A. P. P. Mr. Desai for the appellant State that considering the deposition of victim Anjuben herself, which is supported by other evidence, the prosecution has successfully proved its case against both the accused. That even considering the panchnama of scene of occurrence, it becomes clear that tin, which is used for storing kerosene (Khadiyo), a stove and a suitcase were found lying near the place of the offence. That there was patch of dried kerosene on the floor of the kitchen. That even burnt pieces of saree, worn by Anjuben at the time of incident were analyzed by FSL and marks of kerosene were detected. That therefore, even by circumstantial evidence, it cannot be said that Anjuben accidentally caught fire. On the contrary, prosecution, beyond any reasonable doubt, established its case that both the accused poured kerosene on the body of Anjuben and set her on fire. Therefore, it is submitted that the appeal be allowed and the impugned judgment delivered by the Ld. Judge be set-aside, and both the accused be appropriately convicted and sentenced for the offences charged against them in accordance with law.