SITABEN LALAJI NANABHAI THAKOR Vs. STATE OF GUJARAT

JUDGEMENT

(1.) Heard Shri N.R.Kodekar, learned advocate for the applicant, who upon request of this Court appeared in this application for suspension of sentence and regular bail under Section 389 of the Code of Criminal Procedure since he already appears in Criminal Appeal admitted by this Court against conviction and sentence recorded by the trial Court.

(2.) In the backdrop of case of the prosecution about victim was set ablaze by his wife during late night hours by throwing chilly powder in his eyes and then pouring petrol and lighting matchstick, witnesses, who noticed the victim with burn injuries by and large turned hostile and Executive Magistrate, recorded the dying declaration in which the victim has stated about the role of the present convict, wife of the deceased, about throwing chilly powder and pouring petrol. Initial treatment given by Dr.Divyesh Velani, PW-2, before whom the injured was taken noticed 60 to 65% superficial burn injuries and later on Dr.Manish Gelani, PW-1, who carried out postmortem stated that the reason for death is septicemia due to burn injuries. According to Shri Kodekar, conviction secured based on dying declaration is doubtful and motive for crime is not established. No one including the doctor, who had provided primary treatment, PW-2, inquest panchnama and postmortem report notice about remnants of chilly powder. Other evidence can be considered at the time of final hearing since appeal is not likely to be heard in the near future, she is in jail since 3 1/2 years and, accordingly, prayer be granted.

(3.) Learned APP, however, would oppose the prayer of the conviction on the ground that consistently the applicant herein was implicated by the deceased firstly before PW-2 and also before relatives and brother of the deceased staying in the neighborhood viz. PW-4 and complainant has supported the case of prosecution. Likewise, Executive Magistrate deposed to in which the deceased narrated the version of crime where during night hours his wife had thrown chilly powder in his eyes and set him ablaze by pouring petrol. That mental fitness of the declarant is duly verified and finally investigating officer, PW-14 followed the procedure including that of recording of statements of relatives before whom the deceased had declared that he was burn by his wife. Therefore, the application and prayer both deserve to be rejected at this stage.