RAHEMATIBANU NAZIRMOHAMMAD QURESHI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) THE present Appeal is directed against the judgment and order dated 27.10.2005 in Sessions Case No. 226. of 1994 passed by the learned Additional Sessions Judge, Fast Track Court No. 2, Ahmedabad City, recording the conviction of Accused No. 1 for the offence under S.302, S.452, S.323 of Indian Penal Code, imposing sentence of life imprisonment for offence under S.302 IPC. Further, also recording the acquittal of Accused No. 2 for the alleged offence under S.302, S.452, S.323 read with S.34 of IPC. The Accused No. 3 had been absconding, and therefore, the trial had proceeded qua Accused Nos. 1 and 2 only and the conviction has been recorded for Accused No. 1 and acquittal has been recorded for Accused No. 2.

(2.) THE facts of the case briefly summarized are as follows :

(3.) LEARNED Senior Counsel Mr. Shethna also referred to the deposition of the prosecution witnesses, who are relatives, like mother, father, brother and sister, and submitted that all of them have not supported the prosecution case at all. On the contrary, they have stated about the cordial relations. Therefore, learned Senior Counsel Mr. Shethna referred to the evidence of prosecution witnesses in detail, particularly the deposition of PW 1 Ahematibanu Mohammadshafi, who is the mother of deceased Sahnazbanu. It was submitted that she has specifically stated that deceased Sahnazbanu was unconscious. She has also stated that she had gone for buying vegetables when deceased Sahnazbanu was in the house and thereafter, when she returned home, she saw, deceased Sahnazbanu in burnt condition in the veranda of the house. Thereupon, Kabirbhai, a friend of her husband had taken deceased Sahnazbanu to the hospital. Kabirbhai is said to have informed the husband by telephone. Learned Senior Counsel Mr. Shethna also submitted that she has been declared as a hostile witness and, in the cross - examination by the Public Prosecutor, she has denied that any such statement about the version recorded in the statement before the Police was given by her. She has also stated that because of extensive burn injuries, deceased Sahnazbanu was unconscious and she had not regained the consciousness. Learned Senior Counsel Mr. Shethna also emphasized and submitted that she has specifically stated that, from the time, when deceased Sahnazbanu was taken to the hospital and died in the hospital, the witness was there with deceased Sahnazbanu and she had never regained consciousness. Similarly, learned Senior Counsel Mr. Shethna referred to deposition of PW 2 Mohammad - shafi Fazalkhan at Ext. 9 and submitted that he has also corroborated the deposition of PW 1 - mother of deceased Sahnazbanu. He is father of deceased Sahnazbanu and has also stated in his testimony that deceased Sahnazbanu was not able to say anything as to how she got burnt. Therefore, he has also been declared hostile. He has also, in his testimony, stated that deceased Sahnazbanu was like a daughter to the neighbours and there was no quarrel. Learned Senior Counsel Mr. Shethna also referred to the deposition of PW 3 Kalimbhai Habibbhai at Ext. 10 and submitted that he is the person, who was the first and who carried deceased Sahnazbanu to the hospital. He has also, in his deposition stated that one boy had come to call him and when he reached there, he found deceased Sahnazbanu in burnt condition, and therefore, removed her in rickshaw and deceased Sahnazbanu was urging for water. He has also stated that deceased Sahnazbanu has not stated anything in presence of her father as to what had transpired. Similarly, learned Senior Counsel Mr. Shethna referred to the deposition of PW 4 Irfan Mohammad - shafi at Ext. 11 and submitted that he has also corroborated the evidence of the aforesaid witness. He is the brother of deceased Sahnazbanu and he has also stated that when he came to know that deceased Sahnazbanu is removed to hospital, he had gone to the hospital and he could not talk, as deceased Sahnazbanu was unconscious. He had also stated that deceased Sahnazbanu had died of burn injuries, but how deceased Sahnazbanu has been burnt, he cannot say. Learned Senior Counsel Mr. Shethna also referred to the deposition of PW 5 Mumtazbanu Mohammadshafi at Ext. 12, who is the sister of deceased Sahnazbanu, and submitted that she is said to have been present in the house at the time of incident. However, in her deposition, she has stated that she was not in the house and she does not know as to what has transpired and therefore, she has been declared hostile.