BHARATBHAI NAGBHAI KOTHI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) THE challenge in this appeal is to the judgment and order rendered by the Addl. Sessions Judge, FTC No. 3, Surendranagar, vide judgment and order dated 15/3/2004 rendered in Sessions Case No. 82 of 2000, whereby the appellant, who was original accused in the said case, came to be convicted for the offence of murder of his elder brother's wife Hansaben, punishable under Section 302 of the Indian Penal Code [for short 'IPC'] and was sentenced to undergo rigorous imprisonment for life and fine of Rs. 1,000/ -, in default of payment of fine, simple imprisonment for six months. He has challenged the legality and validity of his conviction by preferring this appeal.

(2.) THE prosecution case, in nutshell, is that the appellant is deceased Hansaben's husband's elder brother and deceased Hansaben along with his husband Vanrajbhai and the appellant were residing in a house, which was situated near DNT High School in Joravarnagar, District Surendranagar. The appellant was not doing any work and was not earning anything and, therefore, deceased Hansaben used to tell the appellant to do some job. On 17/3/2000 at about 5.00 p.m., when the deceased told the appellant to do some job, the appellant felt insulted and poured kerosene on Hansaben and she was set to fire by match stick. Hansaben was immediately shifted to civil hospital and there her FIR came to be recorded. Initially the FIR came to be registered for the offence punishable under Section 307 of the IPC and investigation was commenced. During the course of investigation, Executive Magistrate recorded the dying declaration of Hansaben. However, during the treatment she succumbed to the burn injuries and therefore, the offence of murder punishable under Section 302 of the IPC came to be investigated. Statements of material witnesses were recorded and necessary panchnamas were drawn in presence of panchas. After collecting required material for the purpose of lodgement of charge -sheet, charge -sheet came to be filed in the Court of Ld. Chief Judicial Magistrate, Surendranagar. Since the offence was exclusively triable by the Court of Sessions, the Ld. Magistrate committed the case to the Court of Sessions, Surendranagar, which came to be registered as Sessions Case No. 82/2000.

(3.) THE Ld. Trial Judge framed charge against the appellant at exh. 5, to which he did not plead guilty and claimed to be tried. Thereupon, the prosecution adduced its oral and documentary evidence. The prosecution examined 8 witnesses and one witness, namely Dr. Mansukhbhai Dhanjibhai Patni was examined by the trial Court as Court witness. The prosecution produced necessary documentary evidence. After the conclusion of the oral evidence adduced by the prosecution, the Ld. Trial Judge recorded further statement of the accused under Section 313 of the Criminal Procedure Code [for short 'Cr. P.C'] and the accused denied, generally all the allegations levelled against him by the prosecution and submitted that at the time of the incident, he was not in the house, but he had gone to one mosque at Gariyadhar and he was wrongly implicated in this case. After considering the evidence on record and the submissions made on behalf of both the sides, the Ld. Trial Judge relied upon the FIR of the deceased herself, which according to the trial Court, after her death, is her dying declaration before the police and the dying declaration recorded by the Executive Magistrate, came to the conclusion that the prosecution successfully proved its case beyond any reasonable doubt regarding the offence of murder having been committed by the accused punishable under Sections 302 of the IPC and awarded the sentence as hereinbefore referred to in this judgment.