KIRPALSINH DILIPSINH PARMAR Vs. STATE OF GUJARAT

JUDGEMENT

(1.) The present Appeal under section 374 of the Code of Criminal Procedure, 1973, is directed against the by the appellant - original accused against the impugned judgement and order of conviction and sentence passed by the Additional Sessions Judge, Bhavnagar, in the Sessions Case No.26 of 2013 dated 19/12/2013 by which the Trial Judge convicted the appellant accused for the offence punishable under section 302 of Indian Penal Code for causing the murder of his wife Kajalben and imposed rigorous imprisonment of life imprisonment.

(2.) An FIR was lodged by the complainant Kajalben, now deceased, against the appellant accused alleging that deceased Kajalben and the appellant accused were husband and wife. They were residing together and on 6/11/2012 at about 21.00 hours, the accused and his mother Shantuben were quarreling. At that time, the deceased Kajalben intervened and asked her husband not to quarrel. Therefore, the accused got provoked and angry with Kajalben and assaulted on the Kajalben. Thereafter picked up the kerosene Can and poured kerosene on the Kajalben and lit the matchstick and set her ablaze. Due to which she sustained 95% to 100% burns. She was taken to the hospital by her brother-in-law at Sir T. Hospital, Bhavnagar and she was admitted in the hospital, however, during the treatment she died on 7/11/2012. Therefore, FIR being CR No.I-154 of 2012 came to be registered with D-division Police Station, Bhavnagar, initially for the offence punishable under section 307 read with section 498-A of IPC. Thereafter, on death of the deceased, offence under section 302 of IPC came to be added.

(3.) Mr.Mrudul Barot, learned counsel, who has been appointed by the Gujarat High Court Legal Service Committee for the appellant accused has submitted that in fact the deceased had committed suicide by pouring kerosene on her body and setting her ablaze and, as such, the appellant tried to extinguish the fire and save the deceased and in that process, he had sustained burn injuries to the extent of 40% to 50%. It is submitted that even the deceased has given history before the Doctor that she committed suicide. It is submitted that even the injury sustained by the appellant accused is also not explained by the prosecution. It is submitted that it is the case on behalf of the appellant accused that the deceased has committed suicide and the appellant tried to extinguish the fire and while doing so, he sustained burn injuries and these facts have also come on record and proved from the evidence on record and proved by independent evidence. It is submitted that there is no independent witness and nobody has seen the incident pouring kerosene on the deceased and setting the deceased ablaze. It is submitted that even there was no motive to kill his wife and the motive is also not proved. It is submitted that even there was no evidence for the offence punishable under section 302 of IPC and even the ingredients of the offence under section 302 are not made out and/or established. It is submitted that the Trial Judge has failed to consider the contradictions in the dying declaration. It is submitted that even the panchas of discovery panchnama have not supported the panchnama and the discovery panchnama is not proved. It is submitted that most of the prosecution witnesses are turned hostile. It is submitted that the Trial Judge failed to consider the fact that the deceased herself has given history before the doctor that she has committed suicide and even neighbour, PW No.7 Babyben wife of Laljibhai Chudasama, who is examined at Ex.23, who is an eye witness, has also deposed that the appellant was trying to save the deceased and in that process, he had sustained injuries and the deceased had committed suicide, and therefore, the dying declaration of the deceased recorded by the Executive Magistrate is doubtful. It is submitted that solely on the basis of dying declaration, appellant cannot be convicted for the offence under section 302 of IPC. It is submitted that as such, the case against the appellant accused is not proved beyond reasonable doubt. However, the Trial Judge erred in convicting the appellant for the offence punishable under section 302 of IPC. It is submitted that the judgement and order of conviction is miscarriage of justice and the appellant is entitled to benefits of doubt and acquittal.