STATE OF GUJARAT Vs. RAJESHBHAI R MISTRY

JUDGEMENT

(1.) The acquittal of the respondents recorded by the learned Additional Sessions Judge, Vadodara, in Sessions Case No. 54/91 vide judgment and order dated April 16, 1992, of the offences punishable under sections 498(A), 306 read with section 114 of the Indian Penal Code, is under challenge in present appeal which is filed by the State of Gujarat under section 378 of the Code of Criminal Procedure, 1973.

(2.) Deceased Jayshreeben was daughter of Mansukhlal Gordhandas, who was residing at Vrajlal Bhavsar ni Chawl, Gopalnagar, Amraiwadi, Ahmedabad. Mansukhlal is carpenter by profession. Deceased Jayshreeben was married to respondent no.1 in the year 1989. According to Mansukhlal, respondent no.1 was beating deceased Jayshreeben and her marital life was not happy. Once deceased Jayshreeben was beaten by respondent no.1 and, therefore, she had gone to the house of Nanalal, who is brother-in-law of Mansukhlal. According to Mansukhlal, Nanalal had persuaded Jayshreeben to return to her matrimonial house, but when Jayshreeben had gone to the house of respondent no.1, in presence of Nanalal, deceased Jayshree was beaten and was not permitted to enter the house by respondent no.1, as a result of which, Nanalal and his wife Vimalaben had brought Jayshreeben to Ahmedabad at the house of Mansukhlal. Thereafter Babulal who is residing at Bombay and who is brother-in-law of Mansukhlal had come and he had persuaded deceased Jayshreeben to return to her matrimonial home and accordingly, she was residing with the respondents. On 18/05/1989, deceased Jayshreeben poured kerosene over her body as well as her son aged about 8 to 9 months and set herself as well as her minor son ablaze. On receiving burn injuries, deceased started screaming and, therefore, one Vithaldas Dhulabhai Parmar, who is residing near the house of the respondents, came to her rescue and removed her to hospital in a rickshaw. Deceased Jayshree was admitted in emergency ward of S.S.C.Hospital, Vadodara at about 12.30 P.M. on May 18, 1989 and was treated by Dr. Meenaben Maheshkumar Parekh. The doctor found that deceased Jayshreeben had sustained 100% burn injuries. It is alleged that during treatment Jayshreeben made oral dying declaration before Dr. Meenaben stating that she had attempted to commit suicide because of cruelty meted out to her by her father-in-law. During the treatment, deceased Jayshreeben was referred to Burns Ward where she expired at about 1.20 P.M. The declaration made by deceased Jayshreeben to Dr. Meenaben was conveyed to Lakhabhai Vechatbhai, who was discharging duties as head constable at S.S.G. Hospital. Lakhabhai Vechatbhai noted down the information and informed the Officer incharge of Sayajiganj Police Station on phone about the incident. Mr. S.J.Atit, who was then discharging duties as Superintendent of Police, "D" Division,on receipt of information from Head Constable Lakhabhai directed P.S.I. Mr.Bhatiya of Sayajiganj Police Station to investigate the case and Entry No. 48/89 was made in the register maintained at the police station regarding accidental death of deceased Jayshreeben. Mr. Atit, who was S.P. " D" Division, Vadodara. went to S.S.G. Hospital and wrote a yadi to Executive Magistrate for holding inquest on the dead body. Accordingly, inquest panchnama was prepared in presence of panch witnesses. Thereafter panchnama of place of incident was prepared, where-from unposted postcard alleged to have been written by the deceased was recovered. The investigating officer recorded statements of witnesses who were found to be conversant with the facts of the case and the dead body was sent for postmortem examination which was carried out by Dr. Sutuppa Satyendra. The incriminating articles, which were seized during the course of investigation, including vicera of the deceased were sent to Forensic Science Laboratory for analysis. On receipt of necessary reports and at the conclusion of investigation, the respondents were chargesheeted for the offences punishable under sectins 498(A), 306 read with section 114 of the Indian Penal Code. The offence punishable under section 306 of I.P.C. is exclusively triable by the Court of Sessions and, therefore, the case was committed to Sessions Court, Vadodara for trial, where it was numbered as Sessions Case No. 54/91. The learned Additional Sessions Judge, Vadodara to whom the case was made over for trial, framed charge against the respondents at Exh.1 for the offences punishable under sections 498(A), 306 read with section 114 of I.P.C. The charge was read over and explained to the respondents, who pleaded not guilty to the same and claimed to be tried. Therefore, prosecution examined; (1) Dr. Sutuppa Satyendra, PW 1 Exh.8, (2) Dr. Meenaben Maheshbhai Parekh, PW 3, Exh.11, (3) Vithalbhai Dhulabhai Parmar, PW 3, Exh.15, (4) Shanabhai Mathurbhai Vasava, PW.4 Exh.19, (5) Mansukhlal Gordhandas PW.5, Exh.20, (6) Lakhabhai Vechatbhai, PW.6, Exh.21, and (7) Shivgiri Jagatgiri Atit, PW.7, Exh.28, to prove its case against the respondents. The prosecution also produced documentary evidence, such as, postmortem notes of deceased Jayshreeben at Exh.9, postmortem notes of deceased Gaurav Rajeshbhai Mistry at Exh.10, medical certificate of deceased Jayshreeben at Exh.12, medical certificate of Gaurav- son of deceased Jayshreeben at Exh.13, inquest report at Exh.16, panchnama of place of offence at Exh.17, entry made in vardhy book at Exh.23, complaint at Exh.26, postcard at Exh.30 etc., to bring home guilt to the respondents. After recording of evidence of prosecution witnesses was over, the learned Judge questioned the respondents generally on the case and recorded their statement under section 313 of the Code of Criminal Procedure, 1973. In their further statements, the respondents denied the case of prosecution. The respondent no.1 in his further statement mentioned that deceased Jayshreeben after delivery of Gaurav was ailing and suffering from epilepsy, as a result of which, she had once thrown her son Gaurav on ground and was also throwing household utensils. The respondent no.1 stated before Court that as the deceased was suffering from epilepsy, she might have committed suicide. He produced medical bills and prescription to indicate that the deceased was ailing since long and was being treated for her ailment. No evidence in defence was led by any of the respondents.

(3.) On appreciation of evidence led by the prosecution, the learned Judge held that as per medical papers at 12.30 P.M. the deceased was not in a position to speak and, therefore, it was not possible for the deceased to make any declaration before anyone, as a result of which, so-called dying declaration was not believable. The learned Judge deduced that no satisfactory evidence was led by the prosecution to establish that the respondents were guilty of any willful conduct which was of such a nature as was likely to drive the deceased with her son of tender age to commit suicide nor was there any evidence to establish that the respondents had abetted commission of suicide by deceased Jayshreeben and, therefore, offences punishable under sections 498-A and 306 I.P.C. were not made out against the respondents. In ultimate decision, learned Judge acquitted the respondents by the impugned judgment dated 16/04/1992, giving rise to present appeal.