STATE OF GUJARAT Vs. MEMAN JAVED KARIM

JUDGEMENT

(1.) In this appeal, which is filed under section 378 of the Code of Criminal Procedure, 1973, the State of Gujarat has questioned acquittal of the respondents recorded by the learned Additional Sessions Judge, Junagadh, in Sessions Case No. 152/91 vide judgment and order dated 30/10/1991 for the offences punishable under sections 498-A and 306 of the Indian Penal Code.

(2.) As per the prosecution case, marriage of respondent no.1 with deceased Samimben had taken place 13 months prior to the date of the incident, which is 27/09/1991. After the marriage, respondent no.1 and the deceased were residing in joint family consisting of mother of respondent no.1 and four sisters, but as quarrels were taking place, respondent no.1 and Samimben had separated from joint family and were residing separately at another place. It is the case of the prosecution that though respondent no.1 and deceased Samimben were residing separate, mother-in-law and sisters-in-law of deceased Samimben were instigating respondent no.1, as a result of which respondent no.1 was beating Samimben and was meting out cruelty to her. On 8/07/1991, deceased and respondent no.1 had gone to attend marriage of one Gafurbhai, who was close relative of both of them, but a quarrel had taken place between respondent no.1 and the deceased over fondling of their son Hasan by sister of tender age of respondent no.1 and both had returned home at about 11.00 P.M. On July 9, 1991 at about 12.45 A.M. deceased Samimben doused her body in kerosene and set herself on fire. The respondent no.1 was awaken because of the shouts of deceased Samimben and he removed deceased Samimben to Burns Department of Junagadh Hospital. At the hospital, her dying declaration was recorded by Executive Magistrate Mr. K.L. Sangani. The complaint lodged by deceased was also recorded by Head Constable Mohamad Salambhai at about 3.15 A.M. The First Information Report was sent to Junagadh City Police Station for the purpose of registration where the complaint was registered as C.R. II. No.308/91. Samimben, who had sustained extensive burn injuries, expired at about 6.00 A.M. on July 9, 1991 during the course of treatment. The dead body was sent for autopsy and autopsy was performed by Dr. R.M.Joshipura as well as by Dr. M.R.Mehta. The investigating officer recorded statements of witnesses who were found conversant with the case and ultimately at the conclusion of investigation, chargesheet was submitted against the respondents in the Court of learned Chief Judicial Magistrate, Junagadh. The offence punishable under section 306 I.P.C. is exclusively triable by a Court of Sessions and, therefore, the case was committed to Sessions Court, where it was numbered as Sessions Case No. 152/91. The learned Judge framed charge against the respondents at Exh.1 for the offences punishable under sections 498-A and 306 of the Indian Penal Code. 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) Kirit Laxmidas Sangani, PW 1, Exh.11, (2) Dr. Mukesh Revashanker Mehta, PW 2, Exh.14, (3) Nurbai Mubarak, PW 3, Exh.16, (4) Nashimaben Harunbhai, PW 4, Exh.17, (5) Mohmad Shalambhai, PW 5, Exh.22, (6) Keshavbhai Haribhai Gurav, PW 6, Exh.25, and (7) Dasharathsinh Sabhuji Vaghela, PW 7, Exh.27, to prove the case against the respondents. The prosecution also produced documentary evidence, such as, dying declaration recorded by Executive Magistrate Mr. Sangani at Exh.13, postmortem notes prepared by Dr. Mehta at Exh.15, inquest report at Exh.18, panchnama of place of occurrence at Exh.19, F.I.R. lodged by the deceased at Exh.23 etc. to prove its case against the respondents. After the witnesses for prosecution had been examined, learned Judge questioned the respondents generally on the case and recorded their statements under section 313 of the Code of Criminal Procedure, 1973. In their statements, the respondents stated that the case of prosecution against them was false. The respondent no.1 specifically stated that dying declaration recorded by Executive Magistrate Mr. Sangani wad tutored one and was dictated at the instance of Faridaben Aminbhai as well as other relatives. The respondents did not lead any evidence in their defence.

(3.) After taking into consideration the evidence led by the prosecution and hearing the learned Counsel for the parties, learned Additional Sessions Judge held that the evidence of witness Nasimaben Harunbhai and Nurbaiben was not relevant for the purpose of bringing home guilt to the respondents, as they had not supported the prosecution case. The learned Judge deduced that the deceased had sustained severe burn injuries and was, therefore, not in a position to make any statement at all, as a result of which, dying declarations recorded by Executive Magistrate Mr. Sangani and the complaint recorded by police head constable Mr.Mohmad Salambhai were not reliable. In ultimate decision, the learned Judge acquitted the respondents vide judgment and order dated 30/10/1991, giving rise to present appeal.