STATE OF GUJARAT Vs. HAMID HAJI KER

JUDGEMENT

(1.) The acquittal of the respondent recorded by the learned Additional Sessions Judge, Jamnagar, in Sessions Case No. 9 of 1988 vide judgment and order dated 13/09/1991 of the offences punishable under sections 452 & 302 of the Indian Penal Code is challenged by the State Government in the present appeal, which is filed under section 378 of the Code of Criminal Procedure, 1973.

(2.) The prosecution case is that deceased Kulsumben, daughter of Harun Ibrahim, aged about 20 years was residing with her grand mother at village Salaya, Taluka : Khambhaliya, District : Jamnagar. The respondent at the relevant time was residing in the adjoining house. According to the prosecution, the respondent was quarrelling with the deceased, as the respondent had suspicion that the deceased was passing on chits containing messages from other persons to his wife and his wife would become of immoral character. According to the prosecution, because of entertainment of such suspicion, respondent on 22/09/1987 at about 2.00 P.M. in the noon sprinkled kerosene on the deceased who was sleeping and set her on fire. One Gulshan Jusab residing nearby, noticed smoke emanating from the house where the deceased was residing and, therefore, he tried to open the door on the ground floor. However, door on the ground floor was found locked from inside and, therefore, Gulshan climbed roof of the house of the deceased and tried to enter the house from the door on the first floor which was also found closed, as a result he broke open the door by giving kicks and found that the deceased was aflame. He, therefore, came down on the ground floor, opened the door and went to the place where Jinnatbai Harunbhai - mother of the deceased was residing. He informed the mother of the deceased that deceased had received burn injuries, as a result of which witness Jinnatbai and others went to the place where the incident had taken place. Witness Jinnatbai found the deceased in a pitiable condition and with the help of others, removed her to Khambhaliya Referal Hospital. It is the case of the prosecution that head constable Ramdas Jerambhai Sudane, who was P.S.O. of Khambhaliya Police Station, recorded complaint of Kulsumben as narrated by her wherein according to the head constable the deceased stated that she was set ablaze by the respondent, as the respondent had suspicion that she was giving chits written by other persons to his wife. The complaint recorded was forwarded to Khambhaliya Police Station for registration. Initially, the offence punishable under section 307 I.P.C. was registered against the respondent, but during treatment the deceased expired at about 5.15 P.M. and, therefore, offence punishable under section 302 I.P.C. was added. Thereafter inquest was held on the dead body and dead body was sent to Dr. Bhanuben Keshavlal Badani for postmortem examination. The doctor performed autopsy on the dead body, after which statements of witnesses who were found conversant with the facts of the case, were recorded. At the conclusion of investigation, the respondent was chargesheeted for the offences punishable under section 302 read with section 452 of I.P.C. The offence under section 302 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. 9 of 1988. The learned Additional Sessions Judge, Jamnagar framed charge against the accused at Exh.2 for the offences punishable under sections 452 & 302 I.P.C. The charge was read over and explained to the respondent, who pleaded not guilty to the same and claimed to be tried. Therefore, the prosecution examined, (1) Dr. B.K. Badani, PW 1, Exh.6, (2) Tejiben Derajbhai, PW 2 Exh.10, (3) Mohanbhai Khimjibhai, PW 3 Exh.11, (4) Aminaben Valimohmad, PW 4 Exh.12, (5) Jagabhai Dadabhai, PW 5, Exh.14, (6) Jenamben Gulsan, PW 6, Exh.15, (7) Gulsan Jusab, PW 7, Exh.16, (8) Jinnatben Harunbhai, PW 8 Exh.17, (9) Janbhai Ibrahim, PW.9 Exh.18, (10) Karimbhai Daudbhai, PW 10, Exh.19, (11) Osmanbhai Kasambhai, PW 11, Exh.20, (12) Abubhai Ishabhai, PW 12, Exh.21,(13) Ramdas Jerambhai Sudane, PW 13, Exh.22, (14) Anopsinh Harisinh, PW 14, Exh.35, and (15) Pradumansinh V.Gohil, PW 15, Exh.37, to prove its case against the respondent. The prosecution also produced postmortem notes at Exh.8, F.I.R. given by the deceased at Exh.23, inquest panchnama at Exh.28, panchnama of place of occurrence at Exh.36 etc. in support of its case against the respondent. After recording of evidence of witnesses for prosecution was over, the learned Judge questioned the respondent generally on the case and recorded his statement under section 313 of the Code of Criminal Procedure, 1973. In his statement, the respondent denied the case of the prosecution, but did not lead any evidence in his defence. On appreciation of medical evidence as well as evidence of mother of the deceased, the learned Judge concluded that the deceased was all througout unconscious and was not in a position to make any statement to any one. The learned Judge further deduced that the so-called complaint given by the deceased was a concocted piece of evidence and the respondent was falsely implicated in the case. In view of these conclusions, the learned Judge acquitted the respondent by the impugned judgment, giving rise to the present appeal.

(3.) Mr. S.R.Divetia, learned A.P.P. submitted that the evidence of head constable Ramdas Jerambhai indicates that he had recorded complaint of the deceased as narrated by her when she was conscious and, therefore, the respondent ought to have been convicted of the offences punishable under sections 452 & 302 of the Indian Penal Code. The learned Counsel highlighted that the dying declaration of the deceased which was initially recorded as her complaint, is supported by other evidence on record and, therefore, the appeal should be accepted.