CR.A/136/2005 1/6 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 136 of 2005 For Approval and Signature: HONOURABLE MR. JUSTICE A. L. DAVE HONOURABLE MR. JUSTICE J. C. UPADHYAYA ========================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================= NARENDRA PALABHAI MAKWANA & Another. Versus STATE OF GUJARAT. ========================================= Appearance : Mr MRUGEN K PUROHIT for the Appellants. Mr UR BHATT, APP, for the Respondent. ========================================= CORAM : HON'BLE MR. JUSTICE A. L. DAVE and HON'BLE MR. JUSTICE J. C. UPADHYAYA Date : 22/10/2008 CR.A/136/2005 2/6 JUDGMENT ORAL JUDGMENT :- ( Per :A. L. DAVE, J.) 1. The appellants were the accused before Sessions Court, Rajkot, at Gondal, in Sessions Case No.42 of 2003. Appellant No.1, Narendra Palabhai Makwana, happened be the husband of Ramaben and appellant No.2, Kunverben, is his mother. They both were charged for offences punishable under Sections 306 and 498A read with Section 114 of the Indian Penal Code. Appellant 1 came to be convicted for the offence punishable under Section 306 read with Section 114 of the I. P. C. and was sentenced to undergo rigorous imprisonment for ten years and to pay a fine of Rs.1,000/-, in default, to undergo simple imprisonment for three months. He was also convicted for the offence punishable under Section 498A read with Section 114 of the I. P. C. and sentenced to rigorous imprisonment for three years and to pay a fine of Rs.500/-, in default, to undergo simple imprisonment for 15 days. Accused No.2, Kunverben, was convicted for the offence punishable under Section 306 read with section 114 of the I. P. C. and sentenced to undergo rigorous imprisonment for two years and to pay a fine of Rs.500/-, in default, to undergo simple imprisonment for three months. She was also convicted for the offence punishable under Section 498A read with Section 114 of the I. P. C. and sentenced to undergo rigorous imprisonment for two years and to pay a fine of Rs.500/-, in default, to undergo simple imprisonment for three months. All the sentences were ordered to run concurrently. The CR.A/136/2005 3/6 JUDGMENT judgment was delivered on 30th December, 2004 by 4th Fast Track Court, Gondal. 2. The facts of the case, in brief, are that on 12th January, 2003, Ramaben, deceased wife of appellant No.1-Narendra suffered burns injuries at her home and succumbed thereto. She was taken to hospital at Upleta, where she gave a history that she had suffered burns while she was heating milk. She lodged an F. I. R. (Exhibit 51) before Police and, in that F. I. R. also, she gave the history that while she was heating milk for her son, Umesh, on Primus, she accidentally suffered burns injuries. She was then taken to Junagadh Hospital, where also she gave the history of accidental burns in the same manner. Her dying declaration was recorded by Executive Magistrate (Exhibit 58) and, in that dying declaration also, she gave the history that while she was heating milk on Primus, she suffered accidental burns as her sari caught fire. Later on, when her parents arrived, they disclosed to the police of the burns being homicidal and, at that time, she was alive and, therefore, it was indicated that an offence punishable under Section 307 is constituted. Later on, when she died, it would of course amount to an offence punishable under Section 302 of the Indian Penal Code. However, the police after investigation filed charge sheet in the Court of learned Judicial Magistrate, First Class, Upleta, for the offences punishable under Sections 498A, 306 and 114 of the Indian Penal Code. CR.A/136/2005 4/6 JUDGMENT 2.1 The case was committed to the Court of Sessions and charge was framed against the accused persons at Exhibit 1, to which they pleaded not guilty and came to be tried. 2.2 Considering the evidence, the Trial Court found that the charges levelled against the accused persons were proved and, therefore, recorded conviction and passed sentences, as stated hereinabove. 3. We have heard learned Advocate, Mr. Purohit, for the appellant and learned Additional Public Prosecutor, Mr. Bhatt, for the respondent-State. We have also examined the record and proceedings. 4. We notice from the evidence that the marriage span between the accused-appellant No.1 and the deceased was of more than seven years and, therefore, the presumption clause will not come into play. We do not propose to discuss the bulk evidence, which is recorded by the prosecution in detail since we find that this is a gross case of miscarriage of justice. 5. Undisputedly, the victim, deceased-Ramaben, in her initial versions before hospital at Dhoraji, hospital at Junagadh, F.I.R. before police and dying declaration before Executive CR.A/136/2005 5/6 JUDGMENT Magistrate, was consistent that she had suffered accidental burns. 5.1 Later on, the parents and relatives of the deceased have tried to project the case as if it was a case of attempted murder or murder. 5.2 Later on, during the course of investigation, the Investigating Agency has found that the allegation of attempted murder or murder is not true nor is the version given by the deceased is true and, therefore, filed a charge sheet for offences punishable under Sections 306 and 498A read with Section 114 of the I.P.C. Now, if the evidence of the Investigating Officer is seen, his deposition is at Exhibit 59. He is Somabhai Mohanbhai Patel, who has investigated the case. In his cross-examination, he states that he had not received any material during the investigation to show that Ramaben had committed suicide. He also admits that he had not received any material during the course of investigation that any physical or mental harassment was caused to the deceased by her husband, Narendra, or mother-in-law, Kunverben. 5.3 If above is the situation, we are at loss to understand how the Investigating Officer has filed charge sheet for offences punishable under Section 306 and 498A read with Section 114 of the I. P. C. against the accused-appellants. CR.A/136/2005 6/6 JUDGMENT 6. The picture that emerges, therefore, is that, according to the deceased, she suffered accidental burns. According to her parents, it was a case of murder and that she was set ablaze by pouring kerosene by the accused persons. Both these versions are not accepted by the Investigating Officer and the Investigating Officer files charge sheet for offences punishable under Sections 306 and 498A read with Section 114 of the I. P. C. and he admits that he got no evidence to conclude that the deceased was meted out with any physical or mental torture or harassment or that she committed suicide. In light of the above situation, we are of the view that it is highly risky to confirm the confirmation recorded by the Trial Court and it deserves to be set aside. 7. In the result, the appeal is allowed. The judgment and order of conviction and sentence recorded by the Trial Court is hereby set aside. Appellant No.1 be set at liberty forthwith, if not required in any other case. Appellant No.2 is on bail and her bail bond shall stand cancelled. Fine, if paid, be refunded to the appellants. [ A. L. DAVE, J. ] [ J. C. UPADHYAY, J. ] gt