CR.A/5520/2001 1/8 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 55 of 2001 For Approval and Signature: HONOURABLE MR.JUSTICE BHAGWATI PRASAD HONOURABLE MR.JUSTICE BANKIM.N.MEHTA ===================================================== 1 Whether Reporters of Local Papers may be allowed to see the judgment ? No. 2 To be referred to the Reporter or not ? No. 3 Whether their Lordships wish to see the fair copy of the judgment ? No. 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 ? No. 5 Whether it is to be circulated to the civil judge ? No. ===================================================== RAMESHBHAI SOMABHAI SOLANKI - Appellant(s) Versus STATE OF GUJARAT - Opponent(s) ===================================================== Appearance : MS SADHANA SAGAR for Appellant(s) : 1, MS MITA S PANCHAL APP for Opponent(s) : 1, ===================================================== CORAM : HONOURABLE MR.JUSTICE BHAGWATI PRASAD and HONOURABLE MR.JUSTICE BANKIM.N.MEHTA Date : 13/11/2008 CR.A/5520/2001 2/8 JUDGMENT ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE BANKIM.N.MEHTA) 1. The appellant – convict has challenged judgment and order of conviction and sentence dated 30-12-2000 rendered by learned Addl. Sessions Judge, Kheda at Nadiad in Sessions Case No. 86 of 2000 convicting him for offence punishable u/s. 302 of the I.P. Code and sentencing him to undergo sentence of life imprisonment and to pay fine of Rs.2000/-, in default thereof, to undergo further sentence of six months' Simple Imprisonment. 2. In brief, the prosecution case is that on 14-9-1999 at about 18-00 hours the accused demanded money from his wife deceased Jasiben for purchase of liquor, but as she refused to give money the accused pour kerosene and set her on fire and caused her death. 3. It may be recorded that the incident occurred on 14-9-1999 and it was reported to the police on 19-9- 1999 by deceased Jasiben reporting that she received burn injuries by accidental fire. But thereafter on 7-10-1999 deceased Jasiben filed a complaint alleging that the accused demanded money from her to purchase liquor, but as she refused to give money the accused got enraged and set her on fire. 4. On the basis of the complaint, investigation was started. At the end of investigation, charge sheet came to be filed against the accused, for CR.A/5520/2001 3/8 JUDGMENT the offence punishable u/s 302 of the I.P. Code. As the offence was triable by Sessions Court, the case was committed to the Sessions Court, Kheda at Nadiad and it was registered as Sessions Case No. 86 of 2000. Learned Additional Sessions Judge, Kheda at Nadiad, framed charge Exh. 5 for the offence punishable u/s 302 of the I.P. Code. The accused pleaded not guilty and claimed to be tried and therefore the prosecution adduced evidence. 5. On completion of recording of evidence, the learned trial Judge explained to the accused, the incriminating circumstances appearing against him in the evidence. The accused, in his further statement recorded u/s 313 of the Code of Criminal Procedure, stated that he has not committed the offence and he has been falsely implicated in the offence. 6. After hearing the learned A.P.P. for the State and learned advocate for the accused, the trial Court convicted the accused and sentenced him to undergo sentence as mentioned hereinabove. Being aggrieved by the said decision, the accused has preferred the present appeal. 7. We have heard learned advocate Ms. Sadhana Sagar for the appellant and learned A.P.P. Ms. Mita Panchal for the respondent – State at length and in great detail. We have also perused the impugned judgment and records and proceeding of the trial court. CR.A/5520/2001 4/8 JUDGMENT 8. Learned advocate for the appellant mainly contended that there is no evidence to implicate the appellant in the offence except evidence of P.W. 6 and 7 and dying declaration of deceased Jasiben but they are not trustworthy. Therefore, the impugned judgment is erroneous and it deserves to be set aside. 9. Learned A.P.P. Ms. Panchal submitted that the prosecution has proved the case beyond reasonable doubt by adducing cogent and reliable evidence and the learned trial Judge was justified in relying upon the evidence of P.W. 6 and 7 as well as subsequent dying declaration of deceased Jasiben and no interference is warranted in the impugned judgment and the appeal deserves to be set aside. 10. It appears that the trial court has based the conviction relying upon the evidence of P.W. 6 and P.W. 7 as well as alleged dying declaration dated 26-9-1999 of deceased Jasiben. It is not in dispute that deceased Jasiben was married to the accused before about 15 years of the incident. It is also not in dispute that the deceased gave two dying declarations with regard to cause of her death. The incident occurred on 14-9-1999 and immediately after the incident the deceased was taken to Civil Hospital, Nadiad for treatment. On the next day i.e. on 15-9-1999 her dying declaration came to be recorded by the Executive Magistrate, Nadiad City. CR.A/5520/2001 5/8 JUDGMENT The dying declaration is produced on the record of the trial Court at Exh. 28. It reveals that the deceased sustained burn injuries by accidental fire. Therefore, it does not implicate the accused. 11. Thereafter on 19-9-1999 the deceased gave a statement Exh. 45 with regard to the incident to Sub-Inspector, Sojitra Police Station. It indicates that her marriage was happy and she sustained burn injuries by accidental fire. On the basis of this F.I.R., the incident was recorded by making “Janava Jog” entry. Therefore, dying declaration Exh.28 and statement Exh. 45 clearly indicate that the accused was not responsible for burn injuries sustained by the deceased. After about 13 days of the incident, on 7-10-1999 the deceased gave complaint Exh. 42 involving the accused in the incident. Therefore, there are two different versions about the incident. 12. It appears that another dying declaration was recorded by the Executive Magistrate on 26-9-1999. It is not on record as to for what reason another dying declaration was recorded. Strangely it was recorded before complaint Exh. 42 was lodged by the deceased. It is at Exh. 39. It indicates that as the accused did not give money to the deceased for running house-hold there were quarrels and accused set her on fire. This dying declaration is contrary to the prosecution case. 13. In view of above, there are different versions CR.A/5520/2001 6/8 JUDGMENT about the incident. In the first dying declaration and F.I.R. lodged by the deceased, the accused was not implicated but thereafter, in the subsequent dying declaration, the declarant changed her version and alleged that the appellant was responsible for her burn injuries. It appears that second dying declaration was recorded after about 12 days of incident. Therefore, possibility of tutoring cannot be ruled out. In view of this, second dying declaration cannot be relied upon. Therefore, as there are different versions about the manner in which the incident occurred, in our view, the learned trial Judge committed error in relying upon the dying declaration recorded subsequently after about 12 days of the incident and discarding the dying declaration and F.I.R. given immediately after the incident. 14. The prosecution also examined the father of the deceased P.W. 6 Raojibhai Ashabhai at Exh. 19. According to the witness, after the incident, he went to Nadiad Civil Hospital and inquired from the deceased about the burn injuries sustained by her and was informed that the accused was responsible for the burn injuries. However, strangely no complaint with regard to involvement of the accused in the incident was lodged. The witness has admitted having stated before the police on 15-9-1999 that the deceased had sustained injuries by accident. In view of this, it is not safe to rely upon the evidence of this witness and therefore learned CR.A/5520/2001 7/8 JUDGMENT trial Judge committed error in relying upon his evidence. 15. The prosecution also examined P.W. 7 Maheshbhai Rameshbhai Solanki at Exh. 20. The witness was the son of the accused. He is a child witness. The witness admitted that at the time of the incident he was sleeping. Therefore, the evidence of this witness does not take prosecution case any further and the learned trial Judge could not have relied upon his evidence. 16. In view of above, as there are glaring discrepancies in the prosecution case, in our considered view, the learned trial Judge committed error in convicting the accused. Therefore, the present appeal deserves to be allowed and the impugned judgment requires to be set aside. 17. In the result, the appeal succeeds and judgment and order of conviction and sentence dated 30-12-2000 passed by the learned Addl. Sessions Judge, Kheda at Nadiad in Sessions Case No. 86 of 2000 for the offence punishable u/s 302 of the I.P. Code is set aside and the appellant is acquitted of the offence charged against him and he is ordered to set free forthwith unless he is required in any other case. Fine, if paid, be returned to the appellant. The muddamal be disposed of as directed by the trial court. CR.A/5520/2001 8/8 JUDGMENT (Bhagwati Prasad, J.) (Bankim N. Mehta, J.) /JVSatwara/