- (1.) THE appellants original accused were inter alia sentenced to undergo rigorous imprisonment for six months and were ordered to pay fine of Rs. 200/ - in default rigorous imprisonment for one month for offence punishable under section 498(A) r/w section 114 of Indian Penal Code and rigorous imprisonment for life and fine of Rs. 1000/ - in default rigorous imprisonment for three months for offence punishable under section 302 r/w 114 of Indian Penal Code by impugned judgement and order dated 21.12.2004 in Sessions Case No. 156 of 2001 by the Additional Sessions Judge, Fast Track Court No. 3, Bharuch.
(2.) ACCUSED no. 1 is the mother -in -law of the deceased, accused no. 2 is the sister -in -law of deceased, accused no. 3 is the younger brother -in -law of deceased and accused no. 4 is the husband of the deceased. As per the prosecution case, the deceased was meted out with physical and mental torture by the appellants. It is the case of the prosecution that on 25.05.2001 i.e. the date of incident, when the deceased had gone to the common hand pump to fill water and reached home late, the accused persons picked up a quarrel with the deceased and in abetment of each other set the deceased on fire after pouring kerosene on her. It is the case of the deceased that accused no. 2 poured kerosene on the deceased and accused nos. 1 and 3 stood there watching the deceased being set on fire. She succumbed to the injuries on 06.06.2001 during the course of treatment. 2.1 The appellants were apprehended and after investigation charge sheet was submitted. The case was committed to the Court of Sessions. To sustain its case, the prosecution adduced relied upon the following witnesses whose evidences were read before us: (i) P.W. 1 Dr. Zamir Faruki Ex. 11 (ii) P.W. 2 Dr. Maksud Sujela Ex. 14 (iii) P.W. 3 Yakubbhai Patel Ex. 15 (iv) P.W. 4 Huriben Patel Ex. 18 (v) P.W. 5 Vikrmasinh Raj Ex. 20 (vi) P.W. 6 Ismail Patel Ex. 21 (vii) P.W. 7 Mushtaqbhai Patel Ex. 28 (viii) P.W. 8 Nazirbhai Patel Ex. 30 (ix) P.W. 9 Dr. Rinaben Prahladbhai Ex. 34 (x) P.W. 10 Mohanbhai Mistry Ex. 37 (xi) P.W. 11 Zulekhaben Patel Ex. 41 (xii) P.W. 12 Abdul Razak Patel Ex. 42 (xiii) P.W. 13 Pranjivanbhai Bhagvanbhai Ex. 43 (xiv) P.W. 14 Sureshbhai Rana Ex. 45 (xv) P.W. 15 Nimbaji Patil Ex. 47 (xvi) P.W. 16 Ramanbhai Bhailalbhai Ex. 52 (xvii) P.W. 17 Vrajlal Patel Ex. 54 (xviii) P.W. 18 Rasiklal Sanghani Ex. 62 2.2 The prosecution also relied upon the following documents which were perused by us during the course of hearing: (i) Medical certificate issued by Dr. Faruki Ex. 12 (ii) Yadi for recording dying declaration Ex. 13 (iii) Panchnama of clothes of deceased Ex. 17 (iv) Inquest panchnama Ex. 19 (v)Panchnama of scene of offence Ex. 22 (vi) Post mortem notes of deceased Ex. 35 (vii) Yadi sent along with dead body Ex. 36 (viii) Letter to prepare map Ex. 38 (ix) Letter Ex. 39 (x)Map of scene of offence Ex. 40 (xi) Dying declaration Ex. 44 (xii) Extract of telephone vardhi Ex. 48 (xiii) Panchnama of body condition of accused no. 3 Ex. 50 (xiv) Telephone vardhi Ex. 53 (xv) Office copy of yadi Ex. 55 (xvi) Report for adding section 302 Ex. 56 (xvii) Yadi Ex. 57 (xviii) Dispatch note Ex. 58 (xix) Receipt of receiving muddamal Ex. 59 (xx) Forwarding letter Ex. 60 (xxi) FSL opinion Ex. 60A (xxii) Complaint Ex. 63 (xxiii) Statement of deceased Ex. 64 (xxiv) Special Report Ex. 66 (xxv) Wireless message Ex. 67 (xxvi) Letter Ex. 68 2.3 At the end of the trial and after recording the statement of the accused under section 313 of Cr.P.C., and hearing arguments on behalf of prosecution and the defence, the learned Sessions Judge convicted the appellants as mentioned aforesaid. Being aggrieved by and dissatisfied with the aforesaid judgement and order passed by the Sessions Court the appellants have preferred the present appeal.
(3.) MR . ND Nanavaty, learned Senior Counsel appearing with Mr. ND Buch for the appellants submitted that the prosecution has failed to prove the case against the appellants beyond reasonable doubt. He submitted that there are serious discrepancies in the evidence of witnesses and therefore the appellants deserve to be granted benefit of doubt. 3.1 Mr. Nanavaty submitted that the alleged offence occurred on 25.05.2001 whereas the deceased had expired on 06.06.2001 i.e. after about 12 days of the alleged incident. He submitted that in fact the deceased had died due to septicemia and considering the burns sustained by the deceased, it cannot be said that the burns proved to be fatal to the deceased. He submitted that therefore the appellants deserve to be acquitted of the offence charged against them. 3.2 Mr. Nanavaty contended that the trial court ought to have appreciated the fact that there is a grave contradiction in the FIR as well as in the dying declaration recorded by the Executive Magistrate and therefore the appellants deserve to be granted benefit of doubt. He submitted that the dying declaration Ex. 44 has not been signed by the Executive Magistrate and that no identification of deceased was done before recording of the dying declaration. He submitted that the same has been admitted by the Executive Magistrate in his cross examination. He submitted that even the complaint cannot be taken into consideration as the same has been lodged subsequently. 3.3 Mr. Nanavaty submitted that if the first part of the arguments is not accepted by this Court, in the alternative, without prejudice to the submissions made hereinabove, considering the medical evidence and the fact that the deceased had survived for around 12 days after the incident coupled with the fact that the incident had happened in a spur of moment, the Court may consider the case of the appellants under section 304 (Part I) or 304 (Part II) of Indian Penal Code. 3.4 In support of his submissions, Mr. Nanavaty has relied upon the decisions of the Apex Court in the case of B.N. Kavatakar and Another vs. State of Karnataka, 1994 Supp1 SCC 304 and in the case of Maniben vs. State of Gujarat, 2009 8 SCC 796. Ms. CM Shah, learned APP appearing for the respondent State has supported the order of the trial court and has submitted that the trial court has gone into the evidence in detail and has come to the conclusion that the appellants are guilty of the offence so convicted of. She has submitted that considering the barbaric act committed by the appellants, the trial court has rightly convicted the appellants. She also submitted that the sentence imposed upon the appellants is just and proper and does not deserve to be reduced or quashed. 4.1 Ms. Shah submitted that going by the contents in the dying declaration and the complaint, it is amply clear that the accused -appellants are guilty of the offence charged against them. She further submitted that the dying declaration recorded by the Executive Magistrate is in accordance with law and in fact does not need any corroboration. She has relied upon a decision of the Apex Court in the case of Krishan vs. State of Haryana, 2013 3 SCC 280. She submitted that the prosecution witnesses have supported the case of the prosecution.;