Decided on December 01,2008



- (1.) THIS Appeal is preferred by the appellant under Section 374 of the Code of Criminal Procedure, 1973, against the judgment and order delivered by Sessions Judge, Jamnagar, on 30th of September, 1999, in Sessions Case No. 35 of 1999, whereby the present appellant, being accused of the said Sessions Case, came to be convicted by learned Sessions Judge, Jamnagar, for the offences punishable under Section 302 of the Indian Penal Code and was sentenced to undergo imprisonment for life and to pay fine of Rs. 500/- in default to undergo simple imprisonment of six months.
(2.) AS per the brief facts of the prosecution case, deceased Roshanben, daughter of Abhu Kasam Jadeja of village Bet, had married to Noor Mohmad Adam Chamadiya, the elder brother of appellant, about five months prior to the date of incident. The family was residing jointly at village Balapar Bet, Taluka Okha. The family members were father-in-law of the deceased Adam Yusuf; mother-in-law of the deceased Aminaben and two brothers of husband - appellant and other Sattar Adam. Havaben, sister of the husband, also was staying in this family, who was aged about 12 years. Other two sisters Memuba, aged about 8 years and Kulsumben, were also staying with them. The incident occurred on or about 4th of December, 1998 at about 11. 00 a. m. all the other family members, including husband of the deceased, were away from the house and deceased Roshanben, Havaben Adhambhai, aged about 12 years and appellant aged about 18 to 19 years, at that time, were in the house. Thereafter, Havaben Adhambhai went to fetch water from the well of the village. Deceased Roshanben was cooking in the kitchen of the house, which was made over by gunny bags partition. When the appellant and deceased Roshanben were alone in the house, the appellant started bantering, gibeying and jesting with deceased Roshanben. Roshanben prevented and told the appellant not to jester, and upon that, the appellant caught hold of the `odhani' of the deceased (a part of Punjabi dress) to wear on shoulder by females, gagged her on face and on her eyes and dragged her in the room, poured some liquid upon her and ignited her. She started burning and started shouting. In the meantime, Havaben Adhambhai, returned after fetching water and she tried to extinguish the fire by pouring water and through quilt. After some times, Noor Mohmad Adam , husband of Roshanben and cousin brother Haji Noor Mohmad and her aunt Sarifaben came and deceased stated to them what had taken place. Her husband Noor Mohmad Adam shifted her to Primary Health Center of Village Bet where Defence Witness No. 1 Dr. Jayantilal Gokalbhai Pagda, treated her and found that she was semi-conscious and was in shock. According to this Doctor, Roshanben had 90% burns and, therefore, she was referred to Mithapur Tata Hospital where she was treated by PW-2 Narbheram Hiradas Gondaliya at about 2. 30 p. m. He found that Roshanben had 80% burn injuries and she was conscious. He informed Mithapur Police Station and when the patient was treated, the police came in the hospital because message of the Doctor had received by Mithapur Outpost Police Station. ASI PW-15 Pratapsinh Kodarji Jadav, thought it fit, to call one Jarinaben, a social worker to accompany him at the Hospital, as according to the message of Dr. Narbheram Hiradas Gondaliya, Roshanben was admitted for burn injuries. PW-15 Prapatsinh Kodarji Jadav, found that Roshanben was conscious and he obtained opinion of Dr. Gondaliya and recorded the complaint of Roshanben, which is at Exhibit-44 at about 5. 15 p. m in the presence of Jarinaben, a social worker and thereafter in the said complaint, for the offence punishable under Section 307 of the Indian Penal Code was initially recorded and thumb impression of the deceased was taken on that and signature of Jarinaben was also obtained. In the said complaint, deceased stated that when appellant and she were alone in the house, the appellant tried to play jest with her. On preventing, she was gagged by `odhani', her eyes and her whole face were tied, and after pouring kerosene, she was ignited by the appellant. The complaint was sent to Outpost of Mithapur Police Station and was registered by PSO Salamsinh Kanubha Jadeja - PW-12. ASI Pratapsinh Kodarji Jadav, PW-15, then arranged to record dying declaration of the deceased and sent wireless message at Dwarka to concerned Executive Magistrate, PW-3 Mansukhbhai Madhabhai Makwana. On receiving wireless message, PW-3 Mansukhbhai Madhabhai Makwana, Executive Magistrate, reached at the hospital at about 17. 00 hours, obtained opinion of the Doctor and found that the deceased was conscious and recorded the dying declaration of the deceased after asking her questions. That dying declaration is at Exhibit-18 wherein he obtained the right hand thumb impression of the deceased and he also signed the said dying declaration. Dying declaration was started by the Executive Magistrate to record from 17. 30 hours and was over by 17. 40 hours. It appears that having regard to the deteriorating health of the deceased, Dr. Narbheram Hiradas Gondaliya, referred the patient to Irwin Hospital at Jamnagar. She was shifted to the charge of Dr. Ambassan of Irwin Hospital at Jamnagar, who in turn, informed the police i. e. PW-14, hospital duty Head Constable Dilipsinh Bhimsinh Jadeja. Patient Roshan was conscious and Head Constable Dilipsinh Bhimsinh Jadeja of Jamnagar also inquired about the incident and deceased Roshanben narrated the same story and PW-14 Dilipsinh Bhimsinh Jadeja inquired whether her dying declaration was recorded or not and that the crime was registered or not. Head Constable Dilipsinh Bhimsinh Jadeja was informed that dying declaration was recorded and the crime was also registered. Roshanben during treatment died in Irwin Hospital on 5th of December, 1998 at about 17. 00 hours and, therefore, the crime was registered under Section - 302 of the Indian Penal Code. Investigation was handed over to PW-16 Narendrasinh Bahadursinh Jadeja, PSI of Okha Police Station. Inquest panchnama was drawn at Jamnagar by Jamnagar Police Station. After due investigation, a charge sheet came to be filed against the appellant in the Court of learned Judicial Magistrate, First Class at Dwaraka, and the case was committed to the Court of Sessions.
(3.) ON 28th of July, 1999, the learned Sessions Judge, Jamnagar, framed charge against the appellant vide Exhibit-5 for the offence punishable under Section 302 of the Indian Penal Code, to which the accused pleaded not guilty. Prosecution, therefore, examined as many as 16 witnesses and produced documentary evidence on record. Thereafter the learned Sessions Judge brought incriminating circumstances appearing in the evidence to the notice of the accused and the defence of the accused was of total denial. The defence thereafter examined Defence Witness at Exhibit-58 Dr. Jayantilal Gokalbhai Pagda, who had examined deceased Roshan, first in point of time, at Primary Health Center of village Bet.;

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