SOMABHAI RAMJIBHAI CHOWHAN Vs. STATE OF GUJARAT

JUDGEMENT

(1.) The appellant-accused has challenged in this appeal the impugned judgment and order of conviction and sentence dated 7.4.1998 passed by the learned Additional Sessional Judge, Banaskanta at Palanpur convicting the accused for the offence under Section 302 IPC and sentenced him to suffer life imprisonment. The appellant is the husband of deceased-Mehmudaben. As per the prosecution case, accused came in a drunken condition at about 8.30 p.m. on 22.10.1990 and beaten his wife Mehmudaben by giving fist and kick blows and thereafter poured kerosene on her and then set her at blaze. The accused had another wife and because of that quite often they had quarrels. The incident in question took place at about 10.00 p.m. where she was burnt alive and immediately she ran to the hospital in a burnt condition. Her husband-accused followed her. At the time of incident, except deceased and accused no one else was present in the house.

(2.) Dr.Babubhai Sutharia PW.1 Ex.6 immediately sent yadi at 10.30 p.m. to the police. Shri Ratuji Shivji, Head Constable, PW.6 Ex.28 recorded her statement to the effect that she was burnt alive by her husband by pouring kerosene. On receiving the intimation, the Executive Magistrate, Shri Sumra PW.2 Ex.16 reached the hospital and after ascertaining the fact that deceased-Mehmudaben was completely in conscious condition and able to speak, he recorded dying declaration of Mehmudaben between 11.50 p.m. of 22.10.1990 to 23.10.1990 up to 0.10 a.m. hrs. Shri Lavjibhai Pranami, PSI, who has investigated the case also recorded the dying declaration of deceased-Mehmudaben, which was treated as FIR Ex.42. Initially, case was registered against the accused for the offence under Section 307 IPC. However, Section 302 IPC was added after deceased-Mehmudaben died due to burn injuries. Accused was arrested early in the morning hours at 2.30 on 3.10.1990. Panchnama of seen of offence was prepared on 23.10.1990 between 7.00 to 8.00 a.m. After completing the investigation, the police submitted charge sheet against the accused before the Trial Court for the offence under Section 302 IPC for committing murder of his wife-Mehmudaben. The accused in his statement under Section 313 of Criminal Procedure Code has denied the fact of pouring kerosene on his wife and set her at blaze. He had come out with the defence that he had tried to extinguish the fire. A specific question was put to him in his examination under Section 313 that as per the evidence of Jayaben when deceased-Mehmudaben started running he had also fallowed Mehmudaben and gone to dispensary to which he had stated that he had gone to hospital i.e. the only fact. Except that no other defence was pleaded before the Trial Court.

(3.) Considering the oral as well as documentary evidence lead by the prosecution, which includes as many as three dying declarations; (1) oral dying declaration of deceased-Mehmudaben Ex.7 before Head Constable-Ratuji Shivji at the earliest point of time i.e. about 10.30 p.m.; (2) second oral dying declaration made by deceased-Mehmudaben Ex.18 before Deputy Mamlatdar and Executive Magistrate Mr.Sumra and (3) oral dying declaration Ex.42, which was treated as F.I.R. made by deceased-Mehmudaben before P.S.I., Shri Pranami and Panchnama of seen of offence Ex.44 and also considering the evidence of the accused, the learned Judge came to the conclusion that the prosecution proved its case against the accused beyond reasonable doubt and convicted the appellant-accused for the offence under Section 302 IPC and sentenced him to suffer life imprisonment. That order is challenged in this appeal by the appellant.