DANTANI SHAILESHBHAI VIRAMBHAI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) BY way of the present application u/s.389 of the Code of Criminal Procedure, 1973, the applicant herein ­ original accused has prayed to suspend the sentence imposed by the learned 2nd Additional Sessions Judge, Mahesana in Sessions Case No.27 of 2012 vide judgment and order of conviction and sentence dated 14/12/2012, by which the applicant has been convicted for the offences punishable under Section 306 of the Indian Penal Code and sentenced for 7 years rigorous imprisonment with penalty of Rs.5000/-, in default of such making payment for further sentence of 6 months simple imprisonment.

(2.) HEARD learned advocate Mr.Yogendra Thakore for the applicant and learned APP Ms. Moksha Thakkar for the respondent ­ State. Perused the compilation of evidence produced by the applicant and the impugned judgment.

(3.) HOWEVER , surprisingly the widow of the victim namely, Kantaben Ratilal Dantani in her deposition at Exhibit 27 being P.W. 6 before the Trial Court has categorically deposed on oath that her husband was having less sense and he was habitual drunker. It is her say that because of such mental disorder and habit of drinking, he always quarreled with the family members and that he himself set fire on him and at that time she and her son have tried to set off the fire by using metresses etc. and her son called ambulance and thereafter he shifted to hospital and treated as indoor patient for 27 days and ultimately he succumbed to his burn injuries. Moreover, she has specifically denied the incident as alleged in the complaint. Though she has been declared as a hostile witness and though her husband Ratilal Hiralal Dantani has expired during the treatment because of burn injuries, the fact remains that even Panch Witness of the scene of incident and inquest Panchnama does not support the case of the prosecution. Similarly, deposition of even brother of the victim namely J. H. Dantani at Exhibit 21 being P. W. 7 does not support the complaint and case of the prosecution. However, in the Dying Declaration, the victim had given the name of applicant and other accused and therefore, the trial Court has convicted present applicant as stated herein above.