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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R.M. CHHAYA, VIRESHKUMAR B. MAYANI, JJ.
State of Gujarat – Appellant
Versus
Ramesh Dhansukh Rathod – Respondent
Criminal Appeal No. 298 of 1997
Decided On : 27-02-2020
Indian Penal Code - Sections 302 and 498-A - Appeal is against judgment and order of acquittal passed by Sessions Judge case of prosecution that respondent-original accused married deceased used to time and again meted mental and physical cruelty upon the deceased - Appeal is case of prosecution that on deceased complainant was at her matrimonial house and when asked for some money for household expenses respondent accused got enrage and assaulted the deceased- original complainant - Court is further case of prosecution that respondent original accused poured kerosene upon body of deceased original complainant and ignited her with match-stick knowing fully well that such act of respondent would cause death of deceased - On aforesaid factual matrix it is case of prosecution that respondent is guilty for offence - Held, Court find evidence on record and upon re-appreciation of deposition of that history which prosecution has brought on record by way of dying declaration statement made before doctor and police officer is not found in deposition of first person to meet deceased after incident and who brought her to hospital said witness is an independent witness is neither relative of anybody and is a man of social status - Couple with doctor who had first admitted deceased also stated that no history as alleged is mentioned by what is brought on record by prosecution as dying declaration before Executive Magistrate and statement recorded by was narrated by deceased even though asked for time leg in three documents itself create doubt of its authenticity Sessions Court having minutely appreciated evidence on record has therefore correctly come to conclusion - Appeal dismissed (Para 17)
Facts of the Case:
Respondent-original accused married the deceased-Vinaben on 18.2.1995. It is the case of the prosecution that the respondent-original accused used to time and again meted mental and physical cruelty upon the deceased. It is the case of the prosecution that on 21.6.1995 when the deceased complainant was at her matrimonial house and when she asked for some money for household expenses, the respondent accused got enrage and assaulted the deceased- original complainant. It is further case of the prosecution that the respondent original accused poured kerosene upon the body of the deceased-original complainant and ignited her with match-stick, knowing fully well that such act of the respondent would cause death of the deceased.
Finding of the Court:
Court find evidence on record and upon re-appreciation of deposition of that history which prosecution has brought on record by way of dying declaration statement made before doctor and police officer is not found in deposition of first person to meet deceased after incident and who brought her to hospital said witness is an independent witness is neither relative of anybody and is a man of social status - Couple with doctor who had first admitted deceased also stated that no history as alleged is mentioned by what is brought on record by prosecution as dying declaration before Executive Magistrate and statement recorded by was narrated by deceased even though asked for time leg in three documents itself create doubt of its authenticity Sessions Court having minutely appreciated evidence on record has therefore correctly come to conclusion.
Result: Appeal dismissed
JUDGMENT :
R.M. CHHAYA, J.
1. The present appeal is against the judgment and order of acquittal passed by the learned Sessions Judge, Jamnagar dated 11.12.1996 in Sessions Case No. 114 of 1995.
2. It is the case of the prosecution that the respondent-original accused married the deceased-Vinaben on 18.2.1995. It is the case of the prosecution that the respondent-original accused used to time and again meted mental and physical cruelty upon the deceased. It is the case of the prosecution that on 21.6.1995 when the deceased complainant was at her matrimonial house and when she asked for some money for household expenses, the respondent accused got enrage and assaulted the deceased- original complainant. It is further case of the prosecution that the respondent original accused poured kerosene upon the body of the deceased-original complainant and ignited her with match-stick, knowing fully well that such act of the respondent would cause death of the deceased. On the aforesaid factual matrix it is the case of the prosecution that the respondent is guilty for the offence under Sections 302 and 498-A of the Indian Penal Code. The first information was lodged by the deceased original complainant at the hospital and the same was registered with A-Division Police Station, Jamanagar City. The respondent came to be arrested and investigation was carried out by the Investigating Officer ultimately charge-sheet was filed under the jurisdiction of the Court and the case was committed to the Court of Sessions at Jamnagar. As the respondent-original accused did not plead guilty, he is put to trial. The prosecution relied upon 14 prosecution witnesses and also relied upon the documentary evidence such as postmortem-note Ex.17, office yadi where the police yadi Ex.29, FIR at Ex.23 and medical papers at Ex.27, the case papers of admission of the deceased to the hospital, case papers relating to treatment given by PW-11 Dr. Hitesh Nareshchandra Shah alongwith the history given by the deceased, dying declaration recorded by the Executive Magistrate at Ex.14, inquest panchnama at Ex.31, panchnama of the scene of occurrence at Ex.32 in particular.
3. The prosecution predominantly relied upon the history given by the deceased to Dr. Hitesh Nareshchandra Shah in the form of a dying declaration. The dying declaration recorded at Ex.14 by the Executive Magistrate, the FIR recorded by PW-14, wherein it was specifically the case of the prosecution before the Sessions Court that these three pieces of evidence amounts to dying declaration as envisaged under Section 32 of the Evidence Act and the guilt of the respondent-original accused have been proved for which he has been convicted for the offence under Sections 302 and 498-A of the Indian Penal Code. The learned Sessions Court after considering the evidence on record, more particularly the evidence of PW-4 who happens to be a counselor of the Municipal Corporation and he reached the house where the incident took place and also took the deceased to the hospital alongwith one of the relative. The learned Sessions Court after appreciating the evidence, dying declaration recorded by the Executive Magistrate as well as the medical history alleged to have been given by the deceased before the Dr. Hitesh Nareshchandra Shah PW-11 came to the conclusion that there are material contradictions as regards time and all the three dying declarations suspicion about its existence. The learned Sessions Court relying upon such findings came to the conclusion that even the endorsement made by the doctor as regards the status of the health of the deceased is doubtful and thus has come to the conclusion that no offence under Section 302 of the Indian Penal Code is made by the prosecution. The learned Sessions Court having examined the evidence on record and also considering the deposition of PW-2 Hiraben Damjibhai Vara who
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