Dineshbhai Rajabhai Bagda & 1 Other(s) vs State Of Gujarat

R.P.Dholaria, J

The appellants have preferred the present appeal under Section 374(2) of the Code of Criminal Procedure challenging judgment and order of

conviction dated 31.12.2013 passed in Sessions Case No. 73 of 2012 by learned Additional Sessions Judge, Gondal, whereby (i) for the offence

punishable under Section 306 of the Indian Penal Code (hereinafter referred to as “IPC†for short), appellant No.1 was sentenced to undergo

rigorous imprisonment for a period of ten years and ordered to pay a fine of Rs.10000/- and in default of payment of fine, further simple imprisonment

for a period of three months was imposed, whereas appellant No.2 was sentenced to undergo rigorous imprisonment for a period of seven years and

ordered to pay a fine of Rs.7000/-and in default of payment of fine, further simple imprisonment for a period of one month was imposed. (ii) for the

offence punishable under Section 498A of IPC, both the appellants were sentenced to undergo rigorous imprisonment for a period of one year and

ordered to pay a fine of Rs.500/- and in default of payment of fine, further simple imprisonment for a period of 10 days was imposed. Both the

sentences were ordered to run concurrently giving the benefit of set off to the appellants.

The case as per the prosecution version is that appellant No.1 â€" Dineshbhai Rajabhai Bagda got married with the deceased â€" Prafulla for about

15 years prior to the date of incident and out of the wedlock, they had four daughters â€" Nirali, Bhavna, Urvashi and Astha. It is the case that as

there was no male child, the appellants accused used to ill-treat and harass the deceased and even the appellant husband used to beat her for not

procuring the male child. On 21.10.2012 in the morning hours, the appellant husband had beaten the deceased and also told her to die as she was not

procuring the male child and as a result thereof, due to such ill-treatment and harassment, the deceased poured kerosene over herself and also over

her four daughters and set on fire and all five succumbed to burnt injuries and died. Thereby, the appellants accused committed an offence punishable

under Sections 306 and 498A of IPC. The complaint was also lodged against the deceased for committing murder of her four daughters, however

since the deceased herself died in the incident, the case came to be abated against her.

Investigation was carried out and charge-sheet came to be filed against the accused in the Court of learned Magistrate. As the case was sessions

triable, the same was committed to the Court of Sessions. Thereafter, the charge came to be framed and explained to the accused, to which the

accused pleaded not guilty and claimed to be tried.

3.1 In order to bring home the charges against the accused, the prosecution examined the witnesses and produced the documentary evidence.

3.2 Thereafter, after filing of closing purshis by the prosecution, further statements of the accused under Section 313 of the Code of Criminal

Procedure, 1973 were recorded. The accused denied the case of the prosecution and submitted that a false case is filed against them.

3.3 At the conclusion of trial and after appreciating evidence on record, the learned trail court delivered the impugned judgment. Being aggrieved by

said judgment and order of conviction dated 31.12.2013 passed in Sessions Case No. 73 of 2012 by learned Additional Sessions Judge, Gondal, the

appellants-accused have preferred the present appeal before this Court.

Learned advocate Mr. Ashish Dagli for the appellants has argued that since two dying declarations are available on record wherein the deceased

has clearly involved the appellant husband and there appears no narration against the mother-in-law, the learned trial court has wrongly convicted the

appellant â€" mother-in-law for the offence punishable under Section 306 of IPC. He has also argued that in the dying declaration recorded by the PSI

on 21.10.2012, the deceased narrated that the appellant husband had beaten her with belt and broom and thereafter also, at the time of proceeding for

his work, he told her to die and not to show her face, due to which feeling bad, she took the extreme step of committing suicide. He has further argued

that in the said dying declaration, in the last sentence only, the deceased stated that as there was harassment from the appellant â€" mother-in-law,

she took the said step. He has argued that even before the Executive Magistrate, the deceased stated the same things as stated before the PSI.

Learned advocate has pointed out that the complainant â€" father of the deceased as well as near relatives had at all not involved the appellants and

the conviction is solely based upon the aforementioned dying declarations. In that view of the matter, learned advocate has argued that there appears

no proximate cause or linking evidence to link the appellant â€" mother-in-law so far as the offence punishable under Section 306 of IPC is concerned.

Learned advocate has ultimately urged that in such peculiar facts and circumstances of the case, if this Court is inclined to reduce the sentence, he

would not claim clean acquittal.

On the other hand, learned Additional Public Prosecutor Ms. Hansa Punani has supported the impugned judgment of the learned trial court and

argued that the learned trial court elaborately dealt with all the contentions raised by the appellants while recording the findings in the judgment based

on evidence available on record, which calls for no interference by this Court. Learned APP has argued that the involvement of appellant No.2

accused â€" mother-in-law is also clearly revealing, though the deceased has not specifically given the details as regards the harassment meted out to

her by accused No.2. Learned APP has ultimately urged that no leniency be shown to the appellants accused.

This Court has minutely gone through the entire record & proceedings, impugned judgment and order as well as evidence of material witnesses.

The record & proceedings clearly indicates that though there was a long-standing married life of 15 years, the deceased could not procure male

child and there was a marital discord between them. The appellant accused â€" mother-in-law was residing separately in the nearby location and she

also used to harass her for not bearing male child. The record & proceedings also clearly reveals that soon after the incident, the Executive Magistrate

on 21.10.2012 recorded the dying declaration of the deceased wherein she clearly stated that the appellant husband used to beat and harass her as she

was not bearing male child. On the day of incident, she was severely beaten by the appellant husband and at the time of proceeding for his work, the

appellant husband told her to die and not to show her face. As a result, feeling bad, the deceased poured kerosene over herself and four daughters and

all five succumbed to burnt injuries and died. The same dying declaration was given by the deceased before the Police Sub Inspector which is at

Exh.42. Even though father of the deceased had lodged the complaint, in his testimony, he has not fully supported the case of the prosecution.

On overall evaluation of the evidence on record, it is clearly emerging out that due to the deceased not procuring the male child, there was a marital

discord between the appellant husband and the deceased, as a result of which, the deceased took the extreme step of committing suicide. The

proximate cause is also revealing involvement of appellant No. 1 â€" accused â€" Dinesh so far as the crime in question is concerned. The record &

proceedings clearly indicates the same deposition of the Investigating Officer as well as other evidence on record that appellant No.2 accused â€

mother-in-law was residing separately and no detail as regards any sort of harassment to the deceased is against her. Even on the day of incident also,

the deceased had not involved her. In that view of the matter, the learned trial court has wrongly convicted the appellant accused No. 2 â€" mother-in-

law under Section 306 of IPC which deserves to be quashed and set aside.

Now, on the aspect of punishment, on going through the impugned judgment and order, the learned trial court has not recorded any reason for

inflicting sentence to the fullest level as provided under the Act. On overall evaluation of the factual scenario, though the deceased took the extreme

step of committing suicide, she had all not stated anywhere either in the dying declarations or before any near relative that as to why she had also

poured kerosene over her four daughters and killed them, for which, she was also booked for the said offence.

In that view of the matter, considering the overall scenario emerging out, this court deems it appropriate to reduce the sentence inflicted upon the

appellant No. 1 from 10 years to 7 years for the offence punishable under Section 306 of IPC and also modifying the sentence of appellant No.2 to the

extent that she has already undergone for about 16 months for the offence punishable under Section 498A of IPC.

In the result, this appeal is partly allowed. So far as appellant No.2 is concerned, her conviction under Section 306 of IPC is quashed and set aside

and while maintaining her conviction under Section 498A of IPC, her sentence is reduced to the extent that she has already undergone. She need not

to surrender. So far as appellant No.1 is concerned, his conviction under Sections 306 and 498A of IPC is confirmed and his sentence is modified and

reduced from 10 years to 7 years. Rest of the direction as regards fine and default sentence shall remain unaltered and he shall surrender for serving

rest of the sentence within three months. The bail and bail bond, if any, stands cancelled. He shall be entitled for commutation and remission. The

judgment and order dated 31.12.2013 passed in Sessions Case No. 73 of 2012 by learned Additional Sessions Judge, Gondal stands modified as above.

Record & Proceedings be sent back to the trial Court concerned forthwith.