Savabhai P. Parmar vs State of Gujarat

Z.K. Saiyed, J.—The present appeal, filed u/s 374 of the Code of Criminal Procedure, 1973, is directed against the judgment and order of conviction dated 29th September, 1993, passed by the learned Additional Sessions Judge, Baroda, in Sessions Case No. 144 of 1992, whereby the learned Additional Sessions Judge was pleased to convict the Appellant for the offence punishable under Sections 498(A) and 306 of the Indian Penal Code and sentenced him to undergo simple imprisonment for a period of two years, and also imposed fine of Rs. 3,000/-; and in default of payment of fine, sentenced him to undergo simple imprisonment for a further period of six months. .

The case of the prosecution is that the deceased was the wife of the Appellant. It is the case of the prosecution that prior to the date of incident, many a times the Appellant used to quarrel with deceased-Dhaniben and deceased was also physically tortured. Therefore, on 13th August, 1992 the deceased-Dhaniben at about 10.15 hours poured kerosene on her body and set herself on fire outside her house. Brother of the Appellant and neighbour of the Appellant had taken the deceased-Dhaniben to S.S.G. Hospital at Baroda. When the doctor, who was present in the hospital, inquired about what has happened, the deceased-Dhaniben told the doctor that she was tortured by her husband and therefore, as a last step, she committed suicide.

Therefore, the doctor intimated the Police Head Constable, who was on duty at hospital, about the incident. Therefore, the said Head Constable intimated about the said incident to the Govra Police Station. P.S.I., Gorva Police Station therefore went to S.S.G. Hospital, Vadodara and recorded statement of Dhaniben. P.S.I. has also taken thumb-mark impression below the statement. Thereafter, as Dhaniben was serious, Yadi was sent to Executive Magistrate for recording Dying Declaration of Dhaniben. Opinion was taken from Medical Officer, Casualty, as to whether Dhaniben was in conscious state of mind and as to whether she was able to give statement or not. The Medical Officer opined that Dhaniben is conscious and able to speak. Thereafter, the Executive Magistrate has recorded Dying Declaration of Dhaniben. Thereafter, looking to the information given in the Dying Declaration, the Executive Magistrate has also recorded statement of one or two witnesses. After perusing the Dying Declaration and statements of witnesses, the Executive Magistrate has lodged complaint with Gorva Police Station on behalf of the Government.

Thereafter, necessary investigation was carried out and panchnama of seen of offence was prepared. Thereafter, the Investigating Officer tried to record the statements of persons, who were residing in the nearby houses, but nobody was found. The PSI, Gorva Police Station, has also inquired about the Appellant, but he was gone to his native. Thereafter, on 14th August, 1992 at about 15.05 hours, it was informed to PSI that Dhaniben was died. Therefore, P.I., Gorval Police Station sent Yadi to District Magistrate for inquest panchnama. Thereafter, statements of witnesses were recorded and as sufficient evidence was found against the Appellant, he was arrested and sent to judicial custody. Thereafter, after receiving P.M. report, as there were sufficient evidence was found, charge-sheet came to be filed against the Appellant in the Court of learned Chief Judicial Magistrate, Baroda. Thereafter, as the offence was exclusively triable by the Court of Sessions, the same was transferred to Sessions Court, Vadodara for adjudication.

Thereafter, charge at Exhibit 7 was read over to the Appellant. The Appellant did not plead guilty and claimed to be tried.

In order to bring home the charges against the Appellant, prosecution has examined in all 08 witnesses and also produced documentary evidence in support of its case.

Thereafter, after filing closing pursis by the prosecution, further statement of Appellant u/s 313 of the Code of Criminal Procedure, 1973 was recorded. In his further statement the Appellant has submitted that he has never tortured his wife, but on the day of incident, as it was Rakshabandhan, deceased-Dhaniben want to go her parental home to tie Rakhi to her brother, but the Appellant was not having money. The Appellant thereafter went for labour work and in the meantime, Dhaniben committed suicide. The Appellant has denied the case of the prosecution and submitted that a false case is filed against him.

After hearing both the sides, the learned Additional Sessions Judge, Baroda, by his judgment and order of conviction dated 29th September, 1993, passed in Sessions Case No. 144 of 1992, convicted the Appellant as stated above.

Being aggrieved by and dissatisfied with the said judgment and order of conviction dated 29th September, 1993 passed by the learned Additional Sessions Judge, Baroda, the Appellant has preferred the present appeal before this Hon''ble Court.

It appears from the earlier orders passed by this Court that Appellant was released on bail vide order dated 28th October, 1993 pending the appeal. Thereafter it seems that notice was issued against the Appellant and the same has been served upon the Appellant. Thereafter, on 18th October, 2010 bailable warrant was issued against the Appellant. Thereafter, statement of brother of the Appellant came to be recorded on 26th October, 2010, in which he has stated that the Appellant is not staying with them. On 27th October, 2010 statement of son of the Appellant was recorded, in which he has given the address of Appellant and therefore, on 07th February, 2011 again bailable warrant was issued against the Appellant. As per the endorsement of the office, bailable warrant was served upon the Appellant. Though this Court has taken so much pain to secure the presence of the present Appellant, he has never bothered to appear before the Court. Looking to the conduct of the Appellant, it appears that Appellant has no interest in the result of the appeal. This matter is of 1993. Present appeal is prolonging since long. Though full opportunity was given to the Appellant to represent his case, he has never appeared before this Court either in person or through counsel. Therefore, today this Court is proceeding with the matter in absence of the Appellant.

I have heard Mr. H.L. Jani, learned Additional Public Prosecutor for the Respondent-State.

Mr. Jani has read the charge at Exhibit 7 and contended that the Appellant was shown as offender of offence punishable u/s 498(A) read with Section 306 of the Indian Penal Code. He has contended that from the oral evidence of witness, prosecution has proved its case beyond reasonable doubt. Mr. Jani has ready oral evidence of Dr. Vaishaliben Dave, PW No. 1 at Exhibit 12 and contended that deceased has in her statement before this witness specifically told that she has committed suicide because of torture given to her by the Appellant. He has also contended that when deceased was admitted to S.S.G. Hospital at Vadodara, before Medical Officer, she has admitted that because of mental and physical torture and cruelty of the Appellant, she has committed suicide. Thereafter, Mr. Jani read the statement of the deceased taken by the P.S.I., Gorva Police Station at Exhibit 25 and contended that in her statement, deceased has narrated the role of the Appellant in connection with harassment and cruelty imposed upon her by the Appellant. Mr. Jani has also read oral evidence of PW No. 2, Deputy Mamlatdar, Vadodara at Exhibit 14 and Dying Declaration of the deceased recorded by this witness at Exhibit 16 and contended that the Dying Declaration is in corroboration with her earlier statements made before the Medical Officer and P.S.I., Gorva Police Station. Thus, the deceased was very consistent in her all statements. Therefore, statements made by the deceased are trustworthy, reliable and acceptable. Even before recording Dying Declaration, Deputy Mamlatdar has verified from the doctor that as to whether deceased was conscious and whether she was fit to give statement or not? Only after receiving opinion of the doctor in affirmative, Dying Declaration was recorded by Deputy Mamlatdar, Vadodara. He has further contended that at the time of recording of Dying Declaration, none was present and even it is not the case of the defence that under the pressure of her relative, said statement and/or dying declaration was given by the deceased. Mr. Jani has also read oral evidence of father of the deceased at Exhibit 14 and oral evidence of brother of the deceased at Exhibit 19 and contended that both these witnesses were aware about the harassment and cruelty imposed upon the deceased. The deceased had told her father and brother about the harassment and cruelty imposed upon her. He has read the judgment and order of the trial Court and contended that prosecution has proved ingredient of Section 498(A) of the Indian Penal Code beyond reasonable doubt. He has contended that the Appellant is an a better, instigator and provocateur. He has contended that the prosecution has proved its case beyond reasonable doubt against the present Appellant. He has contended that the learned Additional Sessions Judge, Vadodara has passed absolutely just and proper order after appreciating all the evidence produced before him. He, therefore, contended that the judgment and order is required to be confirmed.

No doubt Appellant is absent and he has never bothered to appear before the Court. Yet, this Court has taken proper care has minutely observed the oral as well as documentary evidence produced before this Court.

From the perusal of the papers, it appears that statement of the deceased recorded by P.S.I., Gorva Police Station and Dying Declaration recorded by the Deputy Mamlatdar, Vadodara are trustworthy, reliable and acceptable. It transpires from the papers that the deceased was very much consistent in her all statements. She was in conscious state of mind and fit to give statement as opined by the doctor before recording Dying Declaration. Even it is not the case of the defence that under pressure of her relatives, the deceased had given the said Dying Declaration. The witnesses have supported the case of the prosecution. I have not found anything contrary to the statements of the deceased and evidence of the witnesses. I am of the opinion that prosecution has proved its case beyond reasonable doubt.

In view of above, present appeal is dismissed. The judgment and order of conviction and sentence dated 29th September, 1993 passed by the learned Additional Sessions Judge, Baroda, in Sessions Case No. 144 of 1992 is hereby confirmed. The Appellant is on bail. This bail bond shall stand cancelled. The Appellant is, therefore, directed to surrender himself before the Jail Authority to undergo remaining sentence, if any, within a period of four weeks from the date of receipt of this writ, failing which the trial Court concerned is directed to issue non-bailable warrant against the Appellant to effect his arrest. Record and Proceedings, if any, be sent back to the trial Court concerned, forthwith.