SHRI BABUBHAI ALJIBHAI RATHOD & ORS. vs STATE OF GUJARAT

This appeal is at the instance of appellants - original

accused, in an Appeal under Section 374 of the Code of Criminal Procedure and is directed against an judgment and order dated 12.10.2000 passed by the learned Additional Sessions Judge, Ahmedabad (Rural), at Gandhinagar, in Sessions Case No.41 of 1998, by which learned Sessions Judge has convicted the appellants - accused and has ordered to undergo sentence of seven years rigorous imprisonment and to pay a fine of Rs.1000/- each, in default, to further undergo simple imprisonment for three months, for the offence punishable under Section 306 of the Indian Penal Code.

Brief case of the prosecution is that the complainant namely Punamben Baldevbhai, residing at Sarswatinagar, Chandkheda, Dist. Gandhinagar and serving as a Peon in Library Department of ONGC, lodged the complaint on 6.3.1998 against the accused persons before Adalaj Police Station stating that her elder sister namely Ranuka married with Rajubhai Khanabhai of Dholka, before seven years from the incident. It is the case of the prosecution that present appellants came to the house of complainant and told for not sending Renuka to her in-laws house. Even one of accused namely Vijaybhai, who was friend of appellant No.2 - Muljibhaihad raised objection against the engagement and marriage of said Renuka with said Rajubhai Khanabhai and therefore, Renuka was upset and therefore, said Renuka tried to commit suicide on two or three occasions. On 28.2.21998, the complainant went to market for taking vegetable and at that time, she heard shouting and therefore, she immediately came back to her house, where she found that her daughter Renuka set her at fire by pouring kerosene on her person, in the kitchen. Thereafter, the said Renuka was shifted to Civil

Hospital, Ahmedabad and at that time, the accused Vijay ran away. During the course of medical treatment, said Renuka expired on 1.3.1998. Therefore, the complainant filed complaint against the accused including accused namely Vijay. The police registered the offence and arrested the accused and after due investigation charge-sheeted the accused for the aforesaid offences and case was committed before the Court of Sessions, where the accused pleaded not guilty to the charge and claimed to be tried.

The prosecution has also produced documentary evidence on record, which are as under:

Sr. No. Name of the Document Exh.

1 Complaint 12

2 Inquest Panchnama 15

3 Panchnama - Scene of offence 14

4 P.M. Report 19

5 Yadi to Executive Magistrate for D.D. 25

6 Dying Declaration 26

7 Statement of deceased recorded by PSI 30

8 Telephone worthi 32

In order to bring home the charges against the accused persons, prosecution has examined following witnesses

Sr. Name of the witness No. Exh.

1 P.W. 1 Punaben Baldevbhai Rathod 11

complainant

2 P.W. 2 Babubhai Chhaganbhai Parmar 13

3 P.W.3 Dr. Dipakkumar Chanpaklal Jagani 17

4 P.W.4 Vinubhai Ranchhodbhai Patel 22

5 P.W. 5 Savdhanji Vajaji, Executive Magistrate 24

6 P.W.6 Rajesh Kanabhai, husband of deceased 28

7 P.W.7 Punjaji Gopalji Solanki 29

Thereafter, after filing closing purshis by the prosecution, further statements of accused persons under Section 313 of the Code of Criminal Procedure, 1973 were recorded. The accused persons have denied the case of the prosecution and submitted that they are innocent persons and they have been wrongly implicated in the alleged offence.

At the conclusion of trial and after appreciating the oral as well as documentary evidence, the learned Sessions Judge vide impugned Judgment, convicted and sentenced the accused as stated above.

Being aggrieved by and dissatisfied with the said judgment and order of conviction and sentence dated 12.10.2000 rendered by the learned Additional Sessions Judge, Ahmedabad (Rural), at Gandhinagar, in Sessions Case No.41 of 1998, the appellant- accused have preferred the present

appeal before this Court.

Original accused No.1 namely Vijaybhai Alajibhai Makvana has filed one appeal being Criminal Appeal No.1100 of 2000 against the impugned judgment and order. The said accused has already undergone the sentence and he has already been released from the jail. Therefore, said Criminal Appeal is disposed of by this Court vide order dated 6.3.2017.

Learned senior advocate Mr. Yogesh Lakhani appearing for the appellants stated that the judgment and order passed by the learned trial Judge is contrary to law and evidence on record. He further stated that the prosecution failed to prove its case beyond reasonable doubt and there is no any independent witness was examined by the prosecution. There are several infirmities and the learned trial Judge has wrongly relied upon their evidence while convicting and sentencing the accused persons. He also submitted that there is gross delay in filing the FIR i.e. the incident took place on 28.2.1998 and complaint was lodged 6.3.1998 and said delay has not been sufficiently explained by the prosecution. Therefore, the complaint itself is false and vague and under this circumstance, there is no question of conviction and sentence imposed upon the appellants. He also submitted that when the incident took place in the house of the complainant, the present appellants were not there. Even though the complainant dragged the present appellants in the alleged offence. He further submitted that the complaint herself declared hostile witness and therefore, her evidence cannot be said to be reliable piece of evidence, upon which the appellants were ordered to undergo sentence. He drew the

attention to the evidence of the complainant i.e. Punamben Baldevbhai, examined at Exhibit 11 as P.W. 1, wherein said witness stated that her daughter Renuka was married before four years with Rajubhai Khanabhai and after the marriage, her daughter was staying with her i.e. at parental home. She further stated in her evidence that at time of incident, her daughter was in the kitchen and the primus was burst and therefore, she died. Therefore, the evidence of the complainant herself reflects that the deceased had not committed suicide and it is an accident. He also submitted that in the cross-examination of this witness, this witness stated that her daughter poured kerosene on her person. Therefore, the evidence of the complainant itself is not reliable one. He therefore, submitted that the prosecution has not established as to how the accused are linked with the present offence. Simply by raising allegations of harassment on the part of the accused, the accused cannot be held guilty for the alleged offence. He submitted that from the evidence of P.W.2 Babubhai Chhaganbhai Parmar examined at Exhibit 13, it is not transpired that this is a panch witness and he stated whatever as per Panchnama. He drew the attention to the oral evidence of P.W.3 Dr. Dipakkumar Champaklal Jagani exhibit 17 and submitted that this witness before whom, the deceased gave case history, wherein the name co-accused i.e. Vijaybhai, who is uncle of the deceased, is disclosed, but the names of the present appellants are not disclosed. He, therefore, submitted that from the evidence of this witness, it is not established that the accused had committed alleged offence. He also submitted that from the P.M. Note, it appears from the column No.5 that suicidal burns by kerosene due to harassment by her uncle Vijaybhai. Learned senior counsel read the contents of inquest

panchnama at Exhibit 15, wherein it is stated that the deceased poured kerosene on herself and set her at fire at her parental home due to harassment caused by Vijaybhai. Therefore, as per the submissions of the learned senior counsel, for the incident in question, the appellants cannot be held guilty for the alleged offence. He drew the attention to the dying declaration recorded at Exhibit 26, wherein it is stated that due to harassment caused by the appellants, the deceased committed suicide, but as per the column No.10, the deceased gave answer in negative against the question as who caused harassment. It is submitted that said dying declaration cannot be said reliable so far as present appellants are concerned. He further submitted that looking to the overall evidence, it transpires that the prosecution has not established the case against the present appellants and the main accused namely Vijaybhai, who caused harassment upon the deceased, has already undergone his sentence. He also stated that in the statement recorded under Section 313 of the Code of Criminal Procedure, the appellants have made proper defence, but the learned Sessions Judge has not properly appreciated the same, while convicting and sentencing the appellants. From the overall evidence and defence made by the present appellants, the appeal is required to be allowed by quashing and setting aside the impugned judgment and order passed by the trial Court.

Learned APP Mr. N.J. Shah for the State supported the impugned judgment and order of conviction and sentence passed by the trial Court. He read the charge and disclosed the facts of the prosecution case. He also submitted that with the main accused namely Vijaybabhai, the present appellants

are joined as co-accused and therefore, the present appellants can be said abettor and /or directly or indirectly, they were causing harassment. He also stated that from the dying declaration, it appears that the names of the present appellants are stated by the deceased herself. Therefore, present appellants have committed alleged offence, which is proved by the prosecution beyond reasonable doubt. Therefore, the appeal is required to be dismissed by confirming the impugned judgment and order of conviction and sentence imposed by the trial Court.

Perused the records of the case and considered the submissions made by the learned advocates for the respective parties. As per the complaint, elder sister of the complainant namely Ranuka married with Rajubhai Khanabhai of Dholka, before seven years from the incident and the present appellants came to the house of complainant and told for not sending Renuka to her in-laws house. The main accused namely Vijaybhai, who was friend of appellant No.2 - Muljibhaihad raised objection against the engagement and marriage of said Renuka with said Rajubhai Khanabhai and therefore, Renuka was upset and therefore, said Renuka tried to commit suicide on two or three occasions. On 28.2.21998, the complainant went to market for taking vegetable and at that time, she heard shouting and therefore, she immediately came back to her house, where she found that her daughter Renuka set her at fire by pouring kerosene on her person, in the kitchen. Thereafter, the said Renuka was shifted to Civil Hospital, Ahmedabad and at that time, the accused Vijay ran away. During the course of medical treatment, said Renuka expired on 1.3.1998. This Court has perused the charge at

Exhibit 33. P.W.1 Punamben, who is complainant, examined at Exhibit 11, stated in her evidence that her daughter Renuka had died as the stove was burst. She stated in her cross- examination that the present appellants and co-accused namely Vijaybhai did not insist to send the deceased to her in- laws house and therefore, the deceased felt very bad. Therefore, it appears that the complainant herself has stated contradictory version though she declared hostile. Looking to the oral evidence of P.W.3 Dr. Dipakkumar Champaklal Jagani examined at Exhibit 17, it appears that the deceased had given case history before this witness, wherein it is stated that due to harassment on the part of the accused Vijaybhai, the deceased committed suicide. The P.M. Note reflects the name of Vijaybhai, who caused harassment and therefore, deceased got suicidal burns injuries. It appears that one Yadi at Exhibit 25 sent by PSI, Adalaj Police Station to the Executive Magistrate, wherein it also stated that the deceased committed suicide due to harassment given by her uncle Vijaybhai. P.W. 5 - Savdhanji Vajaji Darbar, Executive Magistrate, examined at Exhibit 24, stated in his oral evidence that he had recorded dying declaration of the deceased in Civil Hospital, Ahmedabad. He asked about the incident to the deceased and the deceased stated before him that due to harassment of her family members, she poured kerosene on herself. This witness after completing the dying declaration and getting right leg thumb impression of the deceased, met the Doctor of the hospital and took endorsement on the dying declaration. In the cross-examination, this witness admitted that before starting dying declaration, he had not taken endorsement of the Doctor about the consciousness of the deceased and he had not stated anything about the

consciousness of the deceased in the said dying declaration. It appears that the deceased got 98% burn injuries as per the evidence of the Doctor. The dying declaration reflects that the appellants were taunting her, but in the column No.10, the answer that who was harassing her, she replied in negative. This Court also perused the evidence of P.W. 7 - Punjaji Gopalji Solanki examined at Exhibit 29, who had prepared inquest panchnama produced at Exhibit 15 and he stated in his evidence that he recorded reply of the husband of the deceased namely Rajubhai, who stated that the marriage of the deceased with him, was disliked by the appellants and at the time of marriage, some altercation took place. Said Rajubhai further stated that the accused Vijaybhai was living with the complainant and he prevented him to meet the deceased and the deceased had fear and harassment of the accused Vijaybhai. This witness also admitted that before recording the reply, he had not taken care to take endorsement of consciousness of the deceased from the Doctor. P.W. 6 Rajesh Kanabhai Parmar, husband of the deceased, examined at Exhibit 28, stated in his evidence that the family of the deceased had no grievance or objection about the marriage relationship of the deceased with him and this witness specifically admitted that there was harassment of Vijaybhai upon the deceased and he prevented the deceased to meet with him i.e. Rajeshbhai. This witness also stated that when he met his wife who was admitted in the hospital after getting burns injuries, at that time, she told him that the quarrel took place with Vijaybhai and said Vijaybhai was harassing her and therefore, she poured kerosene on her person. This Court has also perused the Inquest Panchnama at Exhibit 15 and Panchnama at Exhibit 14, wherein it appears

that the deceased committed suicide after pouring kerosene on herself and situation of the kitchen and condition of the said Renuka, who got burns injuries etc. are described. Thus, looking to the overall evidence, it appears that the co-accused Vijay was causing harassment upon the deceased and therefore, the deceased had committed suicide. No doubt, in the dying declaration, it is stated that the appellants were taunting the deceased but it is also reflected that there was no harassment by anyone upon her. Except the dying declaration, all the documents like documentary as well as oral, reflects the name of accused i.e. Vijay, who meted out cruelty upon the deceased and therefore, the deceased committed suicide. Therefore, it appears that the present appellants were wrongly joined by the complainant in the case and learned Sessions Judge has wrongly imposed conviction and sentence upon the present appellants. Therefore, this Court is of the view that present appellants are required to be acquitted for the charges levelled against them.

In the result, the appeal is allowed. The impugned Judgment and order dated 12.10.2012 rendered by the learned Additional Sessions Judge, Ahmedabad (Rural) at Gandhinagar, in Sessions Case No.41 of 1998, convicting and sentencing the appellants is hereby quashed and set aside. The appellants are acquitted for the charges levelled against them. Bail Bonds stands cancelled. Record and Proceedings be sent back to the trial Court concerned forthwith.