The appellants-convicts have preferred this appeal under Section 374 of the Code of Criminal Procedure, 1973, and challenged the impugned judgement and order of conviction and sentence passed by learned Sessions Judge, Mehsana, on 30.9.1998 in Sessions Case No. 36 of 1998 convicting them for the offence under Section 498A and 306 of Indian Penal Code and sentencing them to undergo various sentences. 2. According to prosecution case accused No. 1 Imrankhan Mehboobkhan Belim was husband of deceased Sultanabibi and accused No. 2 Vajirbibi Mehboobkhan Belim was her mother-in-law. Deceased accused No. 3 Mehboobkhan was her father-in-law. On 24.11.1997 at about 11.00 and 11.30 in the morning Sultanabibi set her on fire by sprinkling kerosene and igniting matchstick as accused Imrankhan inflicted mental cruelty by passing taunting remarks. On account of burns sustained by Sultanabibi, she died.
3. On the basis of F.I.R. lodged by Sultanabibi before Patan Police Station, offences under Section 498A and 114 of the Indian Penal Code were registered and investigation was started. During treatment, Sultanabibi died and therefore offence under Section 306 of the Indian Penal Code was added. During the course of investigation, statement of the witnesses were recorded, panchnamas were drawn, postmortem report of deceased Sultanabibi was obtained, accused Imrankhan and accused Vajirbibi were arrested and on completion of investigation, chargesheet came to be filed against the accused for the offences under Sections 306, 498A and 114 of the Indian Penal Code in the Court of learned Chief Judicial Magistrate, Mehsana. As the offence was triable by the Court of Sessions, the case was committed to the Court of Sessions at Mehsana and it was registered as Sessions Case No. 36 of 1998.
4. The trial Court framed charge Exh. 2 against the accused for the offences under Sections 306, 498A and 114 of the Indian Penal Code. Charge was read over and explained to the accused who pleaded not guilty to the charges and claimed to be tried. Therefore, prosecution adduced evidence. During the course of recording of evidence, accused No. 3 Mehmoodkhan Mohmmadkhan was added as accused by order below Exh. 61. On completion of recording of evidence, incriminating circumstances appearing in th evidence against the accused were explained to them. The accused in their further statement recorded under Section 313 of the Code of Criminal Procedure, denied having committed the offence and stated that they have been falsely implicated. After hearing learned A.P.P. for the State and learned advocate for the accused, the trial Court by impugned judgement convicted accused Imrankhan and accused Vajirbibi but acquitted accused Mehmoodkhan Mohmmadkhan. Being aggrieved by the said decision, the convicts have preferred this appeal.
5. I have heard learned advocate Mr. Trivedi for the appellants and learned A.P.P. Mr. N.J. Shah for the respondent State at length and in great detail. I have also perused the record and proceedings of the trial Court.
6. Learned advocate Mr. Trivedi submitted that prosecution has relied on dying declaration recorded by the Executive Magistrate but the history of injuries recorded by treating Doctor and the dying declaration are contradictory. He also submitted that the history given to the Doctor by the victim indicates that acquitted accused Mehmoodkhan was responsible for her injuries but the witness examined by the Court indicates that the accused was on his duty at the time of commission of the alleged offence. He also submitted that the dying declaration is not recorded in question-answer form and the information given to the police by the treating Doctor indicates that acquitted accused was responsible for the burn injuries. He also submitted that the history given to the treating Doctor is also a dying declaration and therefore when there are two sets of dying declarations which are inconsistent, benefit of doubt is required to be given to the accused. He also submitted that the history given to the Doctor by the victim indicates involvement of the acquitted accused whereas the dying declaration recorded by the Executive Magistrate indicates involvement of accused Imrankhan only. Therefore, the dying declarations are inconsistent and the impugned judgement is required to be set aside and benefit of doubt is required to be given to the accused.
7. Learned A.P.P. Mr. N.J. Shah for the respondent State submitted that the trial Court did not believe the history recorded by the Doctor and the dying declaration recorded by the Executive Magistrate indicates involvement of the accused. He submitted that the evidence of the witnesses clearly indicates that on account of taunting remarks passed by the accused, the victim was forced to commit suicide and therefore the trial Court was justified in convicting the accused and no interference is warranted in the impugned judgement. Hence the appeal is required to be dismissed.
8. It appears from the prosecution case that the deceased was married to the accused Imrankhan on 18.11.1997 and the deceased came to reside with the accused Imrankhan at her matrimonial house in the noon of 23.11.1997. It also appears that the deceased Sultanabibi sustained burn injuries between 11 a.m. and 12 noon of 24.11.1997. Therefore within one and half days of returning to the matrimonial house, deceased Sultanabibi committed suicide.
9. According to the prosecution case, accused Imrankhan passed taunting remarks that the deceased was black, did not like her and asked her to give divorce. Therefore, the deceased committed suicide by sprinkling kerosene and igniting by matchstick. It may be noted that the parties were Muslim and therefore it was not necessary for the deceased to give divorce as husband is free to give divorce according to Muslim rites. Therefore, it is difficult to believe that the deceased committed suicide as accused Imrankhan forced her to give divorce.
10. In order to prove the prosecution case, the prosecution examined Executive Magistrate PW-2 Bhupendrakumar Navnitlal Shah at Exh. 27. According to the witness on receiving yadi Exh. 29 he went to Civil Hospital at Patan and recorded dying declaration Exh. 30. According to the witness he made enquiry about the cause of burn injuries from the deceased who informed him that her husband told her that she did not like him and wanted to marry another girl and would give divorce and therefore she committed suicide by sprinkling kerosene. According to the witness deceased informed him that her husband and mother-in-law were responsible for the injuries. In the cross-examination, the witness deposed that he asked three questions to the deceased but did not record the questions in the dying declaration Exh. 30 but recorded only replies given by her.
11. The prosecution produced dying declaration at Exh.
30. It appears from the dying declaration that it is not in question-answer form but it is recorded in the form of a statement. It also indicates that the accused Imrankhan was inflicting cruelty on her but her father-in-law was not inflicting any cruelty. It is also alleged in the dying declaration that her mother-in-law was harassing her but no specific allegations in that regard are made against her. The dying declaration also bears endorsement of the Doctor that the patient was conscious and was in a position to give answer. It is true that the dying declaration is not in question-answer form and the questions which were asked to the declarant were not recorded by the Executive Magistrate. It is settled proposition that the dying declaration can be relied upon if it is found to be consistent and reliable. It appears that on account of cruelty inflicted by accused Imrankhan, the deceased committed suicide. The allegation against the accused Vajirbibi with regard to cruelty is vague. The declarant has clearly stated that her father-in-law accused No. 3 Mehmoodkhan did not inflict any harassment. Therefore, ill-treatment alleged is only against accused Imrankhan. In light of this evidence, the evidence of treating Doctor before whom the deceased gave history of her burn injuries is required to be examined.
12. According to the prosecution case, after the burn injuries the deceased was taken to her parents house by her father-in-law, mother-in-law and husband and therefrom she was taken to Government hospital for treatment by her relatives. The prosecution examined PW-11 Dr. Dayalal Parikh at Exh. 50 who recorded history of her injuries given by the deceased and treated her in the hospital. As the injured died during the treatment, the history of injuries given by her would be a dying declaration. According to the witness, the deceased informed him that her father-in-law Mehboobkhan Mohmmadkhan set her on fire by sprinkling kerosene. Therefore, he informed the police on telephone to make arrangement for recording dying declaration. According to the witness, the history of injuries given by the deceased was recorded in case paper at Exh. 53. In the cross-examination the witness deposed that the deceased was oriented and when he made enquiry about the incident, relatives were not present.
13. The prosecution produced case papers at Exh. 53. It appears from the case papers that the deceased gave history of her injuries that her father-in-law sprinkled kerosene and set her on fire and the history is recorded at 4.35 p.m. on 24.11.1997 by the Doctor.
14. In view of above evidence it clearly emerges that after the incident of burning the deceased was taken to her parents house and from there her relatives took her to the hospital for treatment. It also appears that when the deceased was admitted in the hospital, she was conscious and oriented. It also indicates that in the history of her burn injuries deceased did not implicate accused Imrankhan and accused Vajirbibi but implicated her father-in-law, the acquitted accused.
15. The prosecution examined PW-13 Kirtikumar Ganpatlal Jaiswal at Exh. 86, Headconstable working at Patan Taluka Police Station who recorded the information of incident given by PW-11 Dr. Dayalal Parikh. According to the witness, the Doctor gave vardhi on telephone that the deceased is admitted in the hospital for treatment as she was set on fire by her father-in-law. According to the witness entry Exh. 88 was recorded at 16.40 hours in the register of incoming telephone by Patan Police Station and thereafter entry Exh. 89 was made at 17.05 hours in the station diary. The witness also deposed that yadi Exh. 90 was given to the Executive Magistrate to record dying declaration. Therefore, it appears that after recording burn injuries in case papers at Exh. 53 at 4.35 p.m. immediately police was informed by the Doctor and entry in that regard was made in the register at the police station at Exh. 88 at 16.40 hours. These documents indicate that the deceased gave history of her burn injuries implicating her father-in-law to the Doctor and did not implicate accused Imrankhan and accused Vajirbibi. In view of this documentary evidence, it emerges that in the dying declaration at Exh. 30 the deceased implicated her husband and mother-in-law but in the history of injuries recorded by the Doctor, she implicated acquitted accused.
16. According to the prosecution, offence was registered on the basis of F.I.R. lodged by the deceased. The prosecution produced FIR at Exh. 37. According to the FIR, accused Imrankhan and accused Vajirbibi were passing taunting remarks and therefore, the informant sprinkled kerosene and set her on fire. It is also stated that her father-in-law and sister- in-law did not harass her. This would also be a dying declaration.
17. In view of above, there are three dying declarations in the form of dying declaration Exh. 30 recorded by the Executive Magistrate, FIR Exh. 37 lodged by the deceased and the history given to the Doctor recorded in case paper at Exh.
53. It emerges that all the three dying declarations are not consistent. Therefore, there are two sets of evidences and it would not be safe to rely on such evidence to connect the accused with the offence.
18. The prosecution examined PW-4 Dr Suresh Naik at Exh. 34 who performed the postmortem of dead body of the deceased.
19. The prosecution examined PW-6 Imtiasbhai Faridkhan, brother of deceased at Exh. 38, PW-7 Madbibi Rustamkhan – aunt of deceased at Exh. 39, PW-8 Lalubibi Aliarkhan, cousin sister of the mother of the deceased. All these witnesses have not supported prosecution case. Therefore, except the evidence of PW-2 Bhupendrakumar, Executive Magistrate and PW-11 Dr. Dayalal Parikh, there is no evidence to prove the prosecution case. Even this evidence is also not consistent. The prosecution evidence of these witnesses raises serious doubt about involvement of the accused. Therefore, benefit of doubt is required to be given to the accused and the impugned judgement and order of conviction and sentence passed by the trial Court is required to be set aside and accused are required to be acquitted of the charges levelled against them.
20. In the result, the appeal is allowed. The impugned judgement and order of conviction and sentence passed by learned Sessions Judge, Mehsana, on 30.9.1998 in Sessions Case No. 36 of 1998 is set aside and the accused are acquitted of the charges levelled against them by giving them benefit of doubt. The accused are on bail. Therefore, their bail bonds stand cancelled. Fine, in any, paid is ordered to be refunded to the appellants.
(BANKIM N. MEHTA, J) (pkn)