(Per : HONOURABLE MR.JUSTICE A.J. DESAI)
1. State of Gujarat has challenged the judgment and order dated 18.6.1992 passed by learned Additional Sessions Judge, Ahmedabad (Rural) in Sessions Case No.1 of 1992 by which respondent - accused has been acquitted from the charges under Sections 302, 450 and 504 of Indian Penal Code.
2. The brief facts of the prosecution are as under:
2.1 That one Ramanbhai Amraji Chunara (Vaghri) lodged a complaint with Aslali Police Station on 12.8.1991, and alleged that, when he entered his house at about 8 to 9 hours in the night, he found that her wife Ganga was burning and was shouting. He also found that neighbours had gathered at his home. His son Jitu tried to extinguish the fire with the help of a mattress. On inquiring, his wife Ganga informed that accused Natubhai Amrabhai Vaghri, who happens to be his brother had started abusing her and started quarreling with her. She further stated before him that the accused took out the carbow of kerosene and sprinkled it on her and put her ablaze with the help of match box. Pursuant to that she sustained burn injuries on her person. She was brought to L.G.Hospital where she was under the treatment when this complaint was lodged by the complainant.
2.2 Pursuant to this complaint, the Police Officer started investigation and having found sufficient material, filed the chargesheet in the Court of learned Chief Judicial Magistrate at Ahmedabad (Rural), who in turn committed the case to the Court of Sessions. The police filed chargesheet under Sections 302, 450 and 504 of Indian Penal Code since the injured died on 14.8.1991. The Sessions Court framed charge at Exh.2 against the accused persons, who denied the same and prayed for the trial. The learned Additional Sessions Judge, after examining 8 witnesses and several documentary evidence, recorded acquittal giving benefit of doubt in favour of the accused.
3. Though notice of admission of this appeal is served, the respondent-accused has not appeared in person or through a lawyer. However, with the help of learned APP Mr.Neeraj Soni, we have decided the case on merits. We have also examined the Record & Proceedings of the case.
4. Learned APP Mr.Neeraj Soni has assailed the judgment of the trial court on the ground that deceased Gangaben was alive when she was admitted in the hospital, and was capable of making declaration about the incident, and accordingly, the police agency had called the Executive Magistrate to record the declaration, which can now be treated as dying declaration, who recorded the same at 2:45 hours in the early morning. He submitted that the dying declaration made before the Executive Magistrate is trustworthy, and only on her dying declaration, the learned trial court ought to have convicted the accused person instead of creating doubts about the declaration. He further submitted that the dying declaration Exh.13 clearly involves the offender, who is her brother-in-law. She has stated that, when she was at her home, the accused came in a drunken condition and was abusing. Thereafter he took out the kerosene carbow and sprinkled kerosene on her person and put her fire with the help of match box. She further declared before the Executive Magistrate that her husband was in the field when she was put her on fire and her son tried to extinguish the fire. She was brought to the hospital.
4.1 We have given considerable thought to the submissions made by learned APP in light of medical evidence and deposition of several witnesses. Now considering the deposition of complainant, who is husband of deceased and who lodged FIR Exh.22, did not support the prosecution. Complainant Ramanbhai Amrabhai, P.W.3 Exh.26, has not supported the prosecution, and he has stated that, he had quarrel with her wife since she had not prepared the food. When he was sleeping outside the house, he found that her wife had put herself on fire. Similarly, deceased son Jitubhai Ramanbhai, P.W. 5 Exh.18, has also not supported the case of prosecution. From his testimony, it appears that, when his father was sleeping outside the house, her mother Gangaben put herself on fire, and with the help of neighbours, he has extinguish the fire and took his mother to the hospital.
4.2 Dr.Parag Jagdishbhai Thakor, P.W. 2 Exh.14, who gave primary treatment to deceased Gangaben, in his deposition stated that, the deceased was having 96% burn injuries. He has stated that each of her hands were covered with bandage. It is pertinent to note at this stage that the prosecution has failed to prove any post-mortem notes before the trial court. In view of this, the trial court was right in observing that the thumb impression of deceased Gangaben which is found on the dying declaration is doubtful, cannot be discarded. The inquest panchnama Exh,8 makes it clear that both the hands were completely burnt and therefore also the thumb impression found on the dying declaration creates doubt. In absence of other cogent and corroborative evidence, and when the dying declaration truthfulness is in question, a person cannot be convicted only on the dying declaration.
4.3 It is well settled principle of law that the appellate court shall be reluctant to interfere with such judgment of acquittal unless the court found it contrary to evidence or palpably erroneous or the view which has been taken by the trial court, could not have been taken by the court of competent jurisdiction while dealing with the appeal against acquittal, the court keeps in view the position that the presumption of innocence in favour of the accused, has been fortified for its acquittal. The golden rule is that the court is obliged and may not abjure its duty to prevent miscarriage of justice where interference is imperative and the ends of justice was required and it is essential to appease the judicial conscience.
5. In our view, the trial court has not committed any error in acquitting the accused person. Hence, the appeal fails and is dismissed accordingly.
(A L DAVE, J.) (A J DESAI, J.) syed/ Top