(Per : HONOURABLE MR.JUSTICE BHAGWATI PRASAD) The present appeal is filed by the appellant-accused feeling aggrieved by the judgment and order dated 20th October 2003 passed by the learned Additional Sessions Judge, Rajkot in Sessions Case No.103 of 2003 whereby the learned Sessions Judge was pleased to convict the appellant-accused for the offence punishable under Sections 302 of IPC and sentenced him to undergo life imprisonment and a fine of Rs.1,000/- in default of which to further undergo SI for one month.
The case of the prosecution is that the appellant herein is husband of deceased Vinuben. That prior to 15 days of the incident the deceased left her in-laws house and went to her parental home as she was subjected to physical and mental harassment. Therefore, brother of the appellant-accused, Mehulbhai, went there 8 days prior to the date of incident for bringing her back. Her parents informed him to advise the appellant not to beat and harass Vinuben and on that condition she was sent back. On the date of the incident i.e. on 13.1.2003 at 13.30 hours the appellant had beaten Vinuben and sprinkled kerosene over her and set her on fire. She was shifted to Civil Hospital, Rajkot. Her statement was recorded by P.S.I., Shri H.I. Trivedi. The police registered the offence vide C.R.No.I 21 of 2003 with Malaviyanagar Police Station for the offence punishable under Sections 323 and 307 of IPC. As the victim died on 19.2.2003 during the course of treatment, Section 302 of IPC was subsequently added. The police after conducting the investigation filed the charge sheet before the court of the learned Judicial Magistrate First Class, Rajkot on 17th May 2003. Since the case is exclusively triable by the court of Sessions, the learned Magistrate committed the case to the Sessions Court at Rajkot under Section 209 of the Code of Criminal Procedure, 1973.
The learned Sessions Judge framed the charge at Exhibit 1. The accused-appellant pleaded not guilty and claimed to be tried. The learned Sessions Judge after conducting the trial convicted and sentenced the appellant-accused as above.
Heard learned counsel for the parties. The case is based on the statement of the deceased Vinuben, wife of the accused-appellant. On the statement of Vinuben, the complaint was recorded in which she has stated that her husband had come home drunk and poured kerosene and set her on fire. On the basis of said statement investigation commenced and during the course of investigation her Dying Declaration was recorded by the Magistrate. The Dying Declaration as recorded by the Magistrate confirms the allegations made in the complaint. The learned counsel for the appellant assailing the conviction recorded by the trial Court has submitted that all the witnesses who have been produced on behalf of the prosecution turned hostile. The conviction is solely based upon the dying declaration of the deceased and the dying declaration of the person who has suffered 65% burns cannot be believed and it should be discarded. He further submitted that if the dying declaration is discarded, there remains nothing on record to sustain the conviction. Per contra, learned Additional Public Prosecutor submitted that the statement recorded by the police is trustworthy and her statement was recorded b the police forthwith and in that she has narrated the entire incident. The Dying Declaration recorded by the Executive Magistrate bears the testimony of what accused has done. If the prosecution witnesses have turned hostile, then it would not mean that the crime had not taken place in the fashion in which it has been narrated by the deceased herself. The learned Additional Public Prosecutor further submitted that the accused has not been able to give any plausible explanation because, the incident had taken place at home and under Section 106 of the Evidence Act it was the bounden duty of the accused to explain his case. Simple denial by the accused is not sufficient to get the burden shifted under the best evidence rule.
We have heard the learned counsel for the parties and perused the record. In our considered opinion, the fact that the other witnesses have not supported the prosecution case is not of any consequence wherein the deceased herself has given the statement to the police, which has been recorded as a complaint. Her statement given to the police is consistent with the statement recorded by the Executive Magistrate. Consistency which is one fact which guarantees that the Dying Declaration as recorded is truthful. If we hold that the Dying Declaration is truthful, then, there is no infirmity in the reasons recorded by the trial Court for convicting the appellant-accused. The doctor in his history has recorded the fact of dying declaration. There is an added assurance that the dying declaration given by the deceased is truthful. No fault can be found with the reasoning given by the trial court in convicting the appellant-accused.
In the result, there is no merit in the appeal. The appeal fails and hence the same is dismissed.
(Bhagwati Prasad, J.) (J.C.Upadhyaya, J.) *mohd Top