Gujarat High Court
State Of Gujarat vs Kantilal Shamjibhai Rathod on 12 April, 2018
Author: G.R.Udhwani
Bench: G.R.Udhwani
R/CR.A/2307/2005 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 2307 of 2005
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE G.R.UDHWANI
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1 Whether Reporters of Local Papers may be
allowed to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy
of the judgment ?
4 Whether this case involves a substantial question
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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STATE OF GUJARAT
Versus
KANTILAL SHAMJIBHAI RATHOD
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Appearance:
MR KL PANDYA, ADDL. PUBLIC PROSECUTOR(2) for the
PETITIONER(s) No. 1
MR HARSHIL C DATTANI(6241) for the RESPONDENT(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE G.R.UDHWANI
Date : 12/04/2018
ORAL JUDGMENT
1. Judgment and order dated 28.07.2005 rendered by the learned Presiding Officer, 5th Fast Track Court, Rajkot (Additional Sessions Judge) in Sessions Case No. 176 of 1997 recording acquittal for the respondent for the offences punishable under Sections 306 and 498A of the Indian Penal Code (for short IPC), is Page 1 of 6 R/CR.A/2307/2005 JUDGMENT assailed in this Appeal under Section 378 of the Code of Criminal Procedure (for short Cr. P.C.).
2. The respondent was married to deceased Sudha about 3 years since the date of incident. The incident in question occurred on 09.04.1997. The deceased allegedly consumed her life on account of beating and harassment to her by respondent for dowry shorter than the respondent's expectations. FIR, was therefore, lodged which is produced at Exh.-46 and on conclusion of the investigation charge-sheet came to be filed and the respondent opted for trial than pleading guilty to the charge framed against him at Exh.-1.
3. Dying declaration of the deceased was recorded on 09.04.1997 at about 3.00 a.m. wherein she pleaded accidental burns caused by fall of kerosene primus on the burning mosquito repellent. The deceased succumbed to the burn injuries, sustained by her at about 1.00 a.m., at 7.00 a.m. on the same day.
4. Prosecution Witness-3 Arunaben Bharatbhai Sonagara sister of the deceased staying in the nearby vicinity of the respondent accused came to be examined at Exh.-31 and in her testimony in paragraph 2 she supported the contents of the dying declaration with elaboration that when she inquired with the deceased about the incident in question, she told her that the primus was pushed down from above by a rodent. It appears that her statement, under Section 161 of Cr.P.C. came to be recorded by police twice, i.e. one before the dying declaration of the deceased and the other subsequent thereto. It is the prosecution case that when her first statement was recorded, the deceased did not complain to her about the harassment from the respondent and that after the Page 2 of 6 R/CR.A/2307/2005 JUDGMENT statement of the deceased was recorded, she revealed to her that the respondent had assaulted her on the head and told her that if she had a pride that her bother is constable, she must forget that, and if she wants to die, she should die at the earliest and after stating that the respondent gave her the cane filled with kerosene in which the deceased doused herself and the respondent ignited three or four match sticks and by fifth match stick, he set her ablaze. These facts, are however, admitted to have been omitted by the witness in her police statement. The witness in her examination admits the omission from her second statement that she found empty kerosene cane in the room and empty bed and therefore, when she asked the respondent about the incident, he advised her to ask her sister. She, however, disputed that she had omitted to mention about the assault and harassment to the deceased by accused, in her second statement.
5. Prosecution Witness-5 the mother of the deceased has stated that she learnt from her daughter that the respondent was harassing her on account of food, clothes, foot-wear and that he was often driving her out of the house in the night. She has also come out with the case that accused told deceased that if he kills and buries her in the house itself, her brother - police constable would be of no help to her. It is worthwhile to note that she has not deposed about the harassment to the deceased for non-satisfaction of the dowry demand by her.
6. For the decision of this Appeal it would be sufficient to refer to the testimony of the above referred two witnesses and the dying declaration above referred as also the medical certificate in relation to the treatment given to the respondent for he having sustained burn injuries while attempting to save his wife i.e. the deceased.
Page 3 of 6R/CR.A/2307/2005 JUDGMENT
7. From the above evidence it would appear that while Prosecution Witness-3 claims the revelation made to her by her sister deceased that the respondent was harassing her on account of non-satisfaction of the demand of dowry, no such evidence is tendered by Prosecution Witness-5 the mother of the deceased. That apart, vital omissions and improvements are found in the testimony of Prosecution Witness-3. As indicated above, the revelation of the incriminating circumstances made to her by the deceased, referred to by the witness in her testimony have been omitted in her statement under Section 161 of Cr.P.C. Thus there seems to be improvement by her on material particulars. As can be noticed that the accusations against the respondent are as vague and general as can be and mitigating circumstance in the nature of the medical certificate Exh.-44 reveals an attempt by the respondent to save the deceased and in such process he is certified to have sustained 15% 1st and 2nd degree burns on both his arms, chest and right leg. No explanation from the prosecution comes forth to explain the injuries sustained by the respondent.
8. Learned APP heavily relied upon the panchnama of the scene of offence Exh.-37 and pointed out that the mosquito repellent was not found by panchas, belying the story that the accidental burn injuries were caused by burning mosquito repellent to the deceased. He would also contend that few burnt match sticks were found at the scene of offence and the primus was found near the corner of the wall and the kerosene was found on the wall with the burnt match stick nearby. According to the learned APP, the findings in the panchnama reveal the story in conformity with the prosecution case that the deceased did not sustain accidental burn injuries but she had committed suicide by setting herself ablaze Page 4 of 6 R/CR.A/2307/2005 JUDGMENT after dousing herself in kerosene. It is true that the panchnama reveals the facts as indicated by the learned APP. Panchnama cannot be relied as substantial piece of evidence. It is merely a corroborative piece of evidence and the substantial piece of evidence is the one discussed hereinabove, not corroborating the facts stated in the panchnama. In the oral dying declaration as well as the dying declaration with the Executive Magistrate the deceased herself came up with the theory of accidental burns.
8.1 Learned APP would contend that statement made by Prosecution Witness-3 in her second statement have not been rebutted by the respondent and therefore, same should be relied upon. In the opinion of this Court, statement recorded under Section 161 of Cr.P.C. cannot be relied upon as substantial piece of evidence. It can be used only for the purpose stated therein. Prosecution Witness-3 was not confronted with the contents of the said statement by the prosecution, neither she was declared hostile when she did not depose in conformity with her statement.
8.2 Learned APP would contend that the marriage span being less than 7 years i.e. 3 years, the presumption under Section 113A ought to be raised and the burden to prove that the respondent accused is innocent may be shifted to him. For invoking Section 113A, it must be shown that the woman had committed suicide within 7 years of her marriage and her husband or relatives subjected her to the cruelty as defined in Section 498A of IPC. No convincing evidence is forth coming to show that the deceased was subjected to cruelty within the meaning of Section 498A of IPC. Thus there can be no presumption under Section 113A.
9. In the light of the above discussion as also for the reasons Page 5 of 6 R/CR.A/2307/2005 JUDGMENT recorded by the court below, this Court finds no reason to interfere in the order of acquittal. The Appeal, must therefore, fail and is dismissed.
(G.R.UDHWANI, J.) Dolly Page 6 of 6