Gujarat High Court
State Of Gujarat vs Javedbhai Musabhai on 22 February, 2013
Author: Harsha Devani
Bench: Harsha Devani
STATE OF GUJARAT....Applicant(s)V/SJAVEDBHAI MUSABHAI MANIYAR....Respondent(s) R/CR.MA/11378/2012 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL MISC.APPLICATION (FOR LEAVE TO APPEAL) NO.11378 of 2012 In CRIMINAL APPEAL NO.1199 of 2012 ============================================= STATE OF GUJARAT....Applicant Versus JAVEDBHAI MUSABHAI MANIYAR....Respondent ============================================= Appearance: MR HK PATEL, ADDITIONAL PUBLIC PROSECUTOR for the Applicant MR ZUBIN F BHARDA, ADVOCATE for the Respondent ============================================= CORAM: HONOURABLE MS. JUSTICE HARSHA DEVANI Date : 22/02/2013 ORAL ORDER
1. By this application under sections 378(1) and 378(3) of the Code of Criminal Procedure, 1973, the applicant State of Gujarat seeks leave to appeal against the judgment and order of acquittal dated 16th January, 2012 passed by the learned Sessions Judge, Navsari in Sessions Case No.21/2011 whereby he has acquitted the respondent of the offences under sections 498-A, 323 and 306 of the Indian Penal Code.
2. Mr. H.K. Patel, learned Additional Public Prosecutor invited the attention of the court to the record and proceedings of the case and more particularly to the scene of offence panchnama to submit that the same clearly discloses that no remnants of cooking oil were found at the scene of offence and that on the contrary, kerosene was found at the scene of incident and more so, even the clothes were found to be smelling of kerosene. It was submitted that the learned Judge was not justified in relying upon the earlier statement and rejecting the subsequent statement wherein the deceased had categorically stated that the earlier statements were given on account of an assurance on the part of the accused that if she did not state anything adverse to him, he would behave properly with her in future. It was further submitted that from the depositions of the witnesses namely, the brother and father of the deceased, it is evident that the deceased was subjected to extreme harassment, inasmuch as, she was not given food for the last three days, under the circumstances, the learned Judge was not justified in holding that the offences under section 498-A and 306 I.P.C. had not been proved against the accused.
3. The prosecution case is that the first informant Khalilbhai Shaikhlal Maniyar lodged a first information report on 3rd January, 2011 alleging that his sister Parvinben was married to the accused Javedbhai Musabhai Maniyar on 28th May, 2008 as per the custom of their community. Initially for one year after her marriage, Parvinben resided with her in-laws and thereafter since the last one and a half years, the accused had taken her with him to Navsari in Gujarat and had kept a house on rent and he was serving at Shital Hotel at Navsari. That during the said period, time and again the first informant and his parents used to visit his sister whereupon she would complain that her husband was not giving her sufficient funds to run the house and when they requested the accused to permit them to take the deceased with them, he would not send her and used to tell them that they should take her at their expense and come and drop her back at their expense. It is further alleged that his sister was threatened that if she does not come back, he would bring another wife. That about five months prior thereto, they had taken the deceased to their home at Kasoda, taluka Erandol at Jalgaon when she had told them that after the marriage for the first six months she was kept properly, however, thereafter her husband used to beat her up in respect of trivial matters and was not giving her food as well as money for household expenses. However, he had assured her that things would improve and with a view to see that her marital life is not spoiled, they had pacified her and after she stayed for about eight days, she was sent to Navsari alongwith her brother Akeel. That on 1st November, 2011, in the morning, he had received a phone call that Parvin had sustained burn injuries and that he should immediately come home. Thereafter, he alongwith his relatives had left for Navsari, when they received a phone call from Parvin s brother-in-law who told them not to go to Navsari but to come to Surat Civil Hospital where they reached at 10 o clock at night. It is further alleged that when they reached the hospital, they found that Parvin had sustained burn injuries over the entire body and was under treatment in the burns ward and was muttering you may have not given me food for the last three days but atleast give me some water . According to the complainant, the accused had not given any food to his sister for the last few days and that the deceased had told him that if he gives some water, she would tell him the truth whereupon he had given her two lids of water from a bottle of Bisleri whereafter, the deceased had informed them that the accused since the last three days was beating her and was torturing her and was harassing her and was not giving her food and money for household expenses and hence, she was fed up and had, therefore, sprinkled kerosene over herself and set herself ablaze. However, the accused had told her that if she gives a statement in his favour, he would treat her well if she recovers. Hence, she had not talked to anybody about the incident nor had she given any information about the harassment meted out to her. Pursuant to the lodging of the first information report, the same came to be registered for the offence punishable under sections 498-A and 323 I.P.C. Subsequently, Parvinben expired during the course of treatment on 5th January, 2011 after which section 306 I.P.C. also came to be inserted.
4. During the course of trial, the prosecution examined, in all, ten witnesses and produced certain documentary evidence on record including the dying declaration of the deceased. The learned Sessions Judge, Navsari after appreciating the evidence on record came to the conclusion that the prosecution had not proved the charges levelled against the accused beyond reasonable doubt and acquitted him.
5. A perusal of the record reveals that the deceased had, in all, given three statements. The first statement (Exh.44) was recorded on 1st January, 2011 by the Executive Magistrate, Surat; the second statement (Exh.46) was recorded on 2nd January, 2011 by unarmed Head Constable of Khatodara Police Station, Surat City; and the third statement (Exh.41) came to be recorded on 3rd January, 2011 by the Deputy Superintendent of Police, Navsari. Before the Executive Magistrate, the deceased had stated that while she was frying puris on the gas at home, drops of water were spilt on the vessel due to which suddenly there were flames and she was scared due to which the boiling oil fell on her body and she got burnt. Thus, in the statement (Exh.41), the deceased had stated that she had sustained burn injuries on account of oil being spilt on her. In her statement (Exh.46) recorded by the unarmed Head Constable, Khatodara Police Station, the deceased on 2nd January, 2011 had stated that on 1st January, 2011 at about 11 o clock she was alone at home and felt like eating puris hence, she was heating oil on the gas stove at home. At that time, she had taken out the puri from the oil, and was removing the vessel (Kadhai) from the stove, suddenly the same caught flames which touched the punjabi dress she was wearing and her clothes caught fire and she started shouting whereupon her husband Javed Musa came running and covered her with a bedsheet and doused the fire. In her statement before the Deputy Superintendent of Police recorded on 3rd January, 2011, the deceased has stated that her husband/the accused was not giving her money for expenses and that when she asked for money, there was an exchange of words and in a fit of anger, she took out kerosene which was lying in a bottle of pepsi and poured the same over her body and lighted a matchstick and set herself ablaze. Thus, there are three different versions regarding the manner in which the deceased has sustained burn injuries coming on record by way of various dying declarations given by the deceased from time to time before different authorities.
6. The evidence led by the prosecution is required to be examined in the light of the aforesaid three dying declarations. The first informant and his father have deposed in terms of the first information report namely, that when they went to visit the deceased at the hospital, she was muttering that though she may not have been given food for three days, atleast some water should be given to her. Both of the said witnesses have also alleged that the accused was not giving her any money for household expenses and food and that he was harassing her as she did not have children. The evidence on record also reveals that a witness Azizbhai Rasidbhai Maniyar has, in his cross-examination, stated that from the time the incident occurred till the time the deceased died, the accused had taken care of her. He has also admitted that he also was present alongwith him and that during the entire period, the deceased had not stated anything with regard to any kind of harassment being meted out to her. He has also accepted that the deceased was also very sensitive and obstinate. The Scientific Officer of the Forensic Investigation Team from the Navsari Forensic Investigation, Dharmendra Nathubhai Patel has deposed to the effect that there were signs of kerosene at the scene of offence and that there was a smell of kerosene emanating from the clothes gathered at the scene of offence.
7. As can be seen from the evidence referred to hereinabove, the allegation made by the first informant is to the effect that the deceased was not given any food for the last three days and the accused used to harass her by not giving her money for household expenses. In this regard, a perusal of the scene of offence panchnama reveals that there was some cooked rice lying at the scene of offence. There was also a packet of Chicken Masala curry which had been brought from the hotel which was lying there. Two uncleaned dishes wherein meals had been taken were lying there and cup saucers filled with tea were also lying near the gas stove. A vessel containing milk was also kept there. Thus, from the scene of offence panchnama, it appears that two persons had taken meals on the said day and there was ample food lying in the kitchen. Under the circumstances, the allegation that the deceased was not given food for the last three days does not appear to be true. Moreover, even if the last dying declaration given before the Deputy Superintendent of Police on 3rd January, 2011 were to be taken as the true dying declaration, even then all that is stated in the said dying declaration is that the accused was not giving the deceased money to spend and that on her demanding money, there was an exchange of words between them and in a fit state of anger, she had poured kerosene on her body and set herself ablaze. The deceased has also stated that since she did not have children, her husband was taunting her in respect of the same. However, on a plain reading of the dying declaration, insofar as the incident in question is concerned, even as per the deceased, the same had occurred in a fit of anger, inasmuch as, there was an exchange of words in respect of money demanded by her. Even in her dying declaration, the deceased had not stated that she was subjected to any other kind of harassment by the accused.
8. Apart from the fact that there are no allegations of harassment in the dying declaration given by the deceased, the conduct of the accused in immediately coming to the rescue of the deceased and dousing the fire and taking care of her throughout the time she was in the hospital is indicative of the fact that there was no intention on his part to instigate her to commit suicide.
9. The testimonies of the first informant as well as the father of the deceased appear to be highly exaggerated and the contents thereof do not have a ring of truth in them. Under the circumstances, no infirmity can be found in the findings recorded by the learned Judge in holding that the prosecution had not proved the charges levelled against the accused beyond reasonable doubt. On the evidence which has come on record, no offence under section 498-A, section 323 or section 306 of Indian Penal Code can be stated to have been made out. Under the circumstances, no prima facie case has been made out warranting a deeper scrutiny of the evidence on record.
10. Leave is, therefore, refused and the application is rejected.
( Harsha Devani, J. ) hki Page 8 of 8