J.M.PANCHAL - (1.)Criminal Appeal No. 236 of 1989 is filed by the State of Gujarat questioning legality and validity of judgment and order dated February 6, 1989 rendered by the learned Addl. Sessions Judge, Jamnagar, in Sessions Case No. 74 of 1984, acquitting the respondents-original accused, of the offences punishable under Sec. 302 read with Sec. 34 of the I. P. Code. In Criminal Appeal No. 105 of 1989, the appellants, who are the original accused, have challenged the judgment and order dated February 6, 1989, delivered by the learned Addl. Sessions Judge, Jamnagar, in Sessions Case No. 74 of 1984, convicting them of the offence punishable under Sec. 498A of the I. P. Code, and sentencing them to R. I. for two years and fine of Rs. 250/-, in default S.I. for two months. While admitting Criminal Appeal No. 105 of 1989, the Court issued notice calling upon the appellants of Criminal Appeal No. 105 of 1989 to show cause as to why the sentence imposed for the offence punishable under Sec. 498A should not be enhanced. That proceeding is numbered as Misc. Criminal Application No. 564 of 1989. As the two appeals and the proceeding for enhancement of sentence arise out of the common judgment and order dated February 6, 1989, rendered by the learned Addl. Sessions Judge, Jamnagar, in Sessions Case No. 74 of 1984, we propose to dispose them of by this common judgment.
(2.)Briefly stated, the prosecution case is that deceased Dhanuben, wife of Chunilal Savji was residing in Room No. 164, situated in Machhar Nagar area of Jamnagar City along with her husband and three children. The incident took place on June 28, 1984 at about 4-00 a.m. It is the prosecution case that the accused shared common intention to kill Dhanuben and her minor son Ajay, and they, in furtherance of that common intention, poured kerosene over them and lit the fire. As deceased Dhanuben and Ajay received burn injuries, deceased Dhanuben raised shouts for help. Because of the shouts raised by her, neighbours collected at the place where the incident had taken place, and extinguished the fire. Injured Dhanuben as well as injured Ajay were removed to hospital. Mr. R. B. Parmar, who was then discharging duties as P.S.I., Jamnagar City "B" Division Police Station, received information that Dhanuben and Ajay were brought to Irwin Hospital in burnt condition. Thereafter, he proceeded to the hospital and contacted injured Dhanuben. After questioning her, he wrote down her complaint as stated by her. Thereafter, Mr. Parmar went to the police station and made entry in the register. After registering the complaint, P.S.I. Mr. Parmar wrote a Yadi to Executive Magistrate for recording dying declaration of injured Dhanuben. The Yadi was handed over to Executive Magistrate by Mr. Parmar. Thereupon, the Executive Magistrate proceeded to Irwin Hospital for the purpose of recording dying declaration of injured Dhanuben. At the hospital, the Executive Magistrate contacted Dr. Shukla, who was then treating injured Dhanuben and injured Ajay. The Executive Magistrate ascertained from the doctor as to whether Dhanuben was in fit state of mind to give statement. The doctor made an endorsement on the Yadi to the effect that the patient was fully conscious and signed the said endorsement. Thereafter, the Executive Magistrate asked the persons who were near the cot of injured Dhanuben to leave the room, and then questioned Dhanuben. The Executive Magistrate recorded the dying declaration as given by Dhanuben. During the course of treatment, minor Ajay expired at 8-55 p.m., whereas injured Dhanuben expired at about 9-50 a.m. on the same day.
(3.)Dr. Bansidhar Ganpatlal Gupta, who was discharging duties as Assistant Professor and Head of the Department, Irwin Group of Hospitals, Jamnagar, performed autopsy on the dead bodies of Dhanuben and Ajay on June 28, 1984. The doctor who performed the autopsy also prepared the post-mortem notes. Thereafter, the investigation was handed over to Mr. U. T. Brahmbhatt, who was then discharging duties as the Police Inspector, Jamnagar City "B" Division Police Station. The Investigating Officer recorded the statement of several persons. At the conclusion of the investigation, the accused were charge-sheeted for the offences punishable under Sec. 302 read with Sec. 34 of the I. P. Code. As the offences were exclusively triable by the Sessions Court, case was committed to the Sessions Court for trial. The learned Addl. Sessions Judge, framed dharge at Exh. 4 against the accused under Sec. 302 read with Sec. 34 of I. P. Code. The charge was read over and explained to the accused. The accused pleaded not guilty to the charge and claimed to be tried. The prosecution, therefore, in order to prove its case, examined following witnesses : JUDGEMENT_3277_GLR4_2000Html1.htm