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Judgment
P.W.1,Jethabhai Amarabhai,Neighbour,Exh.2 1
P.W.2,Tidiben Bavlabhai,Neighbour,Exh.2 4
P.W.3,Puriben Ramtubhai,Neighbour,Exh.2 5
P.W.4,Jetiben Dudabhai,Neighbour,Exh.2 6
P.W.5,Kanaiyalal Harilal,Neighbour,Exh.2 7
P.W.6,Ashwinbhai Virbhanubha Chavda,Executive Magistrate,Exh.2 8
P.W.7,Pravindan Ramdan Gadhavi,Doctor,Exh.3 4
P.W.8,Kishorkumar Bhagwanbhai Jani,PSO,Exh.3 4
P.W.9,Chandubhai Narsangbhai Aahir,PSO,Exh.3 5
P.W.1 0,"Ashwinkumar Rameshchandra
Nimbark",Police,Exh.3 7
P.W.1 1,Pramodrai Chhabildas Joshi,Doctor,Exh.3 8
P.W.1 2,Manishbhai Kantigiri Gosai,Doctor,Exh.4 5
P.W.1 3,Sarmanbhai Rambhai Varu,PSI,Exh.4 6
7.,"First Crime, Pradhumannagar Police
Station, Rajkot City",36,
8.,FIR being Registration No.0/2000,,
9.,Injury certificate,38,
10.,Transfer Chit (Chithi),40,
11.,Case papers of hospital,41,
12.,Case papers of hospital,42,
13.,Postmortem note,44,
prosecution.,,,
On perusal of the evidence of P.W.6 â€" Ashwinbhai Virbhanubhai Chawda at Exhibit 28, who was at the relevant time, Executive Magistrate",,,
and has recorded the dying declaration of the deceased Mumtazben, it appears that he has supported the case of the prosecution to the effect that he",,,
has recorded the dying declaration of the deceased after verifying that the deceased was in conscious condition and he has obtained the medical,,,
opinion as to the consciousness of the deceased. He has produced dying declaration at Exhibit 30.,,,
19.1 During his cross-examination, he has adhered to the evidence of the chief-examination. However, he has admitted the fact that he has obtained",,,
opinion of the doctor at a time and got signature thereof. He has admitted that he has not obtained any such endorsement before recording dying,,,
declaration of the deceased. However, he has stated that the doctor has informed him that the patient is in conscious condition. He has admitted that",,,
the thumb impression of the deceased on the dying declaration has not been identified by anybody else. He has stated that the thumb impression was,,,
obtained by himself. He has not deemed it fit to identify by somebody. He has denied the suggestion that at the time of recording dying declaration, the",,,
patient was not in conscious condition and it has fabricated dying declaration.,,,
On perusal of the evidence of P.W.7 â€" Pravindan Ramdan Gadhavi at Exhibit 31, it appears that he has stated that on 24.12.2000, he was on",,,
duty in the Government Hospital and during that time at about 9.30, the deceased was brought in hospital and she has given her complaint before him",,,
and, thereafter, he has sent the FIR to Pradhyumannagar Police Station vide zero number. He has stated that the FIR at Exhibit 32 was given by the",,,
deceased and the deceased has put her thumb impression on the FIR.,,,
20.1 During his cross-examination, he has stated that he has not obtained any opinion of the doctor regarding consciousness of the deceased.",,,
However, he has stated that he came to know from the doctor that the patient was in conscious condition. He has denied the suggestion that the",,,
deceased has not given any complaint and he himself has narrated the entire facts as per his wish.,,,
On perusal of the evidence of P.W.8 â€" Kishorkumar Bhagwanbhai Jani at Exhibit 34, it appears that he has stated that on 25.12.2000, he was",,,
PSO in Halwad Police Station and he got the FIR from Rajkot Police Station having zero number which he has recorded in the FIR register and,,,
investigation was handed over to Shri S. R. Varu. He has stated that he has made necessary endorsement in the station diary accordingly. This fact,,,
has not been challenged by the defence.,,,
On perusal of the evidence of P.W.9 â€" Chandubhai Narsangbhi Aahir at Exhibit 35, it appears that he has stated that on 24.12.2000, he was",,,
serving in Pradhyumannagar Police Station as PSO and he received FIR of the deceased which was made before P. R. Gadhavi and accordingly, he",,,
has recorded the FIR and made necessary entry in the station diary. This fact has not been challenged by the defence.,,,
On perusal of the evidence of P.W.10 â€" Ashwinkumar Rameshchandra Nimbark at Exhibit 37, it appears that he has categorically stated that on",,,
24.12.2000, he was serving in Charadva O.P. and he received Janvajog Entry No.85/2000 dated 24.12.2000 at 18.55 hours for investigation.",,,
Accordingly, he has drawn panchnama of the place of occurrence and has also recorded statements of the neighbours and, thereafter, the",,,
investigation was handed over to PSI Varu. During his examination, the contradiction appeared in the evidence of the neighbours, have been proved.",,,
23.1 During his cross-examination, he has denied the suggestion of the defence that he has not interrogated the witnesses as alleged by him.",,,
On perusal of the evidence of P.W.11 â€" Dr.Pramodrai Chhabildas Joshi at Exhibit 38, who has performed postmortem of the body of the",,,
deceased, it appears that he has stated that on 24.12.2000 before him the body of deceased Mumtazben was brought. He has stated that the deceased",,,
was brought for treatment with history of the burn injury and it was found that there were burn injury on scalp, scalp hair partially burnt, burns on neck",,,
and anterior and posterior aspect of chest and abdomen, private part, both UL and LL i.e. glowing of palmer skin and except sole of feet. He has",,,
stated that thereafter, she was shifted to Rajkot Civil Hospital and he received necessary medical certificate regarding injury and she was not stated to",,,
be an indoor patient and he has informed Vankaner Police Station.,,,
24.1 During his cross-examination, he has admitted that there was no other injury on the body of the deceased except burn injury. He has also",,,
admitted that he has asked the patient regarding history. But, the patient has given history regarding her burn injury.",,,
It appears from the postmortem report at Exhibit 44 that the cause of action of the death is shock due to extensive burn.,,,
On perusal of the evidence of P.W. 12 â€" Dr. Manishbhai Kantigiri Gosai at Exhibit 45, it appears that he has stated that at the relevant time i.e.",,,
on 24.12.2000, he was serving in Rajkot Civil Hospital as medical officer and in the burnt ward, Mumtazben Abbasbhai, resident of Chandpur Taluka:",,,
Vankaner was brought with a history and burn injury and he accordingly treated her and in his presence, dying declaration of the deceased was",,,
recorded by the Executive Magistrate Mr.A. V. Chavda. He has stated that the Executive Magistrate has asked as to whether the patient was in,,,
conscious condition or not. Accordingly, he has opined that she was in conscious condition and accordingly, he has signed in the first part of the dying",,,
declaration which is at Exhibit 30 and he has identified his handwriting and signature. He has stated that after recording of the dying declaration, he",,,
has also made endorsement that the patient was in conscious condition and he has put his signature therein. He has stated that the dying declaration,,,
was recorded in his presence.,,,
26.1 During his cross-examination, he has denied the suggestion of the defence that both the endorsements were made by him after closure of the",,,
dying declaration and the fact that at the time of recording of dying declaration, the patient was unconscious. He has denied the suggestion that he has",,,
created the endorsement on dying declaration afterwards.,,,
On perusal of the evidence of P.W.13 â€" Sarmanbhai Rambhai Varu at Exhibit 46, it appears that he has stated that on 25.12.2000, he was",,,
serving in Halwad Police Station as PSI and investigation of the crime was given to him and accordingly, he has recorded the statements of the",,,
neighbours. During his examination, the statements of Tidiben Bavalbhai, Puriben Ramtubhai, Jetiben Dudabhai and Kanaiyalal Harilal were brought",,,
on record. He has stated that as he was transferred, the further investigation of the case was handed over to Mr.H. P. Dave, who has led the charge-",,,
sheet.,,,
27.1 During his cross-examination, he has denied the suggestion that he has written down the statements of the witnesses according to their versions.",,,
Having considered the oral as well as documentary evidence and re-appreciated the evidence, it appears that the prosecution story is revolving",,,
around the dying declaration of the deceased. Now, on perusal of the dying declaration at Exhibit 30, it is narrated by the deceased Mumtazben that on",,,
the day of the happening, she herself poured kerosene and put her ablaze. The deceased has also stated that after getting divorce from her earlier",,,
husband, she was living with accused No.1 as wife since last three months with her own children. She has also stated that deceased Abbasbhai",,,
Sandhi, accused No.1 has another wife namely Sakinaben and there was quarrel in the family since last three days and as she herself telling accused",,,
No.1 to be separated and at that time, her husband has given her money and instructed her to be separated and due to that, she found herself in a",,,
condition that she was alone and, therefore, she has committed the suicide. The deceased has also narrated that at the time of incident, her new",,,
husband and his first wife Sakinaben were there. The deceased has stated that she has committed suicide by locking door from inside. The deceased,,,
has also narrated that her new husband â€" accused No.1 and his earlier wife Sakinaben brought her to the hospital in jeep. Thus, the version of the",,,
dying declaration clearly suggests that the deceased has taken step of suicide in frustration that her second husband has not agreed to reside,,,
separately with her. It is an admitted fact that the present appellant No.1 and appellant No.2 were husband and wife and the deceased has come as a,,,
second wife of appellant No.1 who has died. Therefore, even the dying declaration is accepted as it is then there is no iota of evidence to connect the",,,
present appellant No.2 with the alleged crime.,,,
It is pertinent to note that on re-appreciating the evidence on record, it is clearly found that there was no any external injury on the body of the",,,
deceased and she has died due to burn injury. It is pertinent to note that on perusal of the entire evidence on record, no iota of evidence is found from",,,
accused No.2.,,,
On perusal of the impugned judgment and order, it clearly transpires that the Trial Court has not appreciated the evidence on record in its proper",,,
perspective and has merely relied upon the evidence of the police witnesses and the factors which are narrated in the chief-examination only. The,,,
Trial Court has not considered the evidence on record properly. On perusal of the impugned judgment and order, it also appears that the Trial Court",,,
has not properly appreciated the fact which has come on record by way of cross-examination of the witnesses. It is pertinent to note that the,,,
neighbours have not supported the case of the prosecution. This fact has not been considered by this Trial Court.,,,
Considering the overall facts and circumstances of the case, it is clearly found that the Trial Court has committed serious error of facts and law in",,,
convicting and sentencing the accused, especially, accused No.2 i.e. first wife of the deceased accused No.1. Therefore, the impugned judgment and",,,
order of the Trial Court is not sustainable in the eyes of law and it deserves to be quashed and set aside and the appeal deserves to be allowed.,,,
For the foregoing reasons, present appeal is liable to be allowed. As the appellant No.1 has died during the pendency of the appeal, so far as he is",,,
concerned, the appeal stands abated. The present appeal is allowed. The impugned judgment and order of conviction and sentence passed by learned",,,
Additional Sessions Judge and Second Fast Track Judge, Dhangadhra in Sessions Case No. 2 of 2001 dated 10.02.2005 for the offence under",,,
Sections 498(A) and 306 of the Indian Penal Code is hereby quashed and set aside. The accused is acquitted from the charges leveled against her.,,,
Fine, if any, paid to be refunded to the accused. Bail bond stands cancelled. Record and proceedings be sent back to the concerned Trial Court",,,
forthwith.,,,