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NON-REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL  No(s).  467  OF 2019 (Arising out of SLP(Crl.) No(s).10562 of 2018)

SAVITABEN                                          Appellant(s)

                               VERSUS

THE STATE OF GUJARAT                               Respondent(s)

J U D G M E N T

BANUMATHI, J.:

(1) Leave granted.

(2) This appeal arises out of the judgment dated 24.06.2014

passed by the High Court of Gujarat at Ahmedabad in Criminal

Appeal No.1389 of 2007 in and by which the High Court affirmed

the conviction of accused No.1-Manaharbhai Ambalal Rohit and

accused No.2-Savitaben under Section 302 IPC read with Section

114 IPC and sentenced them to undergo imprisonment for life and

also imposed a fine of Rs.500/- each with default clause. They

were also convicted under Section 452 IPC read with Section 114

IPC  and  sentenced  to  undergo  rigorous  imprisonment  for  two

years along with a fine of Rs.100/- each with default clause.

Accused No.1-Manaharbhai Ambalal Rohit was also convicted u/s

504 IPC and sentenced to undergo rigorous imprisonment for one

month.

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(3) Case of the prosecution is that on 04.06.2005 at 12.00

Noon, complainant-Bhikhabhai Mithabhai Rohit (PW-4) went to his

field. At about 02.30 PM, Narmadaben, wife of the complainant

was at her house and she was admonishing her son Bharat (PW-12)

regarding  some  work.  At  that  time,  accused  No.2-Savitaben

thought that Narmadaben was telling the same to her only which

resulted  in  wordy  quarrel  between  them.  Accused  Manaharbhai

Ambalal Rohit and his wife Savitaben started abusing deceased

Narmadaben.  Thereafter,  accused  Manaharbhai  Ambalal  Rohit

chased Narmadaben with stick to beat her and Narmadaben went

inside the house and closed the door of the house. Accused

Manaharbhai Ambalal Rohit and his wife Savitaben are alleged to

have  broken  the  door  and  thereafter,  accused  Manaharbhai

Ambalal Rohit took Narmadaben to the last room catching hold of

her braid and made her to lie down in the cot. Thereafter,

accused  No.1-Manaharbhai  Ambalal  Rohit  asked  accused  No.2-

Savitaben  to  bring  kerosene.  It  is  alleged  that  accused-

Savitaben  brought  the  jar  of  kerosene  and  gave  it  to  her

husband Manaharbhai Ambalal Rohit and thereafter, accused No.1

poured the kerosene on deceased Narmadaben and set her on fire

and thereafter, both the accused ran away. When Narmadaben fell

down, Rajesh Kumar Makwana (PW-15) and Gunvantsinh Makwana (PW-

16) came there and covered Narmadaben with mattress. Bharat

(PW-12)-son of the deceased went to the field and informed his

father Bhikhabhai Mithabhai Rohit (PW-4) about the incident.

PW-4  went  to  the  house  and  found  his  wife  lying  in  burnt

condition.  According  to  PW-4,  he  asked  Narmadaben  how  the

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occurrence took place and deceased Narmadaben is said to have

narrated  the  whole  occurrence  to  him.  Thereafter,  deceased

Narmadaben was taken to the Civil Hospital, Ahmedabad and she

succumbed to injuries at 07.00 PM.

(4) On the complaint lodged by Bhikhabhai Mithabhai Rohit (PW-

4) on 04.06.2005, case was registered under Sections 302 and

452 IPC read with Section 114 IPC. Dr. Bhargav Jhaveri (PW-1)

conducted  the  post-mortem  on  the  dead  body  of  deceased

Narmadaben and found injuries viz. first to third degree burn

injuries  on  the  face  and  frontal  scalp  hair  including

eyelashes, eyebrows, chest, abdomen, both the hands, both the

legs except sole of left leg, back and private part of the

body. As per post-mortem certificate (Ex.17) issued by PW-1,

there were ninety-five percent burn injuries on the body of

deceased and also opined that the death was due to extensive

burns over the body. Upon completion of investigation, charge

sheet was filed against accused under Sections 302, 452 and 509

IPC read with Section 114 IPC.

(5) To bring home the guilt of the accused, in the trial court

the  prosecution  examined  Bharat  (PW-12)  who  witnessed  the

occurrence,  Rajesh  Kumar  Makwana  (PW-15)  and  Gunvantsinh

Makwana (PW-16) who covered the deceased with mattress, doctor

(PW-3) who admitted the deceased in the hospital, doctor (PW-1)

who  conducted  the  post-mortem  and  other  witnesses.   Upon

consideration of oral evidence and medical evidence and other

facts  and  circumstances,  the  Trial  Court  held  that  the

prosecution has established the guilt of the accused beyond

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reasonable doubt and convicted both the accused under Sections

302 and 452 IPC read with Section 114 IPC and sentenced them to

undergo imprisonment as aforesaid in para (1). In appeal, the

High Court affirmed the conviction and sentence of imprisonment

of both the accused.

(6) The special leave petition qua accused-Manaharbhai Ambalal

Rohit was dismissed by this Court on 3rd December, 2018 and

notice was issued qua appellant-accused, Savitaben.

(7) We have heard Mr. A. Sirajudeen, learned senior counsel

appearing for the appellant and Ms. Hemantika Wahi, learned

counsel appearing for the respondent-State and also perused the

impugned judgment and the evidence/materials on record.

(8) The prosecution mainly relies on the evidence of Bharat

(PW-12) son of the deceased.  As per evidence of Bharat (PW-12)

overt  act  is  mainly  attributed  to  accused  no.1-Manharbhai

Ambalal Rohit.  Bharat (PW-12) has stated that the accused-

Manharbhai Ambalal Rohit abused the deceased-Narmadaben due to

which she rushed from the spot.  Accused-Manharbhai chased the

deceased-Narmadaben  with  stick  to  beat  her  due  to  which

Narmadaben  went  inside  the  house  along  with  her  two  sons,

Bharat (PW-12) and Mehul and closed the door of the house from

inside.  Bharat (PW-12) further stated that the said accused

broke the door and caught hold of his mother and told the

appellant-Savitaben to bring kerosene.  Upon which Savitaben

brought the jar of kerosene and gave the same to her husband-

Manaharbhai  Ambalal  Rohit  who  poured  the  kerosene  on  the

deceased-Narmadaben and set her ablaze with matchstick.

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(9) Though Bharat (PW-12) has attributed bringing of kerosene

can  to  the  appellant-Savitaben,  learned  senior  counsel

appearing for the appellant submitted that the same is not

corroborated by other evidence.  In this regard, our attention

was drawn to the evidence of Dr. Chandrakant (PW-3) who was on

duty in the Emergency Ward of the Civil Hospital, Ahmedabad, on

4th June, 2005.  In his evidence Dr. Chandrakant (PW-3) has

stated that Narmadaben was brought to the hospital at 5:15 p.m.

on  04th June,  2005  and  on  being  questioned,  Narmadaben

personally gave the case history to him i.e. “On 04-06-2005 at

02:00 hrs in the noon, my neighbour Manharbhai Ambalal set me

ablaze by pouring kerosene.  Incident occurred at Ghodasar,

Mehmdabad, Kheda.”  The statement of the deceased-Narmadaben

before  Dr.  Chandrakant  (PW-3)  was  the  earliest  dying

declaration in which deceased-Narmadaben attributed the overt

act  only  to  accused-Manharbhai  Ambalal  and  the  deceased-

Narmadaben  has  not  stated  anything  about  the  appellant-

Savitaben.  So far as the evidence of Dr. Manish (PW-2) is

concerned, who was on duty in the burns ward, it is seen from

the evidence of Dr. Manish that the case history was narrated

to  him  by  the  husband  of  the  deceased-Narmadaben.   It  is

pertinent to note that the prosecution has not examined the

other son of the deceased-Narmadaben, namely, Mehul.  It is

also brought in evidence that there was long-standing enmity

between the family of the deceased and the accused.  It is

further to be noted that there was also delay of six hours in

registration of FIR.

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(10) Considering the facts and circumstances of the case and

that the name of the appellant has not been stated by the

deceased-Narmadaben in her earliest dying declaration before

Dr. Chandrakant (PW-3), in our view, the prosecution has not

established the guilt of the accused and benefit of doubt has

to be given to the accused-Savitaben.

(11) In the result this appeal is allowed.  The conviction of

the appellant-Savitaben is set aside and she is acquitted of

the charge under Section 302 I.P.C. and Section 452 read with

Section 114 I.P.C.  The appellant-Savitaben is ordered to be

released forthwith unless her presence is required in any other

case.

.........................J.                 (R. BANUMATHI)

.........................J.         (R. SUBHASH REDDY)

NEW DELHI, MARCH 11, 2019.