CR.A/577/2001 1/17 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 577 of 2001 For Approval and Signature: HONOURABLE MR.JUSTICE R.P.DHOLAKIA HONOURABLE MR.JUSTICE KS JHAVERI ========================================================= 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, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================================= GULABSINH SWARUPSINH - Appellant(s) Versus STATE OF GUJARAT - Opponent(s) ========================================================= Appearance : MRS SHILPA R SHAH for Appellant(s) : 1, MR HL JANI, ADDL PUBLIC PROSECUTOR for Opponent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE R.P.DHOLAKIA and HONOURABLE MR.JUSTICE KS JHAVERI Date : 13/03/2008 ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE KS JHAVERI) CR.A/577/2001 2/17 JUDGMENT 1. By way of the present appeal, the present appellant-original accused has challenged the judgement and order of conviction and sentence dated 07.07.2001 passed by the Additional Sessions Judge, Panchmahal at Godhra in Sessions Case No. 223/2000 whereby the present appellant- original accused is held guilty for the offence punishable under section 302 of the Indian Penal Code and sentenced to undergo imprisonment for life and to pay a fine of Rs. 5000/- in default to undergo Simple Imprisonment for a period of six months. 2. The case of the prosecution is that the incident took place on 05.06.2000, at about 07.00 a.m. in the house of the appellant which is situated within the jurisdiction of Kothamba Police Station, Lunawada, Panchmahal. 2.1 The complaint was filed by the victim Dariyaben on 06.06.2000 during her treatment at Kothamba Primary Health Centre before Police Sub-Inspector of Kothamba Police Station, Lunawada. The offence was registered as C.R. No. I-58/2000 with Kothamba Police Station. 2.2 According to the prosecution case, at about 7.00 am on the date of the incident in question i.e. 05.06.2000, the victim Dariyaben who was the wife of the appellant Gulabsinh Swarupsinh was set ablaze after being poured kerosene by her husband-present appellant. It is stated that the victim had CR.A/577/2001 3/17 JUDGMENT knowledge of the illicit relation budding between the victim's husband and one Kokilaben who is the daughter of the villager Shri Pratapbhai Amrabhai. 2.3 According to the prosecution case, there used to be frequent quarrels between the victim and her husband-present appellant as the victim had knowledge about an extra marital affair that the husband of the victim was involved in. The appellant used to harass the victim and frequently asked her to go to her parental home. The victim had on certain occasions left the house of the appellant to go to her parental home but the parents of the victim always sent her back by asking to sort out the issue with her husband. 2.4 It so happened that on the day of the incident, at about 7.00 am the husband of the victim taking her to room, poured kerosene on her and set her ablaze. The victim started screaming. On learning about the incident, a neighbour Laxmanbhai Bhimsinh Solanki-PW5 Exh. 20 came to her rescue. On inquiry she told him that her husband had run away after setting her ablaze. She also told him that all this happened due to the extra marital affair involving her husband. The parents-in-law and sister-in-law of the victim were present at that time. One Shri Ravjibhai and other persons were also present. Thereafter, the victim was taken to Kothamba hospital. At that time the aunt-in-law of the victim and the cousin sister- in-law of the victim were present but the appellant CR.A/577/2001 4/17 JUDGMENT was not present. 2.5 The police was thereafter informed. The doctors at the Kothamba hospital advised the victim to be taken to the Civil Hospital, Godhra as per which the victim was taken to the Civil Hospital. The Police Sub-Inspector, Kothamba Police Station, Lunawada PSI Shri Hirabhai Valabhai Rathod recorded the complaint of the victim which is referred as the first dying declaration of the deceased hereinafter. The offence was thereafter registered against the appellant as C.R. No. I-58/2000 with Kothamba Police Station for the offence punishable under section 302 of the Indian Penal Code. 2.6 Further, according to the prosecution case, PSI Hirabhai, Kothamba Police Station thereafter sent a wireless message to the Executive Magistrate, Godhra to take dying declaration of the victim Dariyaben. On receiving message from the PSI, Kothamba Police Station, Lunawada, the Executive Magistrate, Godhra went to hospital and recorded the dying declaration of the victim on 05.06.2000 at about 10.55 pm which is referred to as the second dying declaration hereinafter. 2.7 Thereafter, according to the prosecution case, during the course of her treatment, the victim Dariyaben succumbed to injury in the hospital on 05.06.2000 at about 12.00 noon. The Marnotar form was filled and inquest panchnama was done and the CR.A/577/2001 5/17 JUDGMENT body was sent for post-mortem. The post-mortem on her body was carried out by the Medical Officer, Civil Hospital, Godhra. The statements of different witnesses were recorded and panchnama of the scene of offence along with panchnama of the body condition of the deceased was carried out. The muddamal items were sent for FSL report. 2.8 After completing investigation and on receipt of the FSL and the post-mortem report, charge-sheet was submitted to the Judicial Magistrate, First Class, Lunawada. Since the case was exclusively triable by the Sessions Court, it was committed to the Court of Sessions, Panchmahal at Godhra registered vide Sessions Case No. 223/2000 which came to be tried by the Additional Sessions Judge, Panchmahal at Godhra. 3.0 Thereafter, the accused remained present before the Court and since he did not plead guilty, the charge vide Ex. 2 was framed on 11.01.2001 against the appellant for the offence punishable under section 302 of Indian Penal Code. 3.1 As the appellant did not plead guilty, the prosecution has examined oral evidences of in all 15 Prosecution Witnesses Medical Officer, Godhra Civil Hospital who performed post-mortem Dr. Rohini Anant Katty(PW1) Ex. 5, Panch of Panchnama of scene of offence-Juwansinh Rumalsinh Solanki(PW2) Ex. 14, Panch of Panchnama of scene of offence-Rajendrakumar Chandrashankar Pandya(PW3) Ex. 16, Panch witness of CR.A/577/2001 6/17 JUDGMENT panchnama of arrest & recovery(PW4) Ex. 17, Witness Laxmanbhai Bhimsinh Solanki (PW5) Ex. 20, Parvatsinh Dajibhai Chauhan(PW6) Ex. 21, Medical Officer who treated the victim-Dr. Prabhakar Ramubhai Bhatiya(PW8) Ex.29, Medical Officer Dr. Jashwantbhai Khatubhai Patel(PW9) Ex. 32, Executive Magistrate- Rameshshankar Mulshankar Pandya (PW10) Ex. 10, Ravjibhai Shankarbhai Patel (PW11) Ex. 35, Brother of victim Babubhai Dahyabhai (PW12) Ex.36, PSI Hirabhai Valabhai Rathod (PW13) Ex. 37, Medical Officer Gambhirsinh Pratapsinh Sakiya (PW14) Ex. 43, PSO Abhaysinh Bhajibhai (PW15) Ex.46. 3.2 The prosecution vide Ex. 8 has produced documentary evidence like complaint Ex. 38, Telephone Vardi Ex. 48, Wireless message for P.I to take dying declaration Ex. 39, Wireless message for Executive Magistrate to take dying declaration Ex. 42, Inquest Panchnama Ex. 7, Police Report for Marnottar Ex. 8, receipt of taking dead body Ex. 9, Report for adding section 302 Ex. 10, Panchnama of Body Condition of victim Ex. 19, Yadi for preparing map Ex. 11, Dying Declaration Ex. 34, post-mortem Note Ex. 14, letter written to FSL Ex. 40, FSL report Ex. 41, FSL letter for taking muddamal Ex. 13. The prosecution vide Ex. 26 has also produced additional documents such as Certificate of treatment of the victim at Kothamba hospital Ex. 44, Certificate of treatment of the victim at Godhra hospital Ex. 30, Yadi written by PSO for dying declaration Ex. 31. CR.A/577/2001 7/17 JUDGMENT 3.3 After hearing both the sides, the learned Sessions court convicted and sentenced the original accused-present appellant as mentioned hereinabove. 4.0 Ms. Shilpa Shah, learned advocate appearing for the original accused-present appellant has submitted that the judgement and order of conviction and sentence as recorded by the Sessions court is contrary to the provisions of law, facts, evidence and circumstances of the case as well as established principles of law and passed devoid of any credible, trustworthy or reliable evidence on record. 4.1 She has further submitted that the dying declaration suffers from inherent infirmities and it creates a doubt regarding its credibility. She has submitted that the dying declaration is not at all trustworthy and the prosecution has not proved the case against the present accused beyond doubt. 4.2 Ms. Shah has submitted that there are no eye witness to the incident and the present appellant was not seen by any of the witnesses. She has submitted that therefore looking to the evidence on record, the benefit of doubt is required to be given to the present appellant. 5.0 Mr. H.L. Jani, learned Additional Public Prosecutor appearing for the respondent State has supported the judgement and order of the Sessions court and submitted that the Sessions court has taken CR.A/577/2001 8/17 JUDGMENT into consideration the evidence in detail and has passed the impugned judgement and order which is in accordance with law. 5.1 Mr. Jani has submitted that in view of the fact that the oral statement made by the victim before one Shri Laxmanbhai Solanki -PW5 corroborates with the statement made before the Medical Officers who treated the victim at Kothamba Primary Health Centre- Dr. Prabhakar Ramubhai Bhatiya(PW8) and Dr. Jashwantbhai Khatubhai Patel(PW9) Ex. 32, Medical Officer, Godhra Civil Hospital Dr. Rohini Anant Katty(PW1) Ex. 5 that her husband had poured kerosene on her, the same is required to be taken at the face value. 5.2 He has submitted that apart from that statement, the victim has also stated before the PSI, Kothamba Police station at about 08.35 the same facts. He has submitted that it is also required to be noted that by way of dying declaration before the Executive Magistrate the victim has stuck to her statement regarding the involvement of her husband-present appellant in the entire incident. 5.3 He has submitted that looking to all these oral evidences and the corroboration between them, the case against the accused is proved beyond doubt and therefore no interference is called for in the sentence. He has submitted that the appeal is devoid of any merits and therefore deserves to be dismissed. CR.A/577/2001 9/17 JUDGMENT 5.4 Mr. Jani has placed reliance on the decisions of the Apex Court in the cases of Vikas & Ors. vs. State of Maharashtra reported in 2008(1) Supreme 433 and Dharam Pal & Ors. vs. State of U.P reported in JT 2008(1) SC 172 in support of his submissions. 6.0 Heard learned counsel for the respective parties and perused the record & proceeding. The present case is mainly based on the dying declaration- the first one being recorded before the Police Sub- Inspector, Kothamba Police Station, Lunawada Shri Hirabhai Valabhai Rathod and the second one being before the Executive Magistrate, Godhra on 05.06.2000 starting at about 1055 hrs and ending at about 1115 hours with a clear mention of the medical opinion that the patient(victim) is fully conscious and in a fit state of mind to give the said dying declaration. In both the dying declarations, the deceased has clearly stated that on 05.06.2000 at about 07.00 am while there was no one at home, she was called at the backyard and was doused with kerosene before being set ablaze. 6.1 The perusal of the oral as well as documentary evidence more particularly, the post-mortem report and other medical evidence go to show that the death of the victim was a homicidal one. The prosecution has successfully proved the same by way of certain evidences. The evidence of Medical Officer, Godhra Civil Hospital Dr. Rohini Anant Katty(PW1) Ex. 5 CR.A/577/2001 10/17 JUDGMENT wherein she has categorically stated that the body of the victim was totally burned and it was a case of second and third degree burns on the entire body. It is stated therein that the cause of the death is shock due to excess burns. 6.2 She has also stated that the on further examination of the internal body, the brain was found to be congested, the lungs were congested, presence of carbon particles was found in the respiratory pipe, the right chamber of heart contained blood whereas the left chamber was empty, the food pipe was congested, presence of gas and faecal material in the large intestine etc. She has also opined that the victim was carrying and that the presence of conception in the uterus was of three months. She was extensively cross examined by the prosecution. 7.0 We have also considered the evidence of one Shri Laxmansinh Solanki PW5- the neighbour who reached the scene of offence immediately. He has stated that the marriage life of the victim and her husband was about ten years and that they used to have frequent fights between them. He has stated that the accused used to physically assault the victim as a result of which the victim used to go to her parental house quite often. However, the parents after consoling her would send her back to her marital home. He has further stated that on the day of the incident i.e. 05.06.2000, at about 07.00 am, he learnt that the victim was burnt. He therefore immediately rushed to CR.A/577/2001 11/17 JUDGMENT the house of the victim only to find her alive lying in the veranda of the appellant's house. He has stated that at that particular time he asked the victim about the happening of the incident to which she told him that because she was in know of the extramarital relation of her husband with some other lady, her husband had poured kerosene on her, set her ablaze and ran away. 7.1 Shri Laxmansinh has stated that the victim was then taken to the Primary Health Centre, Kothamba. The doctor at the hospital asked the victim the entire incident which was narrated by the victim. It is stated that the aunt of the appellant and his cousin sister were present there but the appellant was not present. It is also stated that at that time the police was informed and they came to the hospital for lodging FIR. He has stated that the doctor stated the condition of the victim to be serious and advised her to be taken to Godhra Civil Hospital. The victim was accordingly taken to Godhra Civil Hospital where she was administered treatment. The victim expired on 05.06.2000 at about 12.30 pm after her relatives reached at about 12.00 pm. Shri Laxmansinh was cross examined in detail but nothing incriminating is shown by the learned advocate for the appellant. 8.0 The evidence of the three medical officers are also considered by this Court namely evidence of Dr. Jashwantbhai Khatubhai Patel PW9-Medical Officer at CR.A/577/2001 12/17 JUDGMENT Kothamba Primary Health Center before whom she has stated that she was set ablaze after being poured kerosene. This was her second oral statement. Thereafter, perusing the statement of Dr. Gambhirsinh Pratapsinh Sakiya-Medical Officer at Kothamba Primary Health Center also reveals the same fact that she has stated before him as well that she was set ablaze by her husband after dousing her with kerosene. She was later taken to Godhra Civil Hospital and the statement made before Dr. Prabhakar Ramubhai Bhatia PW8 who was the Medical Officer also gives the same picture that she was burnt by her husband. 9.0 As far as the role of the present appellant is concerned, the incident in question had taken place in the early morning at around 7.00 am. The first person to reach to the scene of offence was Shri Laxmanbhai Solanki. The victim has clearly stated before the said Laxmanbhai that it was her husband who had poured kerosene on her and set her ablaze. She has also mentioned the reason/cause behind such an action. She has stated that since she came to know about the extramarital relationship budding between her husband and another lady, he took such a step. Apart from that, the statements made before the three medical officers at the relevant hospitals where the victim was treated also go to show that the victim has stated before them that her husband is the person who has poured kerosene on her and set her ablaze. All the three doctors have produced the original case papers and the hospital records. CR.A/577/2001 13/17 JUDGMENT 10.0 The PSI who has lodged the FIR has also produced the original FIR and has proved the statement made by the victim before him. Thereafter, the Executive Magistrate who has recorded the dying declaration at Ex. 34 when the victim was in a fit state of mind also corroborates the say of the other witnesses regarding the involvement of the present appellant in the entire incident. The dying declaration and the oral declaration made by the victim before various witnesses corroborate with each other and therefore there is no reason as to why the said dying declaration and the oral statements should not be considered trustworthy. 11.0 At this stage, it would also be quite relevant to peruse the decision of the Apex Court in the case of Vikas & Ors. (supra) reported in 2008(1) Supreme 433 as cited by Mr. Jani, learned APP. Para 34 of the said decision reads as under: “34. Considering the views expressed by different High Courts and also leading commentaries, the Court summarized the principles thus: (1)that it cannot be laid down as an absolute rule of law that a dying declaration cannot form the sole basis of conviction unless it is corroborated; (2)that each case must be determnined on its own facts keeping in view the circumstances in which the dying declaration was made; (3)that it cannot be laid down as a CR.A/577/2001 14/17 JUDGMENT general proposition that a dying declaration is a weaker kind of evidence than other piece of evidence; (4)that a dying declaration stands on the same footing as another piece of evidence and has to be judged in the light of surrounding circumstances and with reference to the principles governing the weighing of evidence; (5)that a dying declaration which has been recorded by a competent magistrate in the proper manner, that is to say, in the form of questions and answers, and, as far as practicable, in the words of the maker of the declaration, stands on a much higher footing than a dying declaration which depends upon oral testimony which may suffer from all the infirmities of human memory and human character, and (6)that in order to test the reliability of a dying declaration, the Court has to keep in view the circumstances like the opportunity of the dying man for observation, for example, whether there was sufficient light if the crime was committed at night; whether the capacity of the man to remember the facts stated had not been imparied at the time he was making the statemetn, by circumstance beyond his control; that the statement has been consistent throughout if he had several opportunities of making a dying declaration apart from the official record of it; and that the statement had been made at the earliest opportunity and was not the result of tutoring by interested parties.” 11.1 As a result of the perusal of the aforesaid decision, the principles regarding applicability of dying declaration have become well settled. Conviction can be based solely on dying declaration CR.A/577/2001 15/17 JUDGMENT if the conditions therefore are fulfilled. Further the principle underlying admissibility of dying declaration is reflected in the well-known legal maxim: Nemo moriturus praesumitur mentire; i.e. a man will not meet his Maker with a lie in his mouth. 11.2 Moreover, the dying declaration of the deceased should be of such a nature as to inspire full confidence of the Court in its correctness. The Court has to be on guard that the statement of deceased was not as a result of either tutoring, or prompting or a product of imagination. The Court must be further satisfied that the deceased was in a fit state of mind after a clear opportunity to observe and identify the assailant. Once the Court is satisfied that the declaration was true and voluntary, undoubtedly, it can base its conviction without any further corroboration. It cannot be laid down as an absolute rule of law that the dying declaration cannot form the sole basis of conviction unless it is corroborated. The rule requiring corroboration is merely a rule of prudence. 12.0 The decision of the Apex Court in the case of Dharam Pal and Ors. (supra) is also perused by this Court wherein in similar principle is discussed. The Apex Court has held that when a statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, such a statement is relevant in every case or proceeding in which the cause of the CR.A/577/2001 16/17 JUDGMENT person's death comes into question. 13.0 Applying the above principles to the facts of the case, the Sessions court was fully justified in passing the aforesaid sentence to the present appellant. In view of the same, it is clear that this is a pure case of homicidal death. The FSL/post-mortem report also establishes that the cause of death of the victim is due to second and third degree burns. The presence of carbon particles in the respiratory/wind pipe is also to be taken into consideration. The victim had also conceived a foetus of three months. Over and above this, it is also worth while to note that the present appellant was not found at the scene of offence when the neighbour Laxmanbhai Bhimsinh Solanki-PW5 Exh. 20 came to her rescue. At that time the victim had specifically told the neighbour Laxmanbhai that her husband had blazed her and run away. In that view of the matter, the absence of the appellant in the morning hours after the incident creates a strong doubt against the appellant. Moreover, the appellant's conduct of not accompanying his wife to the hospital or visiting her at the hospital creates a strong circumstance against the appellant. In that view of the matter, we see a strong case against the present appellant. 14.0 We are in complete agreement with the reasonings adopted and findings arrived at by the Sessions court and, therefore, see no ground to interfere with the order of conviction and sentence recorded by the CR.A/577/2001 17/17 JUDGMENT Sessions Court. The appeal therefore deserves to be dismissed. 15.0 For the foregoing reasons, the appeal is dismissed. The order of conviction and sentence recorded against the appellant is upheld. The Record and Proceedings to be sent back forthwith. (R.P.DHOLAKIA, J.) (K.S. JHAVERI, J.) Divya//