CR.A/396/2002 1/18 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 396 of 2002 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 ? ========================================================= TAMILMANI @ TAVMANI SWAMINATHAN - Appellant(s) Versus STATE OF GUJARAT - Opponent(s) ========================================================= Appearance : THROUGH JAIL for Appellant(s) : 1,MS SADHANA SAGAR for Appellant(s) : 1,MS RV ACHARYA for Appellant(s) : 1, MR HL JANI APP for Opponent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE R.P.DHOLAKIA and HONOURABLE MR.JUSTICE KS JHAVERI Date : 08/04/2008 ORAL JUDGMENT CR.A/396/2002 2/18 JUDGMENT (Per : HONOURABLE MR.JUSTICE KS JHAVERI) 1.0 This Appeal is directed against judgment and order dated 28th February 2002 passed by learned Additional Sessions Judge, Jamnagar, in Sessions Case No.22 of 2002, whereby the learned Additional Sessions Judge has convicted the appellant for offence punishable under section 302 of IPC and ordered to undergo life imprisonment and fine of Rs.1000/-, in default, to undergo simple imprisonment for two months. 2.0 The facts in brief, as emerging from the record, are as under; 2.1 Vijayaben was staying with her husband and her son Suresh. Her husband was working in a company. The accused along with his wife was staying in the premises of victim as tenant earlier and the wife of the accused had committed suicide. Thereafter, the accused had gone to Madras and had returned about four months back. The accused was working with a contractor Omnathan and he CR.A/396/2002 3/18 JUDGMENT was a labourer. After coming back from Madras he was staying in another premises. Earlier the accused used to visit the place of the victim and she had love affair with the accused and in absence of her husband the accused used to visit her place. 2.2 For about 10 days before the date of the incident, the husband of the victim had some doubt about the relation between the accused and the victim and therefore he told the accused not to come to their place. The victim therefore told him to forget about their love affair. In spite of that the accused used to go to her house and get angry and was abusing her. The victim was afraid and therefore she did not tell anything about this to her husband. 2.3 On the date of the incident i.e. 12.12.1999 at about 12.30 in the afternoon her husband had gone to the house of Rangnathan and son of victim was taking food. At that time the accused came into the house and closed the door from inside and they were in the open portion of the building. The victim asked him as to why he come at her place in spite of her saying not to come there and asked him CR.A/396/2002 4/18 JUDGMENT to go back or else her husband will come and there will be unnecessary problems. On hearing this the accused got angry and he told her that because of she he has ruined and now she is saying like that and he has to commit suicide and before that he would kill her. By saying so he has taken the “Primus” lying there and poured kerosene over the victim and set her ablaze. Her dress got burning and therefore she went running to water tap and poured some water from the bucket. At that time, the children of Sanabhai Harijan came there and her husband also came back. She was taken in a rickshaw by Kalyani and neighbour Laxmiben to Mithapur Tata Hospital. She was completely burned. She has narrated about this incident and the complaint was filed in presence of social worker, which was registered as C.R. No.I 93 of 1999 with Okha Police Station for the alleged commission of offence under section 307 of IPC. 2.4 The case was handled by P.I. - N. B. Jadeja. Since it was a visitable offence the higher officer was informed and he has gone to the place of incident, prepared panchnama of CR.A/396/2002 5/18 JUDGMENT scene of offence, collected muddamal articles, and arrested the accused. Muddamal articles were sent for FSL examination. He has recorded statements of various witnesses. Subsequently he has received the dying declration and on receiving the information on 17th December 1999 that the victim has succumbed to the injuries he has gone to hospital and prepared inquest panchnama and after filling up the Marnotar form dead body was sent for postmortem. Since Vijayaben has succumbed to the injuries section 302 of IPC was added to the complaint and necessary Yadi was forwarded to JMFC, Dwarka. On receipt of FSL Report, postmortem note, etc. chargesheet was filed before the court of learned Judicial Magistrate, First Class, Dwarka and as the offence was exclusively triable by court of Sessions the case was transferred to the Court of Sessions, Jamnagar and the case was numbered as Sessions Case No.22 of 2000 and the same was transferred to the court of learned Additional Sessions Judge for disposal of the same on merits. As the appellant has pleaded not guilty to the said charge, trial was initiated against him. CR.A/396/2002 6/18 JUDGMENT 3.0 In order to prove the case the prosecution has examined in all 18 witnesses and has produced various documents vide Exhibit – 8. On submission of closing pursis, learned Additional Sessions Judge has delivered the judgment and convicted the appellant-accused as mentioned above which has given rise to the present appeal. 4.0 We have heard Ms Sadhana Sagar, learned Advocate for the appellant and Mr.H.L.Jani, learned APP for respondent State at length and perused the impugned judgement and the documentary evidence on record. 5.0 Ms. Sadhana Sagar, learned Advocate for the appellant submitted that the prosecution has not proved the case against the appellant beyond doubt. 5.1 She submitted that the case of the prosecution is based on dying declaration which is not trustworthy and therefore the appeal requires to be allowed on this ground alone. CR.A/396/2002 7/18 JUDGMENT 5.2 She submitted that the present appellant is wrongly roped in the case and there is no evidence against him and the case is of suicide. 5.3 She submitted that the presence of the appellant is not proved and there are no eye witnesses to the incident and no role is attributed to the appellant. 5.4 She further submitted that the medical evidence suggests that it is because of the improper treatment given to the victim she has died and there was only 30-40 per cent burn injuries and the cause of death is not burn injuries. 5.5 She, therefore, submitted that in these circumstances the benefit of doubt is required to be given to the appellant and at least the sentence should be reduced for the period which he has already undergone. 6.0 Mr. H. L. Jani, learned APP, appearing for the State has vehemently opposed the appeal. He submitted that the victim has first narrated about the incident in the CR.A/396/2002 8/18 JUDGMENT complaint, thereafter before the Executive Magistrate and she has also reiterated the same before the doctor who has treated her. 6.1 The victim has clearly stated the name of the appellant. He submitted that the dying declaration is trustworthy and the conviction can be based solely on the said dying declaration. He submitted that this is a case where the appellant has committed a heinous crime killing a woman who has not agreed for illicit relation with him. 6.2 He, therefore, submitted that the impugned judgment and order is just and proper and no interference is warranted in the appeal. 7.0 The prosecution has examined Dr. Vinod Anatrai Dave (PW-1) who was serving as doctor at Mithapur Hospital. This witness has treated the victim. He has stated that the victim had 50-60% burn injuries and she was treated on 12th December 1999 and on 13th December 1999 she was referred to Irwin Hospital, Jamnagar. He was cross CR.A/396/2002 9/18 JUDGMENT examined in detail and it was tried to establish that because of improper and insufficient medical treatment the victim has succumbed to the injuries. But nothing incriminating has come out from his evidence. 7.1 The prosecution has examined Dr. Pragnesh Shah (PW2-Exh.15) who was doctor at Medical College, Jamnagar. He has performed the postmortem and prepared postmortem note. He has stated that the cause of death is due to burns. As per the postmortem note there is about 55 to 60% burn injuries and the cause of death is infected burns. Thus, from the evidence of this witness it was proved that it was a homicidal death and we are of the view that the prosecution has successfully proved that this is a homicidal death. 7.2 The prosecution has examined Laxmiben (PW-3- Exh.30) who has reached the scene of offence immediately and who has taken the victim to the hospital. This witness has deposed that the accused was inside the house and husband of Victim Vijayaben started beating him, accused ran out and this witness had chased and caught him. She CR.A/396/2002 10/18 JUDGMENT has also stated that the accused has tried to compel Vijayabn to keep illegal relation with him and as she did not agree, the accused had poured kerosene and set her ablaze. She has been cross-examined, but nothing incriminating has come out in the cross examination. 7.3 Godhad Rana (PW4) was examined by the prosecution at Exh.43. He had also reached the scene of offence and had tried to catch hold of the accused and he has fully corroborated the evidence of Laxmiben (PW-3 Exh.30). 7.4 Manjulaben Prabhudas Bhayani (PW5) was examined at Exh.33. She was serving as Mamlatdar and executive Magistrate at Dwarka. On receipt of Yadi for recording dying declaration, she had gone to Tata Hospital, Mithapur. She has inquired from the doctor whether Vijayaben was in fit condition to give dying declaration and the doctor had stated that she was in fit condition. Thereafter dying declaration was recorded wherein the victim has stated that the accused had poured kerosene over her and set her ablaze. She has proved the Yadi issued CR.A/396/2002 11/18 JUDGMENT by the doctor stating that the victim was in fit condition to give dying declaration. 7.5 Gulshan Dhavardas (PW6) was examined at Exh.36. He has taken the accused, husband of victim and Laxmiben to the police station. His evidence clearly corroborated the evidence of Laxmiben (PW3). Likewise Haribhai Ladhabhai Ghadvi (PW7-Exh37) has also proved that she has taken Vijayaben to the hospital. 7.6 Selmuth Charsan (PW8-Exh.40) was examined by the prosecution. He is husband of the victim and he has fully supported the evidence of all other witnesses. 7.7 Zarinaben Ibrahimbhai Blaze (PW14) was examined at Exh.54. She was a social worker. She deposed that she was called at Mithapur Hospital and in her presence Vijayaben had given the complaint. After recording the complaint the same was read over to Vijayaben and Vijayaben had put her thumb impression. She has proved the complaint. She has stated that when the complaint was recorded Vijayaben was in fit mental condition. CR.A/396/2002 12/18 JUDGMENT 8.0 Thus, looking to the overall evidence on record, it is evident that the death of Vijayaben was a homicidal death. The evidence of Dr. Vinod (PW1) clearly states that she suffered 55 to 60 per cent burn injuries. Evidence of Dr. Pragnesh Shah (PW2) also fully supports the evidence of Dr. Vinod and the postmortem report shows that the cause of death is due to burn injuries. Therefore, it is a clear case of homicidal death and there is nothing on record to take a different view of the matter. The medical evidence clearly support the homicidal death and FSL report also support the prosecution case. 8.1 The prosecution has also proved that the appellant has poured kerosene over the victim. He was caught at the place of incident and in fact he was in the house. Looking to the FSL report and medical evidence it was proved that the appellant has poured kerosene over the victim, lighted match stick and set her ablzed. The presence of the appellant is proved inasmuch as he was arrested at the place of incident. Since the appellant was arrested from the scene of offence, it is proved that he has committed the CR.A/396/2002 13/18 JUDGMENT alleged offence. The evidence of rickshaw driver who has taken him to the police station has also supported the prosecution case. 8.2 It is also required to be noted that at the earliest opportunity the name of the accused is disclosed. First in the complaint the accused was named and stated that the accused had poured kerosene and set her ablaze. The history was repeated before the doctor who treated the victim. Thereafter in the dying declaration also same details were given. Thus, in the complaint, in the history before the doctor and in the dying declaration same facts are stated and there are no contradictions in these pieces of evidence. 8.3 The presence of the accused-appellant is proved beyond doubt. The accused was inside the house of the victim and when he was trying to escape he was caught hold of and took to the police station. The evidence of Laxmiben (PW3) and evidence of Gulshan (PW6), the rickshaw driver fully support the same and therefore his presence at the scene of offence is proved beyond doubt. CR.A/396/2002 14/18 JUDGMENT 9.0 In the case of Vikas & Others Vs. State of Maharashtra, reported in 2008(1) Supreme 433, the Apex Court has extensively dealt with the question of admissibility of dying declaration. In paragraph 36 the Apex Court held as under: 36. The Court, referring to earlier case law, summed up principles governing dying declaration as under: [i] There is neither rule of law nor of prudence that dying declaration cannot be acted upon without corroboration. [ii] If the Court is satisfied that the dying declaration is true and voluntary it can base conviction on it, without corroboration. [ii] Tis Court has to scrutinise the dying declaration carefully and must ensure that the declaration is not the result of tutoring, prompting or imagination. The deceased had opportunity to observe and identify the assailants and was in a fit state to make the declaration. [iv] Where dying declaration is suspicious it should not be acted upon without corroborative evidence. [v] Where the deceased was unconscious and could never make any dyign declaration the evidence with regard to it is to be rejected. CR.A/396/2002 15/18 JUDGMENT [vi] A dying declaration which suffers from infirmity cannot form the basis of conviction. [vii] Merely because a dying declaration does not contain the details as to the occurrence, it is not to be rejected. [viii] Equally, merely because it is a brief statement, it is not to be discarded. On the contrary, the shortness of the statement itself guarantees truth. [ix] Normally the court in Order to satisfy whether deceased was in a fit mental condition to make the dying declaration look up to the medical opinion. But were the eye witness has said that the deceased was in a fit and conscious state to make this dying declaration, the medical opinion cannot prevail. [x] Where the prosecution version differs from the version as given in the dying declaration, the said declaration cannot be acted upon. It is further held in the aforesaid decision that where a dying declaration is recorded by a competent Magistrate, it would stand on a 'much higher footing' and the rule requiring corroboration is merely a rule of prudence. 9.1 The dying declaration was recorded by the Executive Magistrate (PW5). Before recording the dying CR.A/396/2002 16/18 JUDGMENT declaration this witness has ascertained from the doctor whether the victim was in a fit condition to give dying declaration and the doctor stated that she was in a fit mental condition to give dying declaration. Thereafter he has proceeded to record the same. The victim has clearly stated that the accused has poured kerosene over her, took out a match stick and set her ablaze. The victim told that she was taken to the hospital by her nighbour Laxmiben. The dying declaration was thereafter read out to the victim and she has put her thumb impression. The dying declaration was proved both by the Executive Magistrate and the doctor who was present at the time of recording dying declaration. Zarinaben (PW14), who is a social worker, was also present when the complaint was recorded and she has also proved the same in her deposition. Therefore, we are of the opinion the dying declaration is trustworthy and the learned Sessions Judge was fully justified in basing the conviction on the same. 10.0 This Court has carefully scrutinized the dying declaration and we are of the opinion that the declaration is CR.A/396/2002 17/18 JUDGMENT not the result of tutoring, prompting or imagination. We also find that the dying declaration is short and to the point and we are completely satisfied that the victim was in a fit mental condition to make the dying declaration which is certified by the medical officer. We are further of the opinion that the dying declaration is true and voluntary and it can base conviction on it, without any corroboration. Therefore the dying declaration is completely trustworthy and cannot be discarded on any ground. 11.0 In view of the fact that the case against the appellant has been proved by the prosecution beyond reasonable doubt, we do not find that any illegality or irregularity has been committed by the learned Sessions Judge warranting interference by this Court in the impugned judgement and order of conviction and sentence. We are in complete agreement with the findings arrived at by the learned Sessions Judge and therefore, the present appeal requires to be dismissed. 12.0 For the foregoing reasons, the Appeal is CR.A/396/2002 18/18 JUDGMENT dismissed. Office is directed to send the records & proceedings to the trial Court concerned forthwith. [R. P. DHOLAKIA, J.] [K. S. JHAVERI, J.] Ravindran / Pravin/*