CR.A/627/1998 1/18 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 627 of 1998 For Approval and Signature: HONOURABLE MR.JUSTICE R.P.DHOLAKIA HONOURABLE MR.JUSTICE MD SHAH ========================================================= 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? ========================================================= RAMESHBHAI MAHIJIBHAI JADAV - Appellant(s) Versus STATE OF GUJARAT - Opponent(s) ========================================================= Appearance : MR MR DARJI FOR BA SHIGROHA for Appellant(s) : 1, MR RC KODEKAR, APP for Opponent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE R.P.DHOLAKIA and HONOURABLE MR.JUSTICE MD SHAH Date : 10/05/2007 CAV JUDGMENT (Per : HONOURABLE MR.JUSTICE R.P.DHOLAKIA) 1.This appeal under Sec.374 of the Code of Criminal Procedure ('the Code' for short) has been filed by the appellant-original accused CR.A/627/1998 2/18 JUDGMENT No.1, who, along with original accused Nos.2,3,4,5 and 6 were charged and tried for the offence punishable under Secs.498-A, 302 read with Sec.114 of IP Code and at the end of trial, appellant-original accused No.1 and original accused No.3 were convicted and sentenced to undergo life imprisonment and to pay fine of Rs.250/-, in default, to suffer one month SI for the offence under Sec.302 IPC. They were also sentenced to undergo RI for six months and to pay fine of Rs.500/-, in default, to suffer one month SI for the offence under Sec.498-A of IPC, vide judgment and order dated 20th May, 1998 by the learned Addl. Sessions Judge, Nadiad, in Sessions Case No.51 of 1997. However, original accused Nos.2,4,5 and 6 were acquitted of all the charges levelled against them. 2.It is required to be noted that against the acquittal of original accused Nos.2,4,5 and 6, it appears that the State has not preferred any appeal and, therefore, it becomes final between the parties. 3.The short facts of the prosecution case are that marriage of elder daughter-Sushila of Punambhai Nathabhai, an agriculturist and a resident of Karamsad, Taluka Anand, took place with Rameshbhai Mahijibhai Jadav. After she started staying in her matrimonial home, CR.A/627/1998 3/18 JUDGMENT she often complained of ill-treatment being meted out by her husband and her in-laws. As she could not suffer the same, she used to leave her in-laws' house and stay at her parents' house. Four months prior to the date of incident, due to intervention of some of the relatives because of marriage of her sister-in-law, she was sent to father-in- law's house. Since she was still being ill- treated by all the accused, she again came back to her parents' house. Thereafter on 5- 12-1996, when Rameshbhai, his father Mahijibhai and one brother-in-law came to Punambhai's house, she was sent to her in- law's house on 6-12-1996 after having arrived at a compromise. However, on 8-12-1996, when Punambhai returned home after completing some work at Anand, he found that his wife and son had already left and hence, he went to the bus-stand and came to know from his wife that his daughter was burnt and was admitted in Civil Hospital at Karamsad. Therefore, Punambhai went to Civil Hospital where she found his daughter in an extensive burning condition. She explained that due to quarrel with her husband, she was dragged into the house, given electric shock and thereafter set on fire after pouring kerosene on her by accused No.1,2 and 3. Therefore, a complaint was lodged on the same day before Vidyanagar CR.A/627/1998 4/18 JUDGMENT Police Station and it was registered as C.R.No.0/1996. As the offence alleged against the accused was coming within the jurisdiction of Bhadaran Police Station, same was transferred to Bhadaran Police Station where it has been registered as Bhadaran Police Station I-C.R.No.109 of 1996 for the offence punishable under Sec.498-A, 307 read with 114 of IPC. As victim died during the course of treatment, Sec.302 of IPC was added later on. Upon receipt of the complaint, PSO made endorsement and handed over investigation to PSI, Mr.Jadeja. Mr.Jadeja went to the place of incident, drew panchnama of place of incident in presence of panchas and also recorded statements of various witnesses. He also drew inquest panchnama and made arrangements for the post mortem on the dead body of the deceased. He collected burnt pieces of clothes, plastic can of kerosene, controlled sand, sand having kerosene smell and a nail found at the place of incident and sent all the muddamal to the FSL for analysis. Executive Magistrate was called and dying declaration of the victim was recorded. Upon receipt of FSL and post mortem reports, same were kept in investigation file. At the end of investigation, charge sheet was filed in the Court of learned J.M.F.C., Borsad, against CR.A/627/1998 5/18 JUDGMENT all the accused. As the offences alleged against the accused were exclusively triable by the Court of Sessions, learned Judicial Magistrate (First Class), Borsad, committed the case to the Court of Sessions, Kheda at Nadiad. On receipt of the same, case was numbered as Sessions Case No.51 of 1997 and handed over to Addl. Sessions Judge, Kheda at Nadiad, for disposing of the same on merits. Learned Judge framed charge against the accused at Exh.3. The charge was read over and explained to the accused. The accused pleaded not guilty to the charge and prayed for trial. 4.To prove the guilt against the accused, prosecution examined following witnesses: i)P.W.1, Punambhai Nathabhai Gohel, Exh.13; ii)P.W.2, Vallabhbhai Punambhai, Exh.15; iii)P.W.3, Punjiben Punambhai, Exh.16; iv)P.W.4, Dr.Lalitbhai Kishorbhai Mittal, Exh.22; v)P.W.5, Dr.Krutikaben Ghanshyambhai Gadhvi, Exh.27; vi)P.W.6, Dr.Mehulbhai Babubhai Patel, Exh.33; vii)P.W.7,Yasinmiya Abdulmiya Malek, Executive Magistrate, Exh.37; viii)P.W.8, Dr.Sonalben Ravjibhai Patel, Exh.43; CR.A/627/1998 6/18 JUDGMENT ix)P.W.9, Mahijibhai Becharbhai Makwana, Exh.44; x)P.W.10, Narsinh Kalabhai, Exh.47; xi)P.W.11, Babubhai Karsanji Jadeja, I.O., Exh.49. Prosecution also placed reliance on several documentary evidences such as FIR Exh.14, panchnama of scene of offence Exh.17, inquest panchnama Exh.10, arrest panchnama Exhs.19 and 20, map Exh.21, police yadi Exh.23, P.M.Report Exh.24, cause of death certificate Exh.25, medical case papers Exh.28, yadi to Executive Magistrate Exh.38, dying declaration recorded by Executive Magistrate Exh.45, entry from Station Diary Exh.48, dying declaration by Police Officer Exh.50, FSL report Exh.51 and FSL receipt Exh.52. The defense examined Ranchhodbhai Mohanbhai Parmar as their witness at Exh.58. 5.On submission of closing purshis by the prosecution as well as the defence side, learned Addl. Sessions Judge recorded further statement of the accused under Sec.313 of Cr.P.C. and asked incriminating questions to the accused. Thereafter, after hearing the learned advocates appearing for the respective parties, learned Addl. Sessions Judge delivered the impugned judgment giving rise to prefer the present appeal by the CR.A/627/1998 7/18 JUDGMENT present appellant-original accused No.1. 6.We have heard leaned counsel, Mr.M.R.Darji for Mr.B.A.Shigroha for the appellant, and learned APP, Mr.R.C.Kodekar for the respondent-State. 7.It has been mainly submitted by the learned counsel for the appellant that the judgment and order is contrary to the facts and material on record. According to him, there is a delay in filing the FIR. 8.He has taken us through the evidence of P.W.5, Dr.Krutikaben Ghanshyambhai Gadhvi Exh.27, P.W.4, Dr.Lalitbhai Kishorbhai Mittal Exh.22, P.W.6, Dr.Mehulbhai Babubhai Patel and P.W.7, Yainmiya Abdulmiya Malek, Exh.37 and submitted that the dying declaration of the deceased has been recorded by the Executive Magistrate when she was under the influence of sedatives. She was given injection of 30 ml. at an interval of 8 hours so as to maintain balance of mind. According to him, the deceased was not in a conscious state of mind to record the dying declaration. Not only that, there was no endorsement of the doctor for recording the dying declaration but endorsement was made on yadi sent to the Executive Magistrate. Even if it is believed that there is an endorsement of doctor, no time and date has been mentioned on the endorsement. In view of CR.A/627/1998 8/18 JUDGMENT the above, it is submitted that dying declaration of the deceased recorded by the Executive Magistrate, Yasinmiya Abdulmiya Malek, ought not to have been taken into consideration for basing conviction on the appellant-accused. 9.He has drawn our attention towards the evidence of Yasinmiya Abdulmiya Malek, Executive Magistrate, P.W.7, Exh.37, and submitted that Executive Magistrate could not notice any injury on the face and hair of eye-lashes. He has deposed that eye-brows, head and right hand thumb of the deceased were not burnt. However, column No.17 of the post-mortem note indicates 7% injuries on head and neck with a specific noting that hair of scalp, margin, eyebrow, eye-lashes, arm pit and pubic hair were suffered due to burns and it is supported by inquest panchnama Exh.10. Taking us through the figure drawn by Dr.Ketan produced at Exh.8, it is submitted that palms were burnt and she was not in a position to put her thumb impression and it is supported by column No.17 of the post mortem report Exh.24. It has been deposed by the Executive Magistrate in para 11 of his deposition that thumb of the deceased was not burnt. However, it has been deposed by Mahijibhai Makwana, P.W.9, Exh.44, that while recording statement Exh.41 CR.A/627/1998 9/18 JUDGMENT of the deceased, he had obtained thumb impression of the deceased along with the endorsement of the doctor. Therefore, the endorsements of the doctor on the statement recorded by the police as well as on the dying declaration show that endorsement on the yadi to Executive Magistrate as well as statement Exh.41 are subsequently created and is a concoction. In view of the aforesaid contradictions, it is submitted that the appellant-accused ought to have been acquitted by the court below. 10.Taking us through the evidence of Dr.Mehulbhai Babubhai Patel, P.W.6 Exh.33, it is contended that injury of electric shock depends on the intensity of electric shock and no injury due to electric shock is seen on the body of the deceased which means that the deceased was not subjected to electric shock. However, in column No.15 of the post- mortem note, it is mentioned that there are only burn injuries. Hence, the whole theory put forward by the prosecution is unbelievable. It is further submitted that the deceased had been taken to the hospital by her husband and in-laws and hence, there could not have been any intention on the part of the accused to commit the murder of the deceased. In view of the aforesaid, it is requested that the appellant-accused may be CR.A/627/1998 10/18 JUDGMENT acquitted. 11.Learned APP, Mr.Kodekar, has contended that the prosecution is able to prove the case against the present appellant beyond reasonable doubt. He took us through the relevant evidence regarding four dying declarations and also the evidence of parents of the deceased along with FIR and reasoned judgment and contended that prosecution is able to prove that span of marriage life is one and half years. During that period also, there were physical and mental cruelty from her husband as well as in-laws. It has also been submitted that first she was given electric shock and thereafter, she was burnt by pouring kerosene. The evidence appearing on record against the appellant has been clearly proved by the prosecution beyond reasonable doubt and since they are trustworthy, the impugned judgment does not require any interference. 12.We have gone through the evidence shown to us by the learned counsel for the respective parties. 13.It is required to be noted that the appellant and the deceased were husband and wife respectively. Their marriage took place one and half years prior to the incident. There were physical as well as mental torture to the deceased from the appellant and his CR.A/627/1998 11/18 JUDGMENT family members and hence, time and again, she had to leave the matrimonial home to stay at her parents' house and on each occasion, for better future, she has been sent to her matrimonial home. Lastly, one month prior to the incident, due to physical and mental cruelty, she came to her parental home and on 5-12-1996, the appellant and his brother-in- law came to the parental house of the deceased when they have given assurance that she will not be harassed and will keep her well and, therefore, again she was sent to her matrimonial home on 6-12-1996 and the incident in question has been taken place on 8-12-1996 and she has been taken to the hospital at Karamsad by the appellant i.e. the accused No.1 and his parents. From the evidence of doctors viz., P.W.4, Dr.Lalitbhai Kishorbhai Mittal, Exh.22, P.W.5, Dr.Krutikaben Ghanshyambhai Gadhvi, Exh.27 and P.W.6, Dr.Mehulbhai Babubhai Patel, Exh.33, it is established that the victim was brought to the hospital by the accused No.1 and his parents. In the history given by the accused No.1 to the doctor, it is stated that it is a case of suicide. However, the history Exh.28 given by the victim indicates that it is a homicidal death which took place around 8.30 to 9.00 a.m. on that day and it is proved through case papers Exh.28. CR.A/627/1998 12/18 JUDGMENT 14.It is established from the evidence of other witnesses i.e. father Punambhai Nathabhai Gohel, P.W.1, Exh.13; brother Vallabhbhai Punambhai, P.W.2, Exh.15 and mother Punjiben Punambhai, P.W.3, Exh.16, that they rushed to the hospital immediately after receiving the information from the accused No.1 and his family members. It is also established from their evidence that though the incident took place at 8.30 to 9.00 a.m., they were informed at about 1.30 p.m. and due to the distance between Karamsad and their Village Devrajpura of about 38 kms., they reached at the hospital at about 3.00 p.m. and complaint has been filed thereafter. 15.A contention has been raised by the learned counsel for the appellant that there is a delay in filing the FIR. We have evaluated the evidence on record. It appears that the complainant, i.e. the father of the victim reached the hospital after 3.00 p.m. immediately upon getting the information. Thereafter, he met his daughter at the hospital who was in a very serious condition. She was required best available treatment and hence, she was to be shifted to another hospital which was his prime duty as a father and thereafter at the earliest, he went to the Police Station within 3-4 hours and filed the complaint. Therefore, according to us, CR.A/627/1998 13/18 JUDGMENT there is no delay in filing the FIR and even it is called as a delay, the said delay has been properly and satisfactorily explained by the prosecution. 16.It is required to be noted that the incident in question has taken place within four walls of the matrimonial house of the deceased where except the accused i.e. the appellant- accused No.1 and his parents, others would not be there and, therefore, question of searching any independent witness does not arise at all. Since there are no other witness who can be cited as eye witness, Court has to rely upon other evidence collected by the prosecution during the course of investigation. Here in this case, except the victim, all the other members are from the accused side and there are no eye witness to the incident and, therefore, prosecution has relied upon the dying declarations of the deceased. 17.It is established from the evidence on record that deceased has given four dying declarations. First dying declaration has been given before the doctor by way of history Exh.28 and same has been proved as stated above by way of evidence of Dr.Krutikaben Ghanshyambhai Gadhvi and Dr.Mehulbhai Babubhai Patel, etc. Thereafter, Executive Magistrate has also recorded her CR.A/627/1998 14/18 JUDGMENT dying declaration and same has been proved by way of evidence of Executive Magistrate. Police Officer, who visited the hospital has also recorded her statement and same has been proved at Exh.45. According to the complainant, who is the father of the deceased, victim has narrated the incident before him and it is the oral dying declaration Exh.48. 18.The prosecution has relied upon the above four dying declarations and though the same have been proved through the evidence on record and though same have been discussed and dealt with by the court below from paragraph 18 onwards of the judgment, the Court below has not believed the dying declaration Exh.45 narrated before the Police and oral dying declaration Exh.48 narrated before the father but believed the dying declaration recorded by the Executive Magistrate and dying declaration Exh.28 which is the history given by the deceased before the doctor. The court below has dealt with the same in detail and came to the conclusion that both the dying declarations are trustworthy and free from doubt and while recording the same, Executive Magistrate has taken proper care and caution. Not only that, doctor has given opinion that she is in a fit mental condition to give her dying CR.A/627/1998 15/18 JUDGMENT declaration. 19.As far as dying declaration Exh.28 is concerned, it is by way of history wherein two things have been established. In the history given by the husband of the deceased, it is stated that injury has been due to suicide while in the history given by the victim, it is stated that it is a case of homicide. 20.From the evidence of the three doctors, which we have stated earlier, it has been established that the deceased has been taken to hospital by the appellant-accused No.1 and her in-laws and when dying declaration regarding suicide has been given by the accused No.1 i.e. husband of victim to the doctor, parents and other relatives of the victim were not there. It has been further established from the evidence of above three doctors that at the time of giving history, deceased was conscious. Even at the time of recording her dying declaration by the Executive Magistrate also, she was conscious. Not only that, we have evaluated the evidence on record and it shows that the deceased was conscious except at 8.30 a.m. on 11-12-1996. This means that, as opined by the expert, the deceased was in a fit state of mind to give the dying declarations and, therefore, if dying declarations have been proved and are CR.A/627/1998 16/18 JUDGMENT free from all doubts, the Court can certainly rely upon the same and convict the accused. We have gone through the evidence of three doctors along with the Executive Magistrate and we share the same view that the court below has rightly believed the evidence of above referred witnesses and rightly came to the conclusion that the deceased was conscious at the time of recording her dying declaration Exhs.28 and 48 and merely because history given by her husband states that injury received by the victim was as a result of suicide, it may not shake the evidence of doctors and hence, history of husband of the deceased is required to be discarded. 21.We are therefore of the opinion that the prosecution is able to prove that span of marriage life is one and half years and during that period, victim has been subjected to mental as well as physical cruelty by the appellant and his family members and ultimately she was given electric shock and was thereafter burnt by pouring kerosene on her by the appellant and his mother i.e. accused No.3. Therefore, the court below has held both the accused i.e. the appellant- original accused No.1 as well as the original accused No.3 guilty for having committed the offence. However, after delivering the judgment but before filing of the appeal, the CR.A/627/1998 17/18 JUDGMENT original accused No.3 died and, therefore, the present appeal has been filed by the appellant-original accused No.1 only. 22.The only grievance raised by the learned counsel for the appellant in the court below as well as this Court is that the complainant, father of the deceased, was working as a Clerk with an advocate. On going through the evidence on record, said aspect has not been established by the otherside. Even otherwise also, it is required to be noted that the complainant reached at the scene of offence after 3 O'clock. Prior to that, history has been recorded wherein also, she has narrated the history before the doctor. Not only that, the Court below has also not believed the dying declaration given by the deceased before the complainant and the statement recorded by the Police Officer and, therefore, we are not discussing further into the matter to that effect. However, facts remain that the appellant-accused No.1 is the prime accused, who did not like his wife and wanted to marry again with another woman and, therefore, she has been harassed by him and his family members and ultimately, she has been given electric shock and thereafter set on fire after pouring kerosene. The commission of said offence has been proved by the prosecution beyond CR.A/627/1998 18/18 JUDGMENT reasonable doubt. 23.We are therefore of the opinion that no illegality has been committed by the court below in the impugned judgment and order warranting interference by this Court in the present appeal. Hence, this appeal is required to be dismissed. 24.This appeal is accordingly dismissed. (R.P.DHOLAKIA,J.) (M.D.SHAH,J.) radhan/