CR.A/45819/1999 1/17 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 458 of 1999 For Approval and Signature: HONOURABLE MR.JUSTICE C.K.BUCH AND HONOURABLE MR.JUSTICE H.B.ANTANI ================================================= ====================== 1 Whether Reporters of Local Papers may be allowed to see the judgment? NO 2 To be referred to the Reporter or not? NO 3 Whether Their Lordships wish to see the fair copy of the judgment? NO 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? NO 5 Whether it is to be circulated to the Civil Judge? NO ================================================= ====================== KANTABEN JAYANTILAL BHUT - Appellant Versus STATE OF GUJARAT – Respondent ================================================= =Appearance : MR KB ANANDJIWALA for the Appellant. MS DARSHANA PANDIT, ADDITIONAL PUBLIC PROSECUTOR for the Respondent. ================================================= = CORAM : HONOURABLE MR.JUSTICE C.K.BUCH and HONOURABLE MR.JUSTICE H.B.ANTANI Date : 26/09/2008 ORAL JUDGMENT CR.A/45819/1999 2/17 JUDGMENT (Per : HONOURABLE MR.JUSTICE H.B.ANTANI) 1. This appeal preferred under Section 374 (2) of the Code of Criminal Procedure, 1973 (“the Code”, for short) is directed against the judgment and order dated 20-04-1999 by which the learned Additional Sessions Judge, Junagadh, convicted the appellant under Sections 302 and 450 of the Indian Penal Code (“IPC”, for short) and sentenced to suffer RI for life under Section 302 and fine of Rs. 1000/- (Rupees One Thousand), in default SI for 15 days. However, no separate sentence was imposed under Section 450 of IPC. 2. The facts emerging from the record of the case are stated as under:- The incident took place on 13-09-1987 at about 7 O'clock. During the above mentioned period, the accused committed trespass in the house of the deceased Vajiben – wife of Vasiram Shamjibhai with the intention of killing her. The deceased, who was preparing the food on the stove, was set ablaze by the appellant – accused and thereby the appellant has committed the offences punishable under Sections 302 and 415 of IPC. CR.A/45819/1999 3/17 JUDGMENT The complaint was given by Vajiben on 12-10-1998 to the Police Sub-Inspector, Junagadh City wherein she has narrated the gruesome incident in which an attempt was made by the accused to set her on fire. On the strength of the complaint given by Vajiben, the investigation was set in motion. The Investigating Officer visited the place where the incident had taken place and prepared the panchnama on 15- 09-1998 in the presence of panch-witnesses. The deceased was admitted in the hospital and thereafter, the Executive Magistrate was called to record the dying declaration. After the death of the deceased, the dead body was sent for post- mortem to the Civil Hospital, Junagadh. The clothes put on by the deceased were seized and the muddamal articles recovered during the panchnama was sent to FSL for the purpose of detailed analysis. The statement of the witnesses were recorded by the Investigating Officer during the investigation. On receipt of the muddamal from the FSL and other material in the case, the appellant was charge-sheeted in the Court of learned Metropolitan Magistrate at Ahmedabad, who in turn committed the case to the Sessions Court, as the matter has been exclusively triable by the Sessions Court. The charge was framed against the accused for the offences punishable under Sections 302 and 450 of IPC vide Exh. 1 and CR.A/45819/1999 4/17 JUDGMENT the accused pleaded not guilty to the charge levelled against her vide Exh. 2. Thereafter, the matter was set down for full- fledged trial before the learned Sessions Judge. 3. The prosecution examined the following witnesses in order to bring home the guilt against the appellant: (i) PW-1 Parshottam Bhanjibhai Satwara at Exh. 11. (ii) PW-2 Ravjibhai Vrijlalbhai at Exh. 12. (iii) PW-3 Diwaliben Muljibhai Devrajbhai at Exh. 13. (iv) PW-4 Suresh @ Kala Premjibhai Patel at Exh. 14. (v) PW-5 Pratapgar Kanchangar Bavaji at Exh. 15. (vi) PW-6 Mukesh Devjibhai Satwara at Exh. 16. (vii) PW-7 Circle Officer Mulubhai Lakhansibhai at Exh. 17. (viii) PW-8 Jivtiben Ratangar Hiragar at Exh. 20. (ix) Panch-witness PW-9 Arif Fatuji Nagori at Exh. 21. (x) Panch-witness PW-10 Parshottam Devendas Singhi at Exh. 23. (xi) PW-11 Executive Magistrate Dilsukhrai Jethalal Bhatt at Exh. 24. (xii) PW-12 Dr. Jyotindrakumar Hasmukhlal Bhatt at Exh. 29. (xiii) PW-13 Jayantilal Labhshankar Bhatt at Exh. 31. (xiv) PW-14 PSO Ranmalbhai Merubhai at Exh. 33. (xv) PW-15 Dr. Balchandra Narmadashankar Joshi at Exh. 37. (xvi) PW-16 PSO Raghuvirsinh Surubha Chudasama at Exh. 43. (xvii) PW-17 Dr. Madhukar Chatrabhuj Parekh at Exh. 46. 4. The prosecution has placed reliance on the following documentary evidence: (i) Complaint given by Vajiben wife of Vashrambhai Shamjibhai vide Exh. 32. (ii) Panchanama of the place of the incident vide Exh. CR.A/45819/1999 5/17 JUDGMENT 22. (iii) Inquest panchnama vide Exh. 7. (iv) Panchanama of the clothes put on by the deceased vide Exh. 8. (v) Letter written to the Executive Magistrate by PSO Junagadh for the purpose of recording dying declaration of Vajiben vide Exh. 10. (vi) Map of the place where the incident took place vide Exh. 19. (vii) Dying Declaration recorded on 12-10-1998 vide Exh. 25. (viii) Dying Declaration recorded on 12-10-1998 vide Exh. 26. (ix) PM note vide Exh. 30. (x) FIR vide Exh. 34. (xi) Letter written to the in-charge officer of the Burns Ward regarding the consciousness of the deceased vide Exh. 38. (xii) Letter written by the Police Constable, Junagadh City to the On Duty Medical Officer, Junagadh vide Exh. 45. 5. At the conclusion of the trial, the learned Additional District Judge narrated the incriminating evidence to the appellant and the appellant was given opportunity to explain by recording her statement under Section 313 of the Code of Criminal Procedure. The appellant contended that a false case has been foisted on her and she was falsely implicated in the commission of offences under Sections 302 and 450 IPC. 6. On appreciation of the evidence adduced, the learned Additional Sessions Judge held that the incident in question took place on 13-09-1987 between 7 O'clock in the CR.A/45819/1999 6/17 JUDGMENT evening and 10 O'clock at night. The appellant, without the authority and permission of the deceased, committed trespass in her house with an intention to kill her as the deceased was preparing food on the stove. The accused poured kerosene on her body and set her ablaze. The learned Judge held that on the basis of the dying declaration and the complaint given by the deceased vide Exh. 32, the prosecution has established the involvement of the appellant in the commission of offences. The dying declaration which was also given by the deceased in the hospital when she was fully conscious supports the prosecution story about the involvement of the appellant in the commission of offence. The dying declaration is produced vide Exh. 26 to the compilation of the papers and thus, the prosecution has established the involvement of the appellant in the commission of offences. The learned Additional Sessions Judge discussed in detail the oral deposition adduced by PW-1 Parshottam Bhanjibhai Satwara at Exh. 11 along with the deposition adduced by PW-2 Ravjibhai Vrajlalbhai at Exh. 12, PW-3 Diwaliben Muljibhai Devrajbhai at Exh. 13, PW-4 Suresh @ Kala Premjibhai Patel at Exh. 14 and PW-5 Pratapgar Kanchangar Bavaji at Exh. 15 and held that the appellant went to the house of the deceased with an intention to kill her and after entering the house in an illegal manner poured kerosene CR.A/45819/1999 7/17 JUDGMENT on the body of the deceased and set her ablaze. The learned Judge discussed the place of incident along with the map produced at Exh. 19 and held that the prosecution has established the exact place where the incident in question took place and the manner in which the deceased was done to death. The learned Judge further considered the panchanama of the place of incident, the panchnama of the clothes put on by the deceased and the inquest panchanama and held that the documentary evidence also supports the prosecution story with regard to the assault committed by the appellant on the deceased which ultimately resulted in her death. The post- mortem report at Exh. 30 makes it clear that the death of the deceased was caused due to shock as a result of extensive burns sustained by her. Thus, the learned Additional Sessions Judge, after considering the entire gamut of oral deposition as well as documentary evidence held that the prosecution has by adducing cogent evidence established the involvement of the appellant in the commission of offence. The appellant entered the house of the deceased with an intention to kill her and after reaching the house of the deceased, the appellant poured kerosene on her and set her ablaze and on the basis of aforesaid evidence, the learned Judge imposed sentence of RI under Section 302 of IPC and imposed fine of Rs. 1000/- CR.A/45819/1999 8/17 JUDGMENT (Rupees One Thousand Only), in default further SI of 15 days. However, no separate sentence was imposed by the learned Judge under Section 450 of the IPC. 7. Learned Advocate Mr. K. B. Anandjiwala submitted that the prosecution has not established the entire link connecting the accused with the commission of offences and as there are many chinks in the armour of the prosecution case, the benefit of doubt is required to be given to the appellant. The learned Advocate placed reliance on the dying declaration produced vide Exh. 25 and submitted that the dying declaration was recorded on 12-01-1998 and as the deceased was not in a position to give reply to the questions put to her, the dying declaration could not be recorded. The second dying declaration was recorded on 12-10-1998 wherein she has narrated as to in what manner the appellant had poured kerosene on her body and set her ablaze. However, on considering the dying declaration at Exh. 26 along with the complaint given by the deceased vide Exh. 32, it becomes clear that there are material contradictions in the dying declaration as well as the complaint which was subsequently considered as dying declaration vide Exh. 32. In the dying declaration vide Exh. 26, she has narrated the incident and the CR.A/45819/1999 9/17 JUDGMENT manner in which kerosene was poured on her body. However, it has not been mentioned in the dying declaration that the appellant set her on fire. While in the complaint produced at Exh. 32, she has narrated different story wherein she has stated as to in what manner kerosene was poured on her body and thereafter she was set on fire by the appellant. The contradiction is of a glaring nature and the benefit of the same is required to be given to the appellant. The learned Advocate placed reliance on the deposition adduced by PW-3 Diwaliben and submitted that Diwaliben has been examined at Exh. 13. However, even though she had not supported the prosecution story about the involvement of the appellant in the commission of offence, she was not treated as hostile witness. On careful perusal of the deposition adduced by PW-3 Diwaliben, it becomes clear that the appellant, at the material point of time, was washing the clothes in her house and she never went to the place of the deceased with the intention to kill her. The learned Advocate placed reliance on the deposition adduced by PW-1 Parshottam Bhanjibhai Satwara at Exh. 11 and PW-2 Ravjibhai Vrajlalbhai at Exh. 12 and submitted that the deposition of both the witnesses does not indicate the involvement of the appellant in the commission of offences while on perusal of the deposition adduced by PW-5 Pratapgar CR.A/45819/1999 10/17 JUDGMENT Kanchangar Bavaji at Exh. 15, nothing turns out from his deposition to indicate the involvement of the appellant in the commission of offences. The prosecution has placed heavy reliance on the panchnama of the place of incident, the panchnama of the clothes put on by the deceased and the inquest panchnama but the documentary evidence cannot be read in isolation and as the witnesses do not support the prosecution case indicating the involvement of the appellant in the commission of offences, the appellant is required to be exonerated for the offences punishable under Section 302 read with Section 450 of IPC. The deposition adduced by Executive Magistrate Dilsukhrai Jethalal Bhatt vide Exh. 24 makes it clear that the incident in question took place on 13-09-1987. When he started recording the dying declaration of the deceased, she was fully conscious. The incident took place when the deceased was preparing food on the stove. The appellant went to the house of the deceased and poured kerosene on her body and thereafter when she lit the stove, she was engulfed in the fire and sustained serious injuries. The deposition adduced by Executive Magistrate Dilsukrai Jethalal Bhatt is not in consonance with the complaint given by the deceased vide Exh. 32 and, therefore, considering the contradiction in the deposition adduced by Dilsukrai Jethalal Bhatt and the CR.A/45819/1999 11/17 JUDGMENT complaint given by the deceased, the prosecution has not established the link connecting the appellant with the commission of crime and, therefore, the benefit of doubt is required to be given to the appellant. The learned Advocate submitted that even the post-mortem report at Exh. 30 makes it clear that the prosecution has miserably failed to establish the involvement of the appellant in the commission of crime. Thus, the learned Advocate submitted that considering the oral deposition adduced by the prosecution and the documentary evidence, the prosecution has failed to establish the involvement of the appellant in the commission of offences punishable under Sections 302 read with 450 of IPC and as the entire link connecting the appellant with the commission of crime is not established beyond reasonable doubt, the appellant requires to be exonerated for the offences punishable under Sections 302 read with 450 of IPC. 8. Learned Additional Public Prosecutor Ms. Darshana Pandit representing the respondent-State submitted that on perusal of the dying declaration at Exh. 32, it becomes clear that the appellant went to the house of the deceased on 13-09- 1987 and when the deceased was preparing food, poured kerosene on her body and set her ablaze. The learned CR.A/45819/1999 12/17 JUDGMENT Additional Public Prosecutor submitted that the earlier dying declaration which was recorded on 12-01-1998 by the Executive Magistrate was recorded when the patient was not conscious. Thereafter, the Doctor sent the note to the Executive Magistrate when the deceased regained consciousness. After regaining full consciousness, the dying declaration was recorded by the Executive Magistrate wherein the deceased had narrated the story about the involvement of the appellant in the commission of offences. There is no reason to disbelieve or discard the dying declaration at Exh. 26 and the same cannot be said to be given under coercion or by putting her under threat. The dying declaration can as well be considered as voluntary and trustworthy and as the same inspires confidence of the Court, the appellant can be convicted solely on the basis of the dying declaration given by the deceased and no corroboration is required to establish the involvement of the appellant in the commission of offences. However, the learned Additional Public Prosecutor submitted that even on perusal of the oral deposition of the prosecution case, there is ample corroboration to indicate the involvement of the appellant in the commission of offence and the documentary evidence i.e. the panchnama of the place of the incident, the panchnama of the clothes put on by the deceased CR.A/45819/1999 13/17 JUDGMENT and the inquest panchanama further corroborates the link connecting the appellant with the commission of crime. The post-mortem report produced vide Exh. 30 mentions about death due to shock as a result of the extensive burn injuries sustained by the deceased. The Investigating Officer PW-13 Jayantilal Labshankar Bhatt at Exh. 31 has deposed in his testimony as to in what manner the entire procedure was followed on the basis of the complaint given by Vajiben. Thus, the learned Additional Public Prosecutor submitted that on perusal of the oral deposition and the documentary evidence produced by the prosecution, the prosecution has established each and every link connecting the appellant with the commission of crime. When the entire link is established by adducing cogent, convincing and conclusive evidence by the prosecution, the appeal preferred by the appellant does not call for any interference and it is liable to be dismissed. 9. On appreciation of the entire evidence on record of the case and on perusal of the oral deposition and the documentary evidence relied on by the prosecution, the incident in question took place on 13-09-1987 between 7 PM and 10 PM. The appellant went to the house of the deceased Vajiben by committing trespass in her house and with a view to CR.A/45819/1999 14/17 JUDGMENT kill her. After entering the house in an unauthorized manner, she poured kerosene on the body of the deceased Vajiben when she was preparing food on the stove and after pouring the deceased with kerosene, she set her on fire. I have perused the deposition adduced by the prosecution. Heavy reliance is placed on the deposition adduced by PW-1 Parshottambhai Bhanjibhai Satwara at Exh. 11 wherein he has narrated the place where the incident in question took place and how he made an effort to douse the fire. PW-2 Ravjibhai Vrijbhai examined vide Exh. 12 mentions about the incident which took place at the house of the deceased and subsequently as per his say, the deceased succumbed to the injuries in the hospital. PW-3 Diwaliben Muljibhai Devrajbhai is examined vide Exh. 13. On perusal of the deposition adduced by Diwaliben, she does not support the prosecution story about the involvement of the appellant in the commission of offences. In the cross-examination, Diwaliben had deposed that on the date of the incident, the appellant was washing the clothes in her house and, therefore, the prosecution story does not get necessary support it deserves to indicate the involvement of the appellant in the commission of offences. While on perusal of the deposition of PW-4 Suresh @ Kala Premjibhai Patel at Exh. 14, nothing turns out from his CR.A/45819/1999 15/17 JUDGMENT deposition so as to indicate the involvement of the appellant in the commission of offences. While PW-5 at Exh. 15 has deposed in his testimony that the incident in question took place on 13-09-1987 and he had seen the deceased Vajiben while she was taken to the hospital for treatment before sustaining severe burn injuries. PW-6 Mukeshbhai Devjibhai Satwara at Exh. 16 has turned hostile and not supported the prosecution story. PW-7 Mulubhai Lakhansibhai who has deposed vide Exh. 17 is the Circle Officer who had prepared the map of the place of incident. PW-8 Jivtiben Ratangar Hiragar at Exh. 20 has deposed in her testimony that she was informed by her son about the incident and when she went to the hospital, her sister-in-law was fully conscious and her statement was recorded. She has narrated in her deposition that Godavariben was present in the hospital. The panch- witnesses are also examined by the prosecution but nothing turns out from the deposition of the panch-witnesses. I have also perused the deposition adduced by PW-13 Investigating Officer Jayantilal Labshankar Bhatt at Exh. 31. On perusal of his deposition, he has clearly stated as to the manner in which the incident took place on 13-09-1987 and how the incident was narrated in the complaint given by Vajiben. He had recorded the statement of the witnesses from the CR.A/45819/1999 16/17 JUDGMENT neighbourhood and prepared the panchnama in the presence of the panch-witnesses. I have also perused the FIR produced at Exh. 34. I have further perused the deposition given by Executive Magistrate PW-11 Dilsukhrai Jethalal Bhatt at Exh. 24. He has deposed in his testimony as to how he was called by the doctor to record the dying declaration of the deceased. When he reached the hospital, the patient was conscious and the dying declaration was recorded in the question and answer form. He has further stated in the deposition that the appellant entered the house of the deceased without her permission and authority and as she was preparing food on the stove, kerosene was poured on her and she was set ablaze. However, the oral deposition, if perused in proper perspective along with the documentary evidence, the complaint given by the complainant – Vajiben vide Exh. 32, the dying declarations at Exh. 25 and 26, the panchnama of the place of the incident, the panchnama of the clothes put on by the deceased, the inquest panchnama as well as the PM report produced at Exh. 30, indicates that there are many contradictions in the deposition adduced by the prosecution witnesses and the documentary evidence on which heavy reliance is placed by the prosecution. Even the dying declaration which is produced vide Exhs. 25 and 26 and 32 bristles with contradiction and the CR.A/45819/1999 17/17 JUDGMENT same does not inspire the confidence of the Court. In view of the aforesaid facts and circumstances of the case, when the prosecution has miserably failed to established each and every link connecting the appellant with the commission of offences under Sections 302 and 450 IPC, it would be hazardous in our view to convict the appellant with the commission of crime. 10. For the foregoing reasons, the appeal succeeds. The judgment and order dated 20th April, 1999 passed by the learned Additional Sessions Judge, Junagadh District in Sessions Case No. 122 of 1987 convicting the appellant for the offence punishable under Section 302 of the Indian Penal Code and imposing sentence of RI for life and fine of Rs. 1,000/- (Rupees One Thousand Only), in default SI for 15 days, is hereby quashed and set aside. As the appellant is on bail, her bail bond shall stand cancelled. Muddamal be destroyed in terms of the order passed by the learned Judge after the appeal period is over. [C. K. BUCH, J.] [H. B. ANTANI, J.] /shamnath