CR.A/4920/2002 1/9 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 49 of 2002 For Approval and Signature: HONOURABLE MR.JUSTICE BHAGWATI PRASAD HONOURABLE MR.JUSTICE BANKIM.N.MEHTA ========================================================= 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. ========================================================= RAJU @ RAJESH @ RAJARAM VALDASBHAI HARIYANI - Appellant(s) Versus STATE OF GUJARAT - Opponent(s) ========================================================= Appearance : MR MJ BUDDHBHATTI for Appellant(s) : 1, MS. MITA PANCHAL APP for Respondent - State ========================================================= CORAM : HONOURABLE MR.JUSTICE BHAGWATI PRASAD and HONOURABLE MR.JUSTICE BANKIM.N.MEHTA Date : 26/11/2008 ORAL JUDGMENT CR.A/4920/2002 2/9 JUDGMENT (Per : HONOURABLE MR.JUSTICE BANKIM.N.MEHTA) 1. The appellant – convict has filed the present appeal under Section 374 (2) of the Code of Criminal Procedure, 1973 and challenged the judgment and order of conviction and sentence passed on 12-5-2000 by Addl. Sessions Judge, Rajkot in Sessions Case No.168 of 2000 for the offences punishable u/s 302 of the I.P. Code and sentencing him to undergo imprisonment for life and to pay fine of Rs.2000/- i/d to undergo R.I. for three years. 2. In brief the prosecution case was that Rasilaben was married to accused Raju @ Rajesh @ Rajaram and they had son Chirag aged about 4 years and daughter Neha aged about 2 years out of the marriage. On 8-8- 2000 at about 8-30 p.m. accused Raju closed the door of 'deli' and picked up quarrel with Rasilaben that she had illicit relations and poured kerosene and set her on fire. On account of burning, as Rasilaben raised shouts, neighbours and co-accused Tulasidas came at the place of incident and took Rasilaben to hospital where she succumbed to her injuries. 3. On the basis of the complaint lodged by Rasilaben, investigation was started. At the end of investigation charge sheet was filed against the accused for the offence punishable u/ss 302-114-201 of the I.P. Code. As the case was triable by Sessions Court, the case was committed to Sessions Court, CR.A/4920/2002 3/9 JUDGMENT Rajkot and it was registered as Sessions Case No. 168 of 2000. Learned trial Judge framed charge Exh. 1 against accused for the aforesaid offences. The accused pleaded not guilty to the charge and claimed to be tried and therefore the prosecution adduced evidence. 4. On completion of recording of evidence, the learned trial Judge explained to the accused the incriminating circumstances appearing against them in the evidence. The accused in their further statement recorded u/s 313 of the Criminal Procedure Code, 1973 stated that they are innocent and false case is foisted upon them. 5. The learned trial Judge after appreciating the evidence led by the prosecution and relying on the evidence found the charge against accused Raju @ Rajesh @ Rajaram as proved and convicted him for the offence punishable u/s 302 of the I.P. Code and imposed the sentence as stated above but acquitted him for the offence punishable u/s 201-114 of the I.P. Code. Being aggrieved by the said decision, the appellant – convict has preferred this appeal. 6. We have heard Mr. M.J. Budhbhatti learned advocate for the appellant and Ms. Mita Panchal, learned Addl. Public Prosecutor for the respondent - State at length and in great detail. We have perused the impugned judgment and record and proceedings of the trial court. CR.A/4920/2002 4/9 JUDGMENT 7. Learned advocate Mr. Budhbhatti for the appellant submitted that except dying declaration, there is no other evidence to connect the appellant with the offence. The witnesses have in their deposition stated that the deceased was not able to speak and therefore her dying declaration raises suspicion. He also submitted that in her history, recorded by the doctor, the deceased has stated that she sustained burn injuries while cooking but subsequently she changed her version in the First Information Report. Therefore, the prosecution case does not inspire confidence. Hence, the learned trial Judge committed error in relying upon such evidence to convict the appellant. Therefore, the appeal deserves to be allowed. 8. Learned A.P.P. Ms. Panchal submitted that the dying declarations are consistent and the deceased has explained as to under what circumstances history in the case papers was recorded. There is nothing to indicate that the deceased was not in fit state of mind to give declaration. Though the witnesses have stated that the deceased was not able to speak, the evidence of the Executive Magistrate clearly indicates that the deceased was in fit state of mind to give her statement and therefore the learned trial Judge was justified in relying upon the evidence and no interference is called for. 9. P.W. 1 Vasantdas, P.W. 2 Sangrambhai and P.W. 3 CR.A/4920/2002 5/9 JUDGMENT Babubhai have stated that they were sitting on the 'otala' of P.W. 1 and on hearing shouts they pushed open the house of Rasilaben and saw that Rasilaben was burning. According to them, the incident occurred in 'deli' i.e. in front of the house. P.W. 1 and P.W. 2 have also stated that accused Raju was extinguishing the fire. This clearly indicates that the incident occurred within four corners of the house and accused Raju @ Rajesh was also present there. The accused has not explained this incriminating circumstances. Therefore, it becomes clear that accused Raju was present when the incident occurred. Hence, the only question required to be determined, is whether it was an accidental fire or accused Raju was involved in the incident. According to the defence, Rasilaben sustained burn injuries while cooking. The defence has relied upon the history recorded in the case papers Exh.15 and Exh. 16. 10. The prosecution examined P.W. 7 Dr. Rajendra Shantilal Exh. 36. According to the doctor, when Rasilaben was brought to hospital for treatment, she was conscious. Case paper Exh. 16 indicates that Rasilaben was brought by co-accused Tulasibhai and history was given that Rasilaben sustained accidental burn injuries while cooking. Thereafter Rasilaben lodged the First Information Report Exh. 43 implicating accused – Raju @ Rajesh @ Rajaram. It indicates that accused Raju @ Rajesh @ Rajaram closed the door of 'deli' i.e. front part of the CR.A/4920/2002 6/9 JUDGMENT house and poured kerosene and set her on fire. She has also explained that accused Tulasidas, the elder brother of accused Raju @ Rajesh @ Rajaram brought her to hospital and instructed her to give history of burn injuries while cooking, and therefore, such history was given to the doctor. It appears that as Rasilaben was brought to the hospital by the elder brother of the accused, she was pressurised not to give true history of injuries. Therefore, the first information report given to the police appears to be real cause of burn injuries to Rasilaben. 11. After admission of Rasilaben in the hospital, her dying declaration came to be recorded by the Executive Magistrate, P.W. 6 Vinodray Amarabhai Dangar, at Exh. 33. According to the witness, he ascertained from the Doctor that patient Rasilaben was in a fit state of mind to give dying declaration and then recorded dying declaration Exh. 35 and obtained endorsement of the doctor on it. It appears from the dying declaration that the declarant stated that when she was brought to the hospital, she was asked to give history that she sustained burn injuries while cooking. But, in fact, she was set on fire by accused Raju @ Rajesh @ Rajaram by pouring kerosene. The dying declaration bears endorsement of the doctor that the declarant was fully conscious and in fit state of mind during recording of the dying declaration. 'Yadi' Exh. 34 sent to the Executive Magistrate to record dying CR.A/4920/2002 7/9 JUDGMENT declaration also bears endorsement of the doctor that the patient was fully conscious to give dying declaration. In view of this, it appears that Rasilaben could not give true history of her injuries to the Doctor under pressure but thereafter gave true account of burn injuries while lodging the first information report and recording of dying declaration by the Executive Magistrate. In both the statements, she has stated that she was compelled to give history of accidental burns at the time of admission in the hospital. Therefore, in our considered view, the learned trial Judge was justified in discarding the history given at the time of admission in the hospital and in relying upon the dying declarations in the form of F.I.R. and dying declaration recorded by the Executive Magistrate. 12. Panchnama with regard to scene of offence Exh. 41 indicates that the incident occurred in front of the house i.e. 'Deli'. It also indicates that there was kitchen with cooking stove below the stair case at other place in the house. As the incident has not occurred in the kitchen it is difficult to believe that Rasilaben sustained burn injuries while cooking. Hence, the learned trial Judge was justified in discarding the evidence of case papers Exh. 15 and 16. 13. The prosecution examined P.W.4 Dr. Jayantilal Harjivandas Karia at Exh. 10 to prove that death was CR.A/4920/2002 8/9 JUDGMENT homicidal in nature. According to him, the burn injuries were sufficient in the ordinary course nature to cause death. There is no cross-examination to indicate that it was accidental burn injury. Postmortem Report Exh. 14 indicates that the death was due to shock due to extensive burns. Therefore, death was homicidal and not suicidal. 14. In view of above, the evidence in the form of First Information Report and dying declaration indicates that accused Raju @ Rajesh @ Rajaram was responsible for the burn injuries sustained by the deceased Rasilaben. Therefore, no interference is warranted in the impugned judgment. 15. In the result, the present Criminal Appeal fails and is dismissed. The judgment and order of conviction and sentence of present appellant dated 11-12-2001 recorded by the learned Addl. Sessions Judge, Rajkot in Sessions Case No. 168 of 2000 for the offence punishable u/s 302 of the I.P. Code, is confirmed. The muddamal be disposed of as directed by the trial court. (Bhagwati Prasad, J.) (Bankim N. Mehta,J.) CR.A/4920/2002 9/9 JUDGMENT /JVSatwara/