CR.A/65920/2002 1/8 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 659 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 ? 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 ? ========================================= = CHANDUBHAI DEVJIBHAI BHANUSALI Versus STATE OF GUJARAT & ANOTHER ========================================= = Appearance : MR BC DAVE for MR JM BUDDHBHATTI for Appellant MS MITA PANCHAL, ADDL. PUBLIC PROSECUTOR for Opponent ========================================= = CORAM : HONOURABLE MR.JUSTICE BHAGWATI PRASAD and HONOURABLE MR.JUSTICE BANKIM.N.MEHTA Date : 16/12/2008 CR.A/65920/2002 2/8 JUDGMENT ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE BANKIM.N.MEHTA) 1. The appellant – convict has preferred this appeal under section 374(2) of the Code of Criminal Procedure, 1973 and challenged the judgment and order of conviction and sentence passed by the learned Additional Sessions Judge, Valsad Camp on 14.6.2002 in Sessions Case No.116 of 1999 convicting him for the offence punishable under sections 302 and 498A of the Indian Penal Code and sentencing him to undergo life imprisonment and to pay fine of Rs.1000/- in default thereof to undergo rigorous imprisonment for three months for the offence punishable under section 302 of the Indian Penal Code and RI for 6 months and to pay fine of Rs.500/- in default thereof to undergo RI for one month for the offence punishable under section 498A of the Indian Penal Code. 2. The brief facts of the prosecution case are that deceased Kasturiben @ Kantaben was married to the accused on 15.5.1998 and they were residing at Vapi. On 13.4.1999, at about 11:00 p.m., the father-in-law Devjibhai, brother-in-law Vasantbhai and sister-in-law Daxaben came to her house and demanded money and there was altercation. Vasantbhai and Daxaben caught hold of Kasturiben @ Kantaben and her husband Chandubhai poured kerosene and set her on fire. After the incident, Kasturiben @ Kantaben was taken to the hospital for treatment, where she succumbed to the injuries. 3. On the basis of the first information report lodged by Maheshbhai Vishrambhai – brother of the deceased, offence was registered and investigation was started. At the end of CR.A/65920/2002 3/8 JUDGMENT investigation, charge sheet came to be filed against the accused for the offence punishable under sections 302, 498A and 34 of the Indian Penal Code. As the offence was triable by Sessions Court, the case was committed to the Sessions Court and it was registered as Sessions Case No.116 of 1999. The learned Additional Sessions Judge framed charge Exh-4 for the aforesaid offence against the accused. The accused denied having committed the offence and claimed to be tried. Therefore, the prosecution adduced evidence. On completion of recording of evidence, the incriminating circumstances appearing in the evidence against the accused were explained to him. The accused in his further statement recorded under section 313 of the Code of Criminal Procedure, 1973, stated that the deceased committed suicide and she had 99% burn injuries and as her fingers were burnt, thumb impression could not be taken on dying declaration and there was no endorsement of the doctor on the dying declaration that the deceased was in fit state of mind to give dying declaration and therefore, the accused have been falsely implicated. After hearing the learned Additional Public Prosecutor and learned advocate for the accused, the Court convicted the accused for the offences mentioned hereinabove, but acquitted other accused. Being aggrieved by the said decision, the convict has preferred this appeal. 4. We have heard learned advocate Mr. BC Dave for Mr. JM Buddhbhatti for the appellant and learned APP Ms. Mita Panchal at length and in great detail. We have also perused the impugned judgment and record and proceedings of the trial Court. CR.A/65920/2002 4/8 JUDGMENT 5. Learned advocate for the appellant has submitted that the first version given by the decease at the hospital was that she had burnt herself and it was recorded in the form of history in the medical case papers. Thereafter, in the dying declaration, she has implicated the accused but in the subsequent dying declaration, there was no endorsement of the doctor and therefore, it is difficult to believe that she was in fit state of mind to give dying declaration and therefore, the learned trial Judge committed error in relying upon the dying declaration subsequently recorded and ignoring the history given by the deceased in the first point of time. Therefore, the impugned judgment is required to be set aside. 6. Learned APP has submitted that in the dying declarations, the deceased has consistently stated that the accused was responsible for the burn injuries. The doctor has made an endorsement on the Yadi about the state of mind of the deceased and therefore, the learned Judge was justified in relying upon the dying declaration. She has also stated that even there are two oral dying declarations made by the deceased before two witnesses and all the dying declarations are consistent, therefore, no interference is warranted in the impugned judgment and appeal is required to be dismissed. 7. It appears from the prosecution case that the unfortunate incident of burning occurred in four corners of house. Therefore, there were no independent eye witnesses to the incident, but the deceased gave account of her injuries by making statements before the witnesses. Therefore, the entire prosecution case rests upon the dying declarations. It appears that the deceased gave history of her burn injuries to the CR.A/65920/2002 5/8 JUDGMENT doctor when she was brought to the hospital for treatment. Thereafter, she again made statements before PW 5 Maheshbhai Vishrambhai and PW 11 Meghajibhai. PW 8 Natubhai, Executive Magistrate also recorded her dying declaration. 8. After the incident, injured Kasturiben @ Kantaben was taken to the hospital for treatment by Haribhai and Liladharbhai. Prosecution examined both these witnesses but they have not supported the prosecution case. It appears that when she was admitted in the hospital for treatment, the Doctor treating her made inquiry about the burn injuries and the history of injuries was recorded in the medical case papers. The prosecution examined PW 1 Dr. Rajendra Shriram Exh-11, the Doctor who recorded the history of burn injuries. According to the witness, Kasturiben @ Kantaben was brought to the hospital by Hirabhai and Liladharbhai and she gave history that she herself poured kerosene and set her on fire. The history given by the patient was recorded in case paper Exh-13. 9. The evidence indicates that PW 5 Maheshbhai Vishrambhai Exh-20– brother of Kasturiben @ Kantaben was informed about the incident and on inquiry from Kasturiben @ Kantaben, she informed him that there was altercation, as the accused demanded money and her husband poured kerosene and set her on fire. The witness has been extensively cross- examined, but it does not indicate that Kasturiben @ Kantaben did not give true account of injuries to the witness or that she was not in a fit state of mind to give statement about the injuries. CR.A/65920/2002 6/8 JUDGMENT 10. PW 5 Maheshbhai also lodged first information report alleging demand of money, altercation between the accused and the deceased and role played by the appellant in commission of the offence. It also indicates that the deceased made a statement to him with regard to her injuries. 11. The prosecution examined the PW 11 Meghajibhai Exh-32 before him also Kasturiben @ Kantaben made a statement as to the circumstances of transaction which resulted in her death. According to the witness, on receiving information about the incident, he went to the hospital and was informed by Kasturiben @ Kantaben that appellant convict was responsible for the burn injuries. The cross-examination of this witness does not indicate that she was not in a fit state of mind to give statement with regard to her burn injuries. 12. In view of the above consistent evidence, it is difficult to believe that deceased did not make statements relating to cause of her death. Both the statements are consistent and coherent. There is nothing to indicate that the deceased did not make such declaration or that she was tutored. 13. The evidence of PW 8 Natubhai Ukad Exh-25, Executive Magistrate indicates that on receipt of Yadi from the police, he went to record dying declaration and after ascertaining from the doctor that the patient was conscious and was in a position to give statement, recorded the dying declaration. Yadi Exh-26 bears an endorsement made at 2:50 a.m. that the patient was conscious. The dying declaration Exh-27 also states that the appellant convict poured kerosene and set her on fire. It also appears that before recording the dying declaration, Executive CR.A/65920/2002 7/8 JUDGMENT Magistrate ascertained from the declarant whether she would be able to give reply to the questions. The evidence of the witness indicates that he obtained opinion of the Doctor that the declarant was in a position to give statement. There is nothing to indicate that the declarant was not in a fit state of mind to give the statement. Therefore, the dying declaration recorded by the Executive Magistrate appears to be reliable. 14. In view of the above, except the history recorded by the doctor, two oral dying declarations and one dying declaration recorded by the Executive Magistrate implicate the appellant convict. Now the question is whether to reply upon the history recorded by Doctor or on the other dying declarations. It appears that soon after the incident, Kasturiben @ Kantaben was taken to the hospital. It is not a defence that the appellant convict was not in the house at the time of incident. It is strange that though the appellant convict was present, he did not bother to take the injured to the hospital. The conduct of the appellant convict raises suspicion. It appears that the circumstances in which Kasturiben @ Kantaben was taken to the hospital, she did not give true history of her burn injuries to the doctor. Thereafter, the deceased made three statements. All these statements are consistent. There is nothing to indicate that the deceased was pressurized to make such statements or that she was tutored. Therefore, the dying declaration in the form of the history given to the doctor was rightly discarded and the learned trial Judge was justified in relying upon the other dying declarations. 15. The evidence of PW 2 Dr. Pradip Ramdatt Pure, Exh-15 and postmortem report Exh-16 indicate that the cause of death CR.A/65920/2002 8/8 JUDGMENT was shock and asphyxia resulting flame extensive burns on the body. This evidence indicates that death was homicidal and not suicidal. In view of the above, the learned trial Judge was justified in coming to the conclusion that the appellant convict was involved in the offence. Learned advocate for the appellant has not been able to point out infirmity in the impugned judgment. Therefore, no interference is warranted in the impugned judgment. 16. In the result, the appeal fails and stands dismissed. The judgment and order of conviction and sentence passed by the learned Additional Sessions Judge, Valsad Camp on 14.6.2002 in Sessions Case No.116 of 1999 is confirmed. (BHAGWATI PRASAD, J.) (BANKIM N. MEHTA, J.) shekhar/-