CR.A/6/4999 1/15 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 649 of 1999 For Approval and Signature: HONOURABLE MR.JUSTICE J.R.VORA HONOURABLE MR.JUSTICE Z.K.SAIYED ========================================================= 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 ? ========================================================= GAJANAND PANDURANG NANDEKAR - Appellant(s) Versus STATE OF GUJARAT - Opponent(s) ========================================================= Appearance : THROUGH JAIL for Appellant(s) : 1,MR BS SUPEHIA for Appellant(s) : 1, MR KC SHAH, APP for Opponent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE J.R.VORA and HONOURABLE MR.JUSTICE Z.K.SAIYED Date : 26/09/2008 ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE J.R.VORA) CR.A/6/4999 2/15 JUDGMENT 1. The present Appellants – original accused in Sessions Case No.127 of 1998, was charged and tried by the learned Additional Sessions Judge, Surat, for the offence punishable under Section 302 and 498-A of Indian Penal Code (for short “IPC”). 2. It is the case of the prosecution that the complainant Jija @ Jayaben, wife of the present appellant – accused Gajanand Padurang, was staying with her family. Since marriage, the appellant – accused was always harassing her and imposing physical and mental cruelty on her. In the morning of 24.2.1998 quarrel took place between her and her husband – present appellant and, therefore, her husband – accused poured kerosene on the body of deceased complainant Jiji @ Jaya and lighted the stick from the match box on her. Therefore, she received serious burn injury and the accused admitted her in Civil Hospital. The Police Constable, on duty at the Civil Hospital, has reported this incident, through telephone worthy, to Limbayat Police Station. So P.S.O. informed the said incident to the concerned P.S.I. Shri S.N.Taviad, P.S.I. rushed to the New Civil Hospital and inquired for injured lady. He has managed to record the Dying Declaration of Jiji @ Jayaben and prepared Yadi to the Executive Magistrate and obtained endorsement of Doctor, who was on duty. The victim Jiji @ Jaya was conscious and able to speak and, therefore, the Doctor has made endorsement and then the yadi was sent to the Executive Magistrate. The Executive Magistrate came to the Hospital and recorded the Dying Declaration of victim Jiji @ Jayaben and then P.S.I. Taviad recorded the CR.A/6/4999 3/15 JUDGMENT complaint of Jiji @ Jayaben and offence was registered at Limbayat Police Station. Thereafter further investigation was handed over to Police Inspector Shri M.V.Jala. P.I. Shri Jala visited the place of offence and statement of witnesses were record and further statement of complainant Jiji @ Jayaben was also recorded. During the said incident the present appellant – accused Gajanand has also received burn injury @ 6 per cent. So, accused was also sent to the Hospital for treatment and then on 26.2.1998 he was arrested. Panchnama of physical condition of present accused – appellant was drawn and Pant of the accused was recovered. During the treatment on 1.3.1998, due to burn injury, complainant Jiji @ Jayaben was died. So, Inquest Panchnama was prepared and Dead Body of deceased was sent to the Hospital for Post Mortem. Then the Report was prepared by the I.O. and the offence punishable under Section 302 I.P.Code was added. Then the I.O. has prepared Ravangi Nondh regarding the seized Muddamal and the same was sent to F.S.L. for scientific analysis and filed charge-sheet against the present appellant – accused on 2.4.1998 before the learned J.M.F.C., Surat. 3. After filing the charge-sheet, in the present case, as the offence was exclusively triable by the Court of Sessions, the learned Judicial Magistrate First Class, Surat, committed the said case to the Court of Sessions at Surat. 4. Thereafter, the charge was framed against the present – CR.A/6/4999 4/15 JUDGMENT appellants - accused. The accused pleaded not guilty to the said charge and claimed to be tried. 5. In order to bring home the charge levelled against the accused, the prosecution has examined in all 13 witnesses and relied upon their oral testimonies. They are as under: P.W. 1 - Dr. Chavli Krishna Dutt, Ex.9 P.W. 2 - Dr. Nirajbhai Ishwarbhai Patel, Ex. 12; P.W. 3 - Pandurang Kishan Mankar, Ex.14; P.W. 4 - Alkaben Gajanand, Ex.15 P.W. 5 - Anil Pandurang Vankar, Ex.16; P.W.6 - Chhabilbhai Gangaram Chauhan, Ex.26, P.W.7 - Ezazmiya Chandmiya, Ex.29 P.W.8 - Jansabibi Akhtar Akbar Shaikh, Ex.30; P.W.9 - Nasimbanu Vahedkhan Pathan, Ex.31; P.W.10- P.S.I. Somabhai Nathabhai Taviyad, Exh.32; P.W.11- Dr. Paragkumar Dineshbhai, Ex.36; P.W.12- PI & IO Molubha Vaghabha Jala, Exh.37 CR.A/6/4999 5/15 JUDGMENT To Prove the culpability of the accused, the prosecution has also produced and relied upon the following documentary evidence. They are as under : (1)Yadi for registering the offence written to PSI, Exh.17; (2)Original complaint at Exh.33 (3)Panchnama of scene of offence Ex.18; (4)Arrest Panchnama of accused, Ex.19; (5)Inquest Panchnama, Ex.20; (6)Post Mortem Note, Ex.10; (7)Certificate for giving treatment to the accused - Gajanand, Exh.21; (8)Copy of Janva Jog Entry No.32/98,Ex.22; (9)Opinion of FSL, Ex.23; (10)Case papers for giving treatment to the patient Exh. 13; (11)Yadi for recording D.D. Ex.27; (12)Original Dying Declaration, Ex.28 7. Thereafter, after examining the witnesses the further statement of accused under Section 313 Cr.P.C. was recorded in which the appellant – accused has denied the case of prosecution and contended that he has also received burn injury when he was trying to save his wife deceased Jiji @ Jayaben. 8. After considering the oral as well as documentary evidence and after hearing the parties, the learned Additional Sessions Judge vide impugned Judgment dated 18.6.1999 held the accused guilty to the offence CR.A/6/4999 6/15 JUDGMENT punishable under Section 302 and 498-A I.P. Code and convicted the accused and awarded sentenced to suffer rigorous imprisonment for life for the offence punishable under Section 302 I.P. Code with fine of Rs.1000/-, i/d to undergo S.I. for six months and for the offence punishable u/s. 498-A I.P.C. to undergo sentence for a period of 2 years with fine of Rs.1000/- i/d. to undergo SI for 3 months. Both the sentences were ordered to run concurrently. 9. Being aggrieved by and dissatisfied with the impugned Judgment and Order of conviction and sentence passed by the learned Trial Judge the present appellant – accused has filed this Criminal Appeal, through Jail. Mr. B.S.Supehia, learned Advocate, is appointed to defend the case of the present appellant – accused. 10.Heard Mr. B.S. Supehia, learned Advocate, appointed through Legal Aid, for the appellant – accused and Mr. K.C. Shah, learned A.P.P., for the respondent – State. 11.Learned Advocate Mr. Supehia has contended that the appellants – accused is wrongly booked in the commission of offence and is wrongly convicted for the alleged offence charged against him. He contended that from the complaint itself it was established before the trial Court that the said complaint was not given by the deceased herself, but, it was directly recorded by the P.S.I. Mr. Supehia also contended that dying declaration was recorded by the Executive Magistrate, but, at the time of recording the dying declaration the endorsement CR.A/6/4999 7/15 JUDGMENT regarding position qua mental and physical condition of the deceased was not obtained from the doctor. He further contended that when the IO has prepared Yadi to the Executive Magistrate at that time endorsement of the doctor was obtained, but later on it was not verified. So, the dying declaration itself is doubtful document and the prosecution was not in a position to prove before the trial Court that when the dying declaration was recorded by the Executive Magistrate, at that time, the maker of a dying declaration – the deceased was in a position to speak properly and was also in conscious condition. He also contended that in this case there is no direct evidence. The prosecution has not examined any independent witness. Mr. Supehia has read the Yadi (Exh.27) and contended that PSI, Surat, who has recorded the complaint has prepared Yadi to the Executive Magistrate and he has specifically mentioned that due to some unknown reason Jiji @ Jayaben, wife of present appellant – accused poured kerosene on her body and burnt herself. He has contended that from the above Yadi it was established before the PSI, Limbayat Police Station that the deceased was burnt herself and reason was not shown before P.S.I. He has also contended that that was the first information to the Police and from Exh.27 it was established before the trial Court that cause of injury was not considered from the contents of Exh.27, but, the police has concocted the complaint (Exh.33) and dying declaration (Exh.28). 12.Mr. Supehia has also contended that from the complaint itself it is established before the trial Court that always CR.A/6/4999 8/15 JUDGMENT the quarrel took place between the appellant – accused and the deceased-wife. Mr. Supehia has contended that in every family the question of rare and tare is always found during the quarrel took place between the husband and wife. FIR and dying declaration suggest that prior to the incident there was quarrel between the deceased and the appellant – accused and due to said quarrel the present appellant – accused was instigated by the deceased and due to said instigation he would have provoked himself suddenly and poured the kerosene on the body of deceased wife. Mr. Supehia also contended that the accused – appellant has also received burn injury and the said injury was caused to save his wife which itself suggests that the appellant was trying to save his wife. Mr. Supehia further contended that the from said act of the accused – appellant there is a reason to say that there was no intention of the appellant – accused to kill his own wife and he was provoked and due to provocation he would have committed said act. Mr. Supehia has also read the medical evidence, Post Mortem Note as well as the dying declaration and F.I.R. and contended that from the evidence on record it is established that the present appellant – accused has not committed any offence of murder, and the trial Court has erred in convicting the present appellant – accused for the offence of murder of his own wife. Mr. Supehia has lastly contended that due to some provocation the accused – appellant might have committed offence and requested this Hon'ble Court that the present Appeal is required to be partly allowed. Mr. Supehia has also relied upon the Jail Report of the appellant – accused and CR.A/6/4999 9/15 JUDGMENT contended that the appellant – accused is in Jail since long and the sentence which he has undergone may be treated as substantive sentence and he may be set at liberty. 13.Learned APP Mr. K.C. Shah , for the respondent, has contended that the there is voluminous reliable, trustworthy and clinching evidence on record which unequivocally and unerringly proves that the appellant – accused has committed the murder of victim. He also contended that the prosecution has established beyond reasonable doubt that the Executive Magistrate has recorded the dying declaration of deceased and he has not committed any illegality. It was recorded in absence of the relatives of deceased. He also contended that before recording the dying declaration regarding mental and physical condition of the deceased the doctor has made an endorsement. The dying declaration was also read over before the deceased. So, the dying declaration is trustworthy and reliable and, therefore, it cannot be thrown away. Mr. Shah has read over the FIR and contended that the contents of FIR is totally corroborated with the contents of dying declaration of the deceased, made before the Executive Magistrate. Mr. Shah has also contended that the prosecution has proved its version before the trial Court that the present appellant – accused has committed murder of his wife. He has also contended that it is a case of murder. He further contended that the prosecution has established its case beyond reasonable doubt and prayed that the Judgment and Order passed by the trial Court is required CR.A/6/4999 10/15 JUDGMENT to be confirmed. He also contended that the trial Court, after fully appreciating the evidence, has rightly convicted and sentenced the appellants – accused. There is no lacuna in the Judgment of the trial Court and prayed to confirm the Judgment and order of conviction and sentence passed by the trial Court. 14.We have gone through the oral as well as documentary evidence led by the prosecution before the trial Court. We have also undertaken a complete and comprehensive appreciation of all vital features of the case and entire evidence on record which read and re-read by the learned Advocate, appearing for the parties to bring the reasonable probabilities of the case. It is not in dispute that victim Jiji @ Jayaben died homicidal death. The prosection has relied upon the evidence of Executive Magistrate and the Police Officer, who has recorded the complaint of the deceased. 15.The prosecution has relied upon the oral evidence of P.W.1 – Dr. Chivli Krishna Dutt, (Exh.9), who has performed the Post Mortem of deceased and also the oral evidence of P.W.2 – Dr. Nirajbhai Ishwarbhai Patel, who has given primary treatment to the deceased and who has certified that the deceased was fully conscious. This witness (P.W.2) has also taken history of incident from the deceased. Both, P.W.1 & P.W.2 are the Medical experts. From the contents of Post Mortem Report we have found that the Doctor has not committed any wrong in performing the Post Mortem of the deceased. Doctors are the independent witnesses. We have also gone CR.A/6/4999 11/15 JUDGMENT through the oral evidence of child witness, daughter of appellant – accused and the deceased, P.W.4, Exh.15. We have found from the oral evidence of this child witness that her parents – deceased and the appellant – accused, were always quarreling with each other and there were some difference of opinion between them. This witness has explained the whole incident regarding the involvement of the present appellant – accused. We have not found any contradictory version from the oral evidence of this child witness. She is a daughter of deceased and the present appellant – accused. It is a general belief that the child always speaks truth and the child never tell lie and when the question of involvement of parents arise then always the child will speak truth and trustworthy. We have also gone through the Panchnama. We have found corroboration regarding the burn injury on deceased from the Inquest Panchnama, Exh.20. It is true that the prosecution has relied upon the oral evidence of P.W.6 – Executive Magistrate – Shri Chhabildas Chauhan, Ex.26 and the dying declaration Ex.28. It is true that the prosecution has established the cause of injury through dying declaration of deceased (Exh.28). 16.We have gone through the oral as well as documentary evidence of the witnesses which are high-lighted by the learned Advocate for the parties. Just to apply the word of “Murder” it is required for the prosecution to establish that there was an intention to kill the deceased. From the above evidence we have perused each and every aspect and minutely gone through the evidence. We have CR.A/6/4999 12/15 JUDGMENT also gone through the contents of dying declaration and the complaint of the deceased. The complainant also deposed in the complaint before the P.S.I. that always the quarrel was taking place with her husband. We have scrutinized the oral evidence of witnesses and found that prior to receiving burn injury there was quarrel between the appellant – accused and the deceased and due to said quarrel accused got provoked and due to this provocation he poured kerosene on the body of deceased. So, from the evidence it is clearly established that due to hot exchange and dialog between the deceased and present appellant – accused, the accused all of a sudden got excited and poured kerosene on the deceased and lighted stick from the match box and set her on fire. Therefore, there was no intention of appellant – accused to commit murder of deceased. 17.In the case of LACHMAN SINGH v/s. STATE OF HARYANA, reported in (2006) 10 SCC 524, the Hon'ble Supreme Court has held that “occurrence takes place in course of sudden quarrel, conviction of appellant is required to be altered from Section 302 to Section 304, Part-I”. In the case of HARENDRA NATH v/s. STATE OF ASSAM, reported in AIR 2007 SCW 4631 the Hon'ble Supreme Court have set out the distinction between “Murder” and “culpable homicide” not amounting to murder and altered the conviction recorded under Section 302 to Section 304 Part-I. 18.We are of the opinion that if the substratum of prosecution case remains unaffected and remaining part CR.A/6/4999 13/15 JUDGMENT of the evidence is trustworthy the prosecution case should be accepted to the extent it is considered safe and trustworthy. 19.This Court has considered the submissions advanced by the learned Advocates appearing for the parties and perused the impugned Judgment and order. This Court has undertaken a complete and comprehensive appreciation of all vital features of the case and the entire evidence on record which is read and re-read by the learned advocates for the parties with reference to broad and reasonable probabilities of the case. In light of caution sounded by the Hon'ble Supreme Court while dealing with criminal appeals, this Court has examined the entire evidence on record for itself independently of the trial Court and considered the arguments advanced on behalf of the accused and infirmities pressed, scrupulously with a view to find out as to whether the trial Court has rightly recorded the order of conviction and sentence. 20.As observed and discussed at length, in our opinion, in light of the oral as well as documentary evidence, it is established by the prosecution that the appellant – accused has poured the kerosene on his wife - the deceased and lighted the stick from the match box and set her fire. However, we are of the opinion that due to provocation the appellant – accused has committed such illegal act. It was not his intention to commit murder of his wife, otherwise, he would not try to save his wife. During this incident the appellant – accused has also CR.A/6/4999 14/15 JUDGMENT received 6 % burn injury. So the case of the appellant – accused is not covered within the meaning of “Murder” which is punishable under Section 302 I.P. Code, but his case is falling within the purview of Section 304 Part-I I.P. Code. 21.We have also perused the jail Report of the appellant – accused which is produced by the learned A.P.P. It appears from the Jail Report that the appellant – accused is in jail since more than 9 years. We have considered the documentary as well as oral evidence as also considered the submissions made by learned Advocate Mr. Supehia. When there was no intention to kill the person then the word “murder” cannot be applicable and the appellant – accused may be held guilty for the offence punishable under Section 304 Part-I I.P. Code. The appellant – accused is in Jail since 9 years and, therefore, if the sentence which he has already undergone may be treated as sentence for the offence punishable under Section 304 Part-II I.P.Code the same would meet the ends of justice. 22.For the reasons recorded in the Judgment, the Appeal is partly allowed. The conviction of the appellant – accused for the offence punishable under Section 498-A and sentence awarded by the trial Court is confirmed and no interference is called for in this conclusion. The Judgment and order of the trial Court, impugned in this Appeal, is modified to the extent that appellant – accused is held guilty for the offence punishable under Section 304 Part-I of I.P. Code, instead of offence punishable CR.A/6/4999 15/15 JUDGMENT under Section 302 of I.P. Code, as has been held by the trial Court. The appellant – accused is sentenced to undergo rigorous imprisonment of 10 years and to pay fine of Rs.1000/- in default to undergo simple imprisonment of 3 months for the offence punishable under Section 304, Part-I of I.P.Code. The appellant – accused has already undergone the sentence of about 10 years and 6 months. It is also directed that both the sentences to run concurrently. It is directed that the accused be set at liberty forthwith if he is not required to be detained in Jail for any other purpose, because he has already undergone more sentence than imposed, including default sentence. Rest of the order of the trial Court in respect of muddamal is not interfered with. (J. R. VORA, J.) (Z.K.SAIYED, J.) sas