CR.A/7720/2001 1/10 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 77 of 2001 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. ===================================================== SONALBEN SASHIKANT BHATT - Appellant(s) Versus STATE OF GUJARAT - Opponent(s) ===================================================== Appearance : MR BC DAVE for Appellant(s) : 1 - 2. MS HANSABEN PUNANI APP for Opponent(s) : 1, ===================================================== CORAM : HONOURABLE MR.JUSTICE BHAGWATI PRASAD CR.A/7720/2001 2/10 JUDGMENT and HONOURABLE MR.JUSTICE BANKIM.N.MEHTA Date : 14/11/2008 ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE BANKIM.N.MEHTA) 1. The appellants – convicts have preferred the present appeal u/s 374 (2) of the I.P. Code challenging judgment and order of conviction and sentence dated 17-1-2001 rendered by learned Addl. Sessions Judge, City Sessions Court, Ahmedabad in Sessions Case No. 12 of 1997 convicting them for the offence punishable u/s 302 read with Section 34 of the I.P. Code and sentencing them to undergo sentence of life imprisonment and to pay fine of Rs.1000/-, in default thereof, to undergo further sentence of six months' Rigorous Imprisonment. 2. In brief, the prosecution case is that deceased Savitaben Triloksing was the sister of appellant Surendrakumar and accused Laxmiben Surendrakumar was the wife of appellant Surendrakumar. Savitaben was residing in the house of her sister Pushpaben Narendrakumar and appellant Surendrakumar and his wife Laxmiben were residing behind her house and were picking up frequent quarrels with Savitaben as to why she came to reside there. Appellant Sonalben was tenant of appellant Surendrakumar. On 23-5-1996 at about 6-00 in the evening when Savitaben was CR.A/7720/2001 3/10 JUDGMENT sitting on “otala”, Laxmiben came there and started abusing her. As Savitaben told her not to give abuses, Laxmiben got enraged and brought kerosene container. Appellant Sonalben caught hold of deceased Savitaben and Laxmiben poured kerosene over her. At that time, appellant Surendrakumar came there and ignited matchstick. Nitaben the daughter of the deceased, her sister Pushpaben and other persons came there and extinguished the fire. Savitaben was taken to the hospital and she lodged a complaint. During treatment, Savitaben succumbed to her injuries. 3. On the basis of the complaint filed by Savitaben investigation was started. At the end of investigation charge sheet came to be filed against the accused for the offence punishable u/s 302 and 34 of the I.P. Code. As the offence was triable by Sessions Court, the case was committed to the City Sessions Court, Ahmedabad and it was registered as Sessions Case No. 12 of 1997. Learned Additional Sessions Judge, Court No.17, City Sessions Court, Ahmedabad framed charge Exh. 1 for the offence punishable u/s 302 read with section 34 of the I.P. Code. The accused pleaded not guilty and claimed to be tried and hence the prosecution adduced evidence to prove the charge. 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 CR.A/7720/2001 4/10 JUDGMENT statement recorded u/s 313 of the Code of Criminal Procedure, 1973 stated that they have not committed the offence and they have been falsely implicated in the offence. The accused also examined defence witnesses. 5. During pendnecy of trial, accused Laxmiben Surendrakumar Varma died and hence the case stood abated against her. 6. After hearing the learned A.P.P. for the State and learned advocate for the accused, the trial Court convicted the accused and sentenced them to undergo sentence as mentioned hereinabove. Being aggrieved by the said decision, the accused have preferred the present appeal. 7. We have heard learned advocate Mr. B.C. Dave for the appellants and learned A.P.P. Ms. Hansaben Punani for the respondent – State at length and in great detail. We have also perused the impugned judgment and records and proceeding of the trial court. 8. Learned advocate for the appellants mainly submitted that there were disputes between the appellant and the deceased and there is no independent evidence to connect the accused in the offence. Appellant Sonalben was not concerned with the dispute and she is falsely implicated. He has also submitted that there is no evidence to connect the accused with the offence. Therefore, the CR.A/7720/2001 5/10 JUDGMENT impugned judgment is erroneous and it deserves to be set aside. 9. Learned A.P.P. Ms. Hansaben Punani submitted that the prosecution has proved the case beyond reasonable doubt by reliable evidence. Therefore, no interference is warranted in the impugned judgment and the appeal deserves to be dismissed. 10. The prosecution mainly relied upon First Information Report lodged by the deceased, her dying declaration recorded by the Executive Magistrate, and history of her injuries given by the deceased to the Doctor. 11. After the incident Savitaben was taken to the hospital for treatment. The Doctor who treated her, recorded the history of burn injuries in the case papers given by Savitaben. The prosecution examined the Doctor P.W. 7 Dr. Bharatkumar Shankerlal Dave at Exh. 32. According to the witness, when Savitaben was brought to hospital for treatment, she gave history of her injuries. According to him, history of her burn injuries was recorded in the case papers Exh.33. The prosecution produced case papers at Exh. 33. It appears from the case papers that Savitaben in the history of burn injuries stated that her brother and her brother's wife set her on fire. Therefore, it is clear that at the first opportunity, after the incident, Savitaben implicated appellant Surendrakumar in the offence alleging that CR.A/7720/2001 6/10 JUDGMENT he along with his wife set her on fire. The case papers also indicate that Savitaben was conscious. There is nothing to indicate that false history was recorded. 12. The prosecution also examined P.W.1 Jagdish Sundarlal, the Executive Magistrate who recorded dying declaration at Exh. 8. According to the witness, before recording dying declaration, he ascertained as to whether the patient was conscious or not. The witness also inquired from the Doctor about the same who informed him that the patient was conscious and so he started recording dying declaration. The dying declaration is in the form of questions and answers. It was recorded between 09-50 and 10-15 at night on 23-5-1996. At the end of declaration, there is an endorsement made by the Doctor at 10-05 p.m. that the patient was conscious and was able to speak. The Executive Magistrate also made an endorsement that the patient was conscious. Dying Declaration Exh. 10 indicates that accused Laxmiben poured kerosene on the declarant and appellant Surendrakumar ignited match-stick. It also indicates that appellant Sonalben who was with them also burnt her. It emerges from the dying declaration that before recording the dying declaration, the Executive Magistrate ascertained that the patient was conscious and was able to give account of her burn injuries. The Doctor also made endorsement that the patient was conscious and was able to speak. There is nothing to indicate that Savitaben CR.A/7720/2001 7/10 JUDGMENT was not in fit state of mind to give account of her burn injuries or that it was tutored. The defence has not been able to point out any infirmity in it. It clearly indicates the role played by appellant Surendrakumar in setting the deceased on fire. Therefore, learned trial Judge was justified in relying upon the dying declaration. However, as regards appellant Sonalben is concerned, except that she was with appellant Surendrakumar no active role is attributed to her in commission of the offence. Therefore, appellant Sonalben cannot be connected with the offence on the basis of dying declaration. 13. The prosecution also produced First Information Report lodged by Savitaben, at Exh. 20. It is alleged that appellant Sonalben caught hold of her, accused Laxmiben poured kerosene and appellant Surendrakumar ignited match-stick and set her on fire. It is true that F.I.R. implicates both the appellants but on scrutiny of evidence, it appears that there are discrepancies with regard to act attributed to appellant Sonalben. In the history given before the Doctor, Savitaben has not stated about appellant Sonalben. In the dying declaration she has stated that appellant Sonalben set her on fire whereas in the F.I.R. the deceased has alleged that appellant Sonalben caught hold of her. In view of this, the prosecution case for appellant Sonalben becomes doubtful. 14. As regards appellant Surendrakumar, F.I.R., CR.A/7720/2001 8/10 JUDGMENT history before the Doctor and dying declaration, in detail, describes the role played by him in the offence. All these documents consistently state that he was responsible for the burn injuries. Therefore, it is difficult to believe that he was not involved in the offence. 15. The prosecution examined Dr. Madhusudan Atmaram Patel at Exh. 16 who performed postmortem, at Exh.16 and also produced postmortem report at Exh. 17. Postmortem report Exh. 17 indicates that the deceased had sustained burn injuries and the cause of death was septicaemia as a result of burn injuries. In light of this, it is proved beyond reasonable doubt that the injuries sustained by the deceased were homicidal in nature. 16. The appellants have examined defence witnesses D.W.1 – Pushpaben Narendrakumar Exh. 44, D.W.2 Nitaben Triloksinh Exh. 46, D.W. 3 Saraswatiben Ramkishan Exh. 48 and D.W. 4 Murlidhar Nathmal Sevani Exh. 52. D.W.1. Pushpaben Narendrakumar is the sister of deceased Savitaben. She has stated that she does not know as to how Savitaben sustained burn injuries. D.W.2 Nitaben Triloksinh Exh. 44 is the daughter of deceased Savitaben. She has tried to support the defence version. It appears from her evidence that when the witness and her brother were standing outside their house, Savitaben came out in burning condition. Therefore the witness was not present at the time of the occurrence. Similarly, CR.A/7720/2001 9/10 JUDGMENT D.W. 3 Saraswatiben Ramkishan Exh. 48 and D.W. 4 Murlidhar Nathmal Sevani Exh. 52 have stated that they do not know as to how Savitaben sustained burn injuries. Therefore, the defence witnesses do not render any support to the accused. 17. In view of above, the dying declaration in the form of F.I.R., history of burn injuries given by the deceased to the Doctor and the dying declaration recorded by the Executive Magistrate are consistent and implicate appellant Surendrakumar. Therefore, learned trial Judge was justified in relying upon such evidence and no interference is warranted in the impugned judgment convicting and sentencing appellant Surendrakumar. As regards appellant Sonalben is concerned, the prosecution evidence is shaky. There are glaring discrepancies in the evidence. Therefore, appellant Sonalben is required to be acquitted by giving benefit of doubt. 18. In the result, the present appeal is partly allowed, The judgment and order of conviction and sentence of appellant No. 2 Surendrakumar @ Kakubhai Ramkishan Varma passed on 17-01-2001 by learned Addl. Sessions Judge, City Sessions Court, Ahmedabad in Sessions Case No.12 of 1997 for the offence punishable u/s 302 of the I.P. Code is confirmed. 19. So far as appellant No. 1 – Sonalben Sashikant CR.A/7720/2001 10/10 JUDGMENT Bhatt is concerned, judgment and order convicting and sentencing her passed on 17-01-2001 by learned Addl. Sessions Judge, City Sessions Court, Ahmedabad in Sessions Case No.12 of 1997 for the offence punishable u/ss 302 read with Section 34 of the I.P. Code is set aside and she is acquitted of the charge levelled against her. She is on bail, hence her bail bond stands cancelled. Fine, if paid, be returned to her. The muddamal be disposed of as directed by the trial court. (Bhagwati Prasad, J.) (Bankim N. Mehta, J.) /JVSatwara/