IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No 591 of 1998 with CRIMINAL APPEAL No 686 of 1998 For Approval and Signature: Hon'ble MR.JUSTICE J.N.BHATT and Hon'ble MR.JUSTICE J.R.VORA ============================================================ 1. Whether Reporters of Local Papers may be allowed : YES to see the judgements? 2. To be referred to the Reporter or not? : YES 3. Whether Their Lordships wish to see the fair copy : NO of the judgement? 4. Whether this case involves a substantial question : NO of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the Civil Judge? : NO -------------------------------------------------------------- RAMILABEN HASMUKHBHAI KHRISTI W/O HASMUKHBHAI ASHABHAI Versus STATE OF GUJARAT -------------------------------------------------------------- Appearance: 1. Criminal Appeal No. 591 of 1998 MR JM BUDDHBHATTI with M.R. Barot, Sr. Counsel for Appellant No.1 MR J.S YADAV for appellant No.2 MR KP RAVAL, APP for Respondent No. 1 2. Criminal AppealNo 686 of 1998 MRS KRISHNA V BAROT with M.R. Barot, Sr. Counsel for Appellants MR KP RAVAL, APP for Respondent No. 1 -------------------------------------------------------------- CORAM : MR.JUSTICE J.N.BHATT and MR.JUSTICE J.R.VORA Date of decision: 21/09/2000 CAV COMMON JUDGEMENT : [Per: Vora, J.] 1. The Shakespearan love decended on earth, but with unfortunate, morbid and sad sequel, which gave birth to heinous felony causing thereby extinction of human life of auspicious boy, aged about 24 years, by unthinkable inhuman and lurid manner. 2. We must not though forget the cardinal principle of criminal justice that, however, the grave crime may be, but the prosecution must prove it beyond reasonable doubt. We are called upon to examine whether the death caused was homicidal, suicidal or accidental, and whether the present appellants could be held responsible for the same. 3. Both these Appeals are filed against the judgment and order of conviction, convicting all the appellants of both the Appeals under Section 302 read with Section 120-B of the Indian Penal Code, and punishing each of the appellants for the imprisonment of life and with fine. 4. The root of the prosecution story rests in deep love for each other, amongst two young human beings. Deceased in the present incident is Pragneshkumar Mohanbhai Meckwan, aged about 24. The incident took place, at 9.30, in the morning, at the town of Matar, situated in the District of Kheda, about 40 Kms., away from Ahmedabad, and about 15 to 18 Kms. away from Kheda District Headquarter. Deceased Pragneshkumar and original accused No.2 Pushpaben, daughter of Dahyabhai Ashabhai Khristi Parmar original Accused No.1 were in love with each other. The family of Pragneshkumar and the family of Pushpaben, both reside in Khristi Falia, at the town of Matar. 5. It is the prosecution case that once Pushpaben, during night time, climbed pipe of the house of Pragneshkumar and reached to the residence of Pragneshkumar. However, the relationship was not approved by their elders and Pushpa was persuaded to return back to her parents, but Pushpa ran away from the town in the darkness of the night, and then, she was followed by Pragneshkumar. Both of them eloped and stayed together for some time. Father of Pushpa lodged a complaint against Pragneshkumar and his father under Section 363 and 366 of the IPC. Pushpa and Pragneshkumar, both were apprehended by police during investigation. Pushpa was handed back to her parents and Pragneshkumar was released on bail in that offence. This incident occurred during, somewhere, in January, 1992. 6. Shortly, thereafter, the unfortunate incident occurred on 15th February, 1992. As per the prosecution case, and the statement which came to be recorded of the deceased, it was revealed that, Pragneshkumar was going towards market in the town of Matar. When he was passing through the way, accused No.2 Pushpaben Ashabhai Khristi, accused No.1 Dahyabhai Ashabhai Khristi and other accused rounded him in anticipation of quarrel with the deceased. Thereafter, accused No.2 Pushpaben sprinkled kerosene upon deceased Pragneshkumar. One of the persons from the group of 11 accused, ignited the match stick and lighted fire on the body of Pragneshkumar. His whole body came to be ablazed. Deceased Pragneshkumar received serious burn injuries to the extent of 90% second and third degree burns. Somebody informed Ramilaben, Court Witness No.1 Exh.89, sister of the deceased, that his brother was burning. She ran out of her house, and went to the place where Pragnesh was fallen down. The place was jut opposite to the house of one Chandrakantbhai. Immediately, husband of Ramilaben and the brother of the deceased Jaykarbhai Mohanbhai Mecwan PW-4 Exh.61 was called upon from the shop, where he was serving, and he immediately came to the incident. Pragnesh told to his brother that he be taken to the Police Station because he wanted to make a statement. Jaykar along with his relative Lataben, took Pragneshbhai to the Matar Police Station, where Court witness No.3 PSI, I.M.Kumpawat was present. He was requested to record the complaint of Pragneshkumar, but Mr.Kumpawat advised to take Pragneshkumar to the hospital at Kheda, and he said that he would record the complaint later on. Father of deceased - Mohanbhai Kalidas Mecwan was not present in the town and he was at Baroda on the fateful day. On way to Kheda Hospital, on an inquiry, Pragneshkumar conveyed to Jaykarbhai that while he was passing through the way, Pushpaben hold him and her relatives rounded him up. Pushpa sprinkled kerosene on his body and somebody from the crowd of the accused ignited him to flames. At about 10.00 a.m. Pragneshkumar reached to Kheda Hospital, where he was admitted and treated by Dr. Sanjay Vasantrao Kolte - PW2 -Exh.46. On inquiry, Pragnesh stated before Dr. Kolte that while he was passing through the road, Dahyabhai Ashabhai Khristi, Hasmukhbhai, Rameshbhai, Ramilaben, wife of Hasmukhbhai, Pushpaben, daughter of Dahyabhai Ashabhai, Elisaben and Sulemanbhai Daudbhai, all rounded him up, Pushpa sprinkled kerosene and somebody from the crowd of the accused, put him to flames. The Doctor recorded the case history on Medico Legal Case Paper and informed Kheda Town Police Station. At Kheda Town Police Station, Head Constable - Bhimsinh Chaturbhai, noted the information in the Telephone Register and in the Station Diary, and Yadi was sent to PSI - Vinodbhai Ramjibhai Toliya of Kheda Town Police Station. Simultaneously, a Yadi was also sent to the Executive Magistrate, Kheda, for recording of the Dying Declaration. At 10.20, PSI Kheda Town Police Station - Vinodhbhai Ramjibhai Toliya received Yadi and in pursuance of this, PSI Toliya immediately reached to the Kheda Hospital. He inquired about the injured and about his conditions from the Doctor. He was assured by the Doctor that the injured was fully conscious and, therefore, Toliya recorded the statement of deceased Pragneshkumar, which is at Exh.29. In the said statement Exh.29, Pragneshkumar stated the story that Pushpaben sprinkled kerosene on his body and somebody from the accused put him to fire. In this statement before Toliya, he named following persons as accused: (i) Dahyabhai Ashabhai Khristi (ii) Pushpaben Ashabhai Khristi (iii) Rameshbhai Ashabhai Khristi (iv) Hasmukhbhai Ashabhai Khristi (v) Ramilaben Hasmukhbhai (vi) Elisaben Yusufbhai (vii) Suleman Daudbhai (viii) Daudhbhai Shivabhai Khristi (ix) Mariyam Ashabhai Shivabhai 7. It was also stated by the deceased that these persons quarreled with him, and ultimately, he was put to fire after pouring kerosene. PSI Toliya obtained left hand thumb impression of the deceased on the statement as he was unable to put his signature and Doctor also put his endorsement to the effect that the patient was conscious and he could give statement, and the statement was taken before him and that both the palms were burnt, the patient was unable to sign and hence left hand thumb impression was obtained on the statement. Thereafter, in pursuance of Yadi of the Kheda Police Station, Ashwinbhai Vasudev Dave, PW3 Exh.58, Executive Magistrate, Kheda, reached to Kheda Civil Hospital at 11.05 a.m. for recording of the statement of the deceased Pragneshkumar. He ascertained from the Doctor and inquired whether the patient was conscious enough to give his statement. Doctor gave positive opinion, and hence, the Executive Magistrate Mr. Dave went to the ward, in which the patient was kept. At 11.10, he started recording of Dying Declaration of deceased Pragneshkumar in question and answer form. In this Dying Declaration also, the deceased gave the same story and gave the names of Dahyabhai Ashabhai, Pushpaben, Hasmukhbhai, Rameshbhai, Ramilaben Hasmukhbhai, Elisaben, etc. On further inquiry, he also stated the names of Suleman Daudbhai, Daudhbhai Shivabhai, Mariyamben Ashabhai, Gersombhai Yakubhai, to be the persons, who rounded him up, and set him to fire. This Dying Declaration is on record at Exh.60, was read over to deceased, was completed at about 11.45 8. According to Doctor, injuries of deceased Pragneshkumar were serious to the extent of 90% second and third degree burns. His condition became serious and, therefore, Dr. Kolte had advised to transfer the patient to Vadilal Sarabhai Hospital or L.G. Hospital, at Ahmedabad, for better treatment. It appears that Pragnesh was taken to Ahmedabad at Vadilal Sarabhai Hospital and was admitted at about 1300 hours on the same day. There also, Ellisbridge Police Station was informed by Doctor and arrangements were made by Ellisbridge Police Station for recording of Dying Declaration of Pragneshkumar. In pursuance of Yadi from the Ellisbridge Police Station, Executive Magistrate, Ahmedabad, Mr. Patel Suryakantbhai Shivrambhai, PW-7, Exh.73 at 1505 hours reached to Vadilal Sarabhai Hospital, wherein deceased Pragneshkumar was kept in Jain ward. Executive Magistrate Mr.Patel Suryakantbhai Shivrambhai ascertained from the ward Doctor that whether the deceased was conscious and in a state of mind of giving statement. When he started recording of Dying Declaration at 1510 hours, he found Pragnesh conscious and he was able to speak. Pragnesh narrated his name and address. Further, Pragnesh narrated that Pushpaben Dahyabhai poured kerosene on him. Thereafter, Executive Magistrate could not record the Dying Declaration because the condition of the patient became serious and Pragneshkumar could not further speak. The Dying Declaration to this extent recorded by the Executive Magistrate - Mr. Patel Suryakantbhai is produced at Exh.75. It appears that, thereafter, soon Pragneshkumr died in V.S.Hospital, Ahmedabad and Inquest Panchnama by Ellisbridge Police Station was drawn and the postmortem was performed by Dr. Ravindra S. Bhise, Doctor Associate, in the Department of Forensic Medicine Science in V.S.Hospital on 15th February, 1992, at about 1745 hours, which was completed at 1830 hours. PW6 Exh.71 Dr. Ravindra S. Bhise produced Postmortem Notes at Exh.72. As per this Note also, deceased had 90% second and third degree burns and the cause of death was "Shock following burns". 9. However, this is an exceptional case of more than one investigations. In chronological order of events taken place, facts of both the investigations are required to be narrated. As aforesaid, on receiving information from Civil Hospital, Kheda, Town Police Station of Kheda, in turn, informed Matar Police Station by Vardhi. At about 10.30 on 15.2.1992, it is revealed that Matar Police Station, made arrangements to send Head Constable of Matar Police Station - Dalpatsinh to Kheda Civil Hospital for necessary action. In the meantime, PSI Kumpawat of Matar Police Station, who has played a star role in the prosecution story, reached Matar Police Station at 10.40. He was examined as Court Witness No.3 - Exh.91. According to him, in pursuance of this Station Diary entry of Matar Police Station, receiving information from Kheda Town Police Station, he rushed, for the reasons best known to him, to the scene of incident, where according to this witness, Ramilaben, Court Witness No.1, was present, in the house of Pragneshkumar, who identified the place of incident to be the backyard of the house of Pragneshkumar. PSI Kumpawat with two panchas prepared the panchnama of the scene of incident to be the backyard of the house of Pragneshkumar and that panchnama is produced at Exh.35, and it is mentioned in the panchnama that the place of incident was shown by Ramilaben Jaykarbhai, where there was a smell of kerosene, two buckets were found full of water and water was smelling kerosene. This panchnama denotes that this is the place where deceased Pragneshkumar poured kerosene on himself and committed suicide. One small mug was also found smelling of kerosene, and according to this panchnama, Ramilaben Jaykarbhai stated that the mug belonged to her. Mr. Kumpawat, PSI, recorded several statements and at about 12.00 he entered an accidental death entry in Matar Police Station Diary. No offence was registered by him against any of the accused. He prepared a report of accidental i.e. suicidal death and submitted the same to his superiors. This was one investigation or an enquiry in the matter. 10. In the meantime, Mohanbhai Kalidas Mecwan, father of deceased Pragneshkumar, reached Matar, in the evening of 15th February, 1992, where dead body of Pragnesh was brought and came to know about the unfortunate incident. He also came to know that this was not and accidental death. He attempted to vent his grievances before the concerned authorities till the level of Home Ministry, repeatedly requesting that the death of his son was an offence and not an accidental death. He filed so many applications, and couple of applications are on record, implorement which shows the outcry and of the agony of the helpless father, whose son was brutally burnt alive. It appears that as late as in April 1992, some authorities took the grievance of the father of the deceased Mohanbhai Kalidas Mecwan, in consideration and in pursuance of that, Divisional Police Superintendent Mr. Naik ordered Mr. Fatesinh S. Kant, Circle Police Inspector to contact Mohanbhai Kalidas Mecwan and to give him an opportunity of being heard in the matter. In this exercise, on 27th April, 1992, First Information Report i.e. complaint of Mohanbhai Kalidas Mecwan came to be recorded by Mr. Khant, Circle Police Inspector, regarding the homicidal death of his son, which was registered at Matar Police Station, vide Matar Police Station Crime Register No.83 of 1992 and investigation came into motion. CPI Mr.Khant investigated this crime, obtained Dying Declarations of the deceased, recorded the statements of the witnesses and came to believe that a homicidal death was committed. Therefore, a charge sheet came to be filed before the learned J.M.F.C., Matar, for the offences punishable under Section 302 read with Section120-B of the IPC. The case being triable by the Court of Sessions, the case was committed to Court of Sessions, Kheda at Nadiad. In the above said charge sheet, following 11 persons were the accused : (1) Dahyabhai Ashabhai Khristi Parmar (2) Pushpaben, daughter of Dahyabhai Ashabhai Khristi Parmar (3) Ravinaben, Wife of Dahyabhai Ashabhai Khristi Parmar (4) Hasmukhbhai Ashabhai Khristi Parmar (5) Ramilaben, wife of Hasmukbhai Ashabhai Khristi Parmar (6) Rameshbhai Ashabhai Khristi Parmar (now dead) (7) Gersombhai Yakubbhai Khristi Parmar (8) Sulemanbhai Daudbhai Khristi Parmar (9) Mariyamben, widow of Ashabhai Morarbhai Khristi Parmar (10) Daudbhai Shivabhai Khristi Parmar (11) Elisaben, wife of Yusufbhai Isudas Khristi Parmar 11. After framing of the charge, since the accused pleaded not guilty, a trial was conducted by learned Addl. Sessions Judge, Kheda at Nadiad, in Session Case No. 195 of 1983. Prosecution examined 11 witnesses : (1) PW-1 Vinodbhai Ramjibhai Toliya, Exh.27 (2) PW-2 Dr.Sanjay Vasantrao Kolte, Exh.43 (3) PW-3 Ashwinbhai Vasudev Dave, Exh.58 (4) PW-4 Jaykarbhai Mohanbhai Mecwan, Exh.61 (5) PW-5 Mohanbhai Kalidas Mecwan, Exh.62 (6) PW-6 Dr.Ravindra S. Bhise, Exh.71 (7) PW-7 Patel Suryankantbhai Shivarambhai Exh.73 (8) PW-8 Jakibhai Kalidasbhai Mecwan, Exh.75 (9) PW-9 Bhimsinhbhai Chaturbhai, Exh.78 (10) PW-10 Kailashben Ambalal, Exh.79 (11) PW-11 Fatesinh S.Khant, Exh.82 and also relied on documentary evidence produced. After the evidence was over, learned Addl. Sessions Judge thought that for just decision of this case, some more witnesses were necessary to be examined, which have not been examined by the prosecution and, therefore, learned Addl. Sessions Judge passed order, produced at Exh.85, to examine the following three Court Witnesses: (1) Court Witness No.1 Ramilaben Jaykarbhai Exh.89 (2) Court Witness No.2 Lataben Jakhibhai Exh.90 (3) Court Witness NO.3 I.M. Kumpawat - Exh.91 12. After hearing both the sides, learned Addl. Sessions Judge came to the conclusion that accused No.2 Pushpaben appears not to have taken part in the incident willingly and since accused No.3 Ravinaben, wife of Dahyabhai Ashabhai Khristi; accused No.7 Gersombhai Yakubbhai Khristi; and accused No.9 - Mariyamben, widow of Yasufbhai Isudas Khristi, were not named in the Dying Declaration recorded by Dr.Kolte, accused No.2 Pushpaben, accused No.3 Ravinaben, accused No.7 Gersombhai Yakubbhai and accused No.9 Mariyamben, were required to be acquitted, and hence, learned Addl. Sessions Judge acquitted these four accused, while accused No.6 Rameshbhai Ashabhai Khristi Parmar expired during pending the trial, the trial came to be abated against him. Remaining accused - accused No.1 Dahyabhai Ashabhai Khristi Parmar, accused No.4 Hasmukbhai Ashabhai Khristi Parmar, accused No.5 Ramilaben, wife of Hasmukhbhai Ashabhai Khristi, accused No.8 Sulemanbhai Daudbhai Khristi Parmar, accused No.10. Daudbhai Shivabhai Khristi Parmar and accused No.11 Elisaben, wife of Yusufbhai Isudas Khristi Parmar, came to be convicted by learned Addl. Sessions Judge for the offences punishable under Section 302 read with Section 120-B of the Indian Penal Code and punished each of them for life imprisonment and fine, both. This judgment and order is dated 8th June, 1998. 13. Being aggrieved and dissatisfied with the above said judgment and order of the learned Addl. Sessions Judge, Kheda at Nadiad, in Session Case No. 195 of 1993, original accused No. 5 Ramilaben, Wife of Hasmukhbhai Ashabhai Khristi and original accused No. 11 Elisaben, wife of Yusufbhai Isudas Khristi, both filed Criminal Appeal No. 591 of 1998, while original accused No.1 Dahyabhai Ashabhai Khristi, original accused No.4 Hasumukhbhai Ashabhai Khristi, original accused No.8 Sulemanbhai Daudbhai Khristi, and original accused No.10 Daudbhai Shivabhai Khristi, preferred Criminal Appeal No.686 of 1998. 14. Both the appellants i.e. Ramilaben and Elisaben of Appeal No.591 of 1998 are on bail by an order of this court, while 4 appellants of Appeal No. 686 of 1998 are in jail. Since, both the appeals have arisen from the same judgment and order, require to be heard together and disposed of by this common judgment. 15. Before we deal with the contentions, it is required to be noted that when appeals came up for hearing before this court, Criminal Misc. Application No. 2618 of 1999 was filed by the appellants for invoking the provisions of Section 391 of the Code Criminal Procedure, 1973. After hearing the appellants and the respondent State, vide order dated 1st July, 1999, in that Misc.Criminal Application, this court ordered that additional evidence, in the interest of justice, be recorded by the trial court as per the request of appellants. Record was transmitted to the trial court. Thereafter, trial court recorded evidence in shape of defence of the original accused. Accordingly, Criminal Misc. Application No. 480 of 1999 was filed before the Sessions Judge at Nadiad, in Session Case No. 195 of 1993, and in pursuance of the order passed thereon, three defence witnesses were examined on behalf of original accused No.1 Dahyabhai Ashabhai Khristi and original accused No.8 - Suleman Daudbhai Khristi, respectively, in Criminal Appeal No. 686 of 1998. The witnesses who are examined by the defence are as under : DW.1 -Exh.9 - Balkrishna Bhailalbhai Khadiya, Deputy Engineer in Irrigation Department, in which Suleman Daudbhai was working as Assistant, and a fact is sought to be established that on the date of the incident, original accused No.8 Suleman Daudbhai was at his place of duty. He has produced a certificate - Exh.10. Exh.12 Defence Witness No. 2 was examined at Exh.12 and he is Chandubhai Dhulabhai Prajapati. He is the Dy. Executive Engineer of Irrigation Department and he signed the certificate at Exh.10, stating that Suleman Daudbhai - accused No.8 was on duty on 15.2.1992. DW-3 Exh.14 Defence Witness No.3, Exh.14, is examined, and she is Nainaben Rathilal Bhrambhatt, a Clerk in 5th Jt. Civil Judge (SD) Court at Nadiad, who has produced copy of affidavit-in-replies in Civil Suit No. 338 of 1993 and 339 of 1992, filed by Dahyabhai Ashabhai Khristi and Suleman Daudbhai Khristi. Detailed appreciation will be undertaken hereinafter regarding these witnesses. Defence Witness No.4 is examined at Exh.19 and he is Bhagawanbhai Kanjibhai Makwana. He was Mamlatdar, Krushipanh, Khambhat and from the record he certified that on 15.2.1992, accused No.1 Dahyabhai Ashabhai Khristi effected recoveries of agricultural dues, because he was Talati at that time, from village agriculturists of village Nandoli. Some statements of those agriculturists are produced from Exhibits 22 to 28. This plea of alibi will be dealt with at the appropriate stage. 16. Before we record the contentions canvassed on behalf of the appellants, we would like to state that what should be the approach of the first appellate court when the accused are charged of serious crimes. We are conscious that the appellate court must look into the evidence adduced in the case and arrive at an independent conclusion regarding whether such evidence is trustworthy and could be relied upon, and whether the case of the prosecution is proved beyond reasonable doubt or not, in such offence. The credibility of witness has to be judged by the appellate court, and drawing inference from proved facts, should no doubt, the appellate court as well like trial court, has to be satisfied affirmatively that the case of the prosecution is substantially true and the guilt of the accused could be proved beyond all reasonable doubts because the presence of innocence of accused starts and continues right through until they are held guilty by the final court of appeal and that presumption could never be strengthened by an acquittal nor weakened by a conviction in the trial. We are conscious that the judicial approach in dealing with the case where the accused is charged of murder under Section 302, has to be cautious, circumspect and careful and, therefore after recording the contentions of the appellants, the evidence on record and all relevant material circumstances are required to be carefully examined, dealing with the contentions of the appellants to arrive at a conclusion that what is acceptable as truth from the prosecution case. 17. Learned Advocate Mr.J.M.Buddhbhatti with learned Sr. Advocate Mr. M.R.Barot for appellant No.1 and Learned Advocate Mr.J.S. Yadav for appellant No.2 in Criminal Appeal No. 591 of 1992 appeared. Learned Senior Counsel Mr. Maganbhai Barot with Ms. Krishna V. Barot, for accused in Criminal Appeal No. 686 of 1998 and learned APP Mr. K.P. Raval for the respondent State in both the Appeals appeared. Learned Senior Counsel Mr. M.R. Barot launched vehement typhoon attacks on the prosecution case and the evidence, which may be summarised as under : (i) Contemporary record and the documents show that Pragneshkumar died either accidental or suicidal death and the attention was drawn to Yadis written by Kheda Town Police Station to Hospital and Executive Magistrate. Attention is also drawn to Station Diary Entry in Kheda Town Police Station. The fact, which is mentioned in the Diary that Pragnesh got the flames because he was lighting bonfire for protecting himself from cold. Attention is also drawn to Exh. 28 Telephone Vardhi alleged to have been recorded by Head Constable, Kheda Police Station, on receiving information from Dr. Kolte, in-charge Doctor Kheda Civil Hospital. Exh. 31 and 36, Kheda Police Station Diary; Exh.32 Yadi to Executive Magistrate of Kheda; and Exh.37 Entry of Telephone Register of Matar Police Station. It was contended that in all the above documents, it is stated that Dr. Kolte informed Kheda Police Station that Pragneshkumar, resident of Matar, was burnt while lighting a bonfire for protecting him from cold and he was admitted to the hospital and his general condition was good. P.S.O. Kheda one Bhimsingh, who is examined at Exh.78 as PW9 received above information on phone from Dr. Kolte of Kheda Civil Hospital. He noted the information as Telephone Vardhi which is at Exh.27. Bhimsinh sent a Yadi to Executive Magistrate