CR.A/387/2000 1/18 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 387 of 2000 For Approval and Signature: HONOURABLE MR.JUSTICE R.P.DHOLAKIA : HONOURABLE MR.JUSTICE KS JHAVERI : ========================================================= 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 ? ========================================================= CHIMANBHAI MAGANBHAI RATHODIYA - Appellant(s) Versus STATE OF GUJARAT - Opponent(s) ========================================================= Appearance : THROUGH JAIL for Appellant(s) : 1, MR CHIRAG M PAWAR for Appellant(s) : 1, MR HL JANI APP for Opponent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE R.P.DHOLAKIA and HONOURABLE MR.JUSTICE KS JHAVERI Date : 28/01/2008 CR.A/387/2000 2/18 JUDGMENT ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE KS JHAVERI) 1.0 This Appeal is directed against the judgment and order dated 7th April, 2000 passed by the learned Addl. Sessions Judge, Vadodara in Sessions Case No. 73 of 1999 whereby, the appellant was convicted for the offence punishable u/s. 302 of the Indian Penal Code, 1860 [for short, “the I.P.C.”] and sentenced to undergo imprisonment for life with fine of Rs.1000/- and in default of payment of fine, simple imprisonment for a further period of three months. 2.0 The brief facts of the prosecution case are as under ; 2.1 On 11.12.1998 the children of Chandubhai Maganbhai, son – Arjun and daughter – Laxmi, had gone to watch Television in a nearby locality. Some time CR.A/387/2000 3/18 JUDGMENT later, they both returned to their house. At that time, the appellant, who is the uncle of said Arjun, inquired from Arjun as to why he had eaten away the entire food and inflicted a stick blow on Arjun. Thereafter, he poured kerosene on Arjun and set him ablaze. As a result thereof, Arjun sustained severe burn injuries and he was taken to S.S.G. Hospital, Vadodara for necessary treatment. 2.2 As it was a medico-legal case, the Police Constable who was on duty at the relevant point of time, informed about the said incident to Vadodara Taluka Police Station. On receipt of the said information, an entry to that effect was made in the Station Register. Thereafter, the Investigating Officer went to S.S.G. Hospital and recorded the statement of Arjun. Necessary arrangements were made for recording his dying declaration and subsequently, the same came to be recorded. On 16.12.1998, Arjun succumbed to the CR.A/387/2000 4/18 JUDGMENT injuries and his statement was treated as a complaint and it was registered as I – C. R. No. 148 of 1998 for offence punishable u/s. 302 of the I.P.C. 2.3 On the said complaint, necessary preliminary investigation was carried out. 'Panchnama' of the scene of offence was done and 'muddamal' articles were collected. Inquest 'panchnama' was done. 'Marnottar' form was filled up and necessary arrangements were made for sending the dead body for performing post- mortem. The clothes on the dead body of the deceased were seized by way of a separate 'panchnama'. Further investigation was carried out and statements of several witnesses were recorded. The 'muddamal' articles so collected were sent to F.S.L. for examination. On receipt of the F.S.L. Report, PM Report and other Reports, they were kept in the investigation file. As cogent evidence was found against the appellant, he was arrested. Arrest 'panchnama' was done in the presence of 'panchas' and CR.A/387/2000 5/18 JUDGMENT after completing necessary formalities, the appellant was sent to judicial custody. 2.4 On completion of investigation, charge-sheet was filed against the appellant before the Court of learned 3rd Judicial Magistrate, First Class, Vadodara and as the case was exclusively triable by the Court of Sessions, the same was committed to the Sessions Court, Vadodara and it was numbered as Sessions Case No. 73 of 1999. The matter was then transferred to the Court of learned Addl. Sessions Judge for disposal on merits. The learned Addl. Sessions Judge framed the charge and as the appellant pleaded not guilty to the charge leveled against him, trial was initiated. 3.0 The prosecution has examined in all thirteen witnesses in order to prove the guilt against the appellant, namely, PW – 1 Rameshbhai Virjubhai Rathwa at Exhibit – 9, PW – 2 Chandubhai Maganbhai CR.A/387/2000 6/18 JUDGMENT Rathodia at Exhibit – 10, PW – 3 Ansuyaben Thakorbhai Rathodia at Exhibit – 12, PW – 4 Ghanshyam Chandulal Brahmbhatt at Exhibit – 13, PW – 5 Somabhai Khatarbhai Rathodia at Exhibit – 16, PW – 6 Dr. Vaishakhiben Y. Shukla at Exhibit – 17, PW – 7 Dr. Ranjit Shantibhai Chaudhary at Exhibit – 19, PW – 8 Laxmiben Chandubhai Rathodia at Exhibit – 20, PW – 9 Harishbhai Ramanbhai Patel at Exhibit – 21, PW – 10 Devjibhai Muljibhai Vankar at Exhibit – 23, PW – 11 Pravinbhai Trikambhai Jadhav at Exhibit – 25, PW – 12 Fulsinh Ratansinh Parmar at Exhibit – 28 and PW – 13 Janaksinh Jaywantsinh Sarvaiya at Exhibit – 30. 3.1 The prosecution has also relied upon several documentary evidence, more particularly, the evidence in the form of complaint at Exhibit – 31, Dying Declaration at Exhibit – 15, PM Report at Exhibit – 18, F.S.L. Report at Exhibit – 34 and the 'panchnama' of the scene of offence at Exhibit – 22. CR.A/387/2000 7/18 JUDGMENT 3.2 On submission of the closing ‘purshis’, the further statement of the appellant was recorded u/s. 313 of the Code of Criminal Procedure, 1973. After hearing learned counsel for the respective parties, the learned Addl. Sessions Judge passed the impugned judgment and order convicting the appellant for the offence in question and imposed sentence as narrated in the earlier part of this judgment. Hence, the present Appeal. 4.0 Mr. Chirag M. Pawar learned Advocate for the appellant has contented that there is no evidence on record except the dying declaration of the deceased at Exhibit – 15 to connect the appellant with the alleged offence in question. He has submitted that the said dying declaration has been been recorded within a time- limit of twenty minutes of the receipt of 'wardhi' by the Executive Magistrate which creates serious doubts CR.A/387/2000 8/18 JUDGMENT about its genuineness. Therefore, the same could not be relied upon. 4.1 Learned Advocate has further contented that the deceased had sustained burn injuries as a result of an accident which had taken place while lighting up a bonfire after pouring kerosene in it. He has submitted that as it was winter season and the deceased was sitting near the bonfire prepared by the appellant, he had sustained the injuries in question. Therefore, there was no intention or motive behind the commission of the alleged offence in question as the same was an accidental death. 4.2 Learned Advocate has further submitted that there is no evidence on record worth the name to connect the appellant with the alleged offence in question. He has contented that looking to the overall oral as well as documentary evidence on record, this is a CR.A/387/2000 9/18 JUDGMENT fit case wherein the appellant deserves to be acquitted from the alleged offence in question by granting him the benefit of doubt. 5.0 Mr. H. L. Jani learned APP has submitted that the oral evidence on record in the form of deposition of the sister of the deceased, Laxmiben Chandubhai Rathodia as PW – 8 at Exhibit – 20 and documentary evidence in the form of statement of the deceased recorded by the police at Exhibit – 31 and the dying declaration at Exhibit – 15 clearly establish the guilt of the appellant. He has, therefore, submitted that no interference is required from this Court in this Appeal. 6.0 We have heard learned counsel for the respective parties and have perused the entire oral as well as documentary evidence available on record. The statement of the deceased recorded on 12.12.1998 by the police authority when the deceased was admitted in CR.A/387/2000 10/18 JUDGMENT S.S.G. Hospital, Vadodara is at Exhibit – 31. The said statement given by the deceased has been treated as a complaint in this case. It may be noted that in the said statement, the deceased has categorically stated that on 11.12.1998, at around 2100 hrs., while he was at his house, the appellant poured kerosene on the deceased for some reason and thereafter, set him ablaze. As a result thereof, the deceased sustained burn injuries on his entire body and he was brought to S.S.G. Hospital, Vadodara by his father – Chandubhai Maganbhai Rathodia [PW – 2 at Exhibit – 10] and one Chandrakant Bhagwanbhai Patel. 7.0 It may be noted that on the same day, i.e. on 12.12.1998, the deceased had also narrated the history of the alleged incident to the Medical Officer – Dr. Ranjit Shantibhai Chaudhary, who was on duty at the relevant point of time in S.S.G. Hospital, Vadodara, which is evident from the deposition of the said Medical Officer CR.A/387/2000 11/18 JUDGMENT as PW – 7 at Exhibit – 19. The said Medical Officer has been cross-examined by the other side before the Court below. However, nothing contrary has come out which may lead us to believe his evidence to be untrue or unreliable. 8.0 The dying declaration of the deceased recorded by the Executive Magistrate [PW – 4 at Exhibit – 13] on 12.12.1998 is at Exhibit – 15. In the said dying declaration, the deceased has categorically stated that on 11.12.1998, at around 2100 hrs., while he was sleeping on the floor of the veranda of his house, the appellant came there and poured kerosene on him and thereafter, set him ablaze. As a result thereof, he sustained burn injuries on his face and stomach portion of the body. The deceased has also categorically stated that he was brought to the Hospital by his father – Chandubhai Maganbhai Rathodia [PW – 2 at Exhibit – 10]. CR.A/387/2000 12/18 JUDGMENT 9.0 From the aforesaid documentary evidence, viz. the statement of the deceased recorded by the police at Exhibit – 31 and the dying declaration at Exhibit – 15 and oral evidence in the form of deposition of the Medical Officer as PW – 7 at Exhibit – 19, it is established beyond doubt that on 11.12.1998, at around 2100 hrs., while the deceased was sleeping on the floor of the veranda of his house, the appellant came there and poured kerosene on him and thereafter, set him ablaze. As a result thereof, the deceased sustained severe burn injuries and was taken to S.S.G. Hospital, Vadodara. 10.0 At this stage, it is pertinent to note that the story narrated by the deceased in the form of his statement before the police authority at Exhibit – 31 and dying declaration at Exhibit – 15, gets support from the evidence led by the Executive Magistrate, Ghanshyam Chandulal Brahmbhatt, who has been examined as PW CR.A/387/2000 13/18 JUDGMENT – 4 at Exhibit – 13 and from the evidence led by the father of the deceased - Chandubhai Maganbhai Rathodia [PW – 2 at Exhibit – 10]. Both these witnesses have been cross-examined before the Court below. However, nothing incriminating has come out, which may lead us to believe their evidence to be unreliable. 11.0 The prosecution has placed heavy reliance upon the evidence of PW – 8 Laxmiben Chandubhai Rathodia at Exhibit – 20 whom it claims to be an eye- witness to the alleged incident in question. This witness is the sister of the deceased and was aged 13 years at the time when the alleged incident in question took place. In her deposition, PW – 8 has stated that on the date of the alleged incident in question, when she and her deceased – brother had returned to their house after watching Television in their neighbourhood, the appellant had compelled the deceased to leave the house on the ground that the deceased had eaten away the CR.A/387/2000 14/18 JUDGMENT entire food. Subsequently, the appellant brought the deceased back to the house during which time the appellant was abusing the deceased. She has further categorically deposed that after bringing the deceased back to the house, the appellant compelled the deceased to lay down under a tree situated in the veranda of the house and poured kerosene on him and thereafter, set him ablaze. She has further deposed that the appellant used to abuse her father regularly and that on the date of the alleged incident in question, her father had drunk and had left the house and had returned only on the next day morning. 11.1 This witness has also been cross-examined at length before the Court below. It is true that in her cross-examination this witness has stated that the deceased as well as the appellant had sustained burn injuries on account of an accident that has resulted while pouring kerosene in the bonfire. However, it is CR.A/387/2000 15/18 JUDGMENT required to be noted that in her cross-examination this witness has categorically stated that on account of the pressure put on her by her father [PW – 2 at Exhibit – 10], she had not narrated certain facts in her statement before the police. She has also stated that she has deposed as per the instructions given by her father [PW – 2 at Exhibit – 10]. 11.2 PW – 8 was aged thirteen years at the time when the alleged incident in question took place. The evidentiary value of the deposition of this witness, more particularly, what has come out from her cross- examination, has to be considered in the background of the oral as well as documentary evidence discussed in the earlier part of this judgment, viz. the deposition of PW – 7 Dr. Ranjith Shantibhai Chaudhary at Exhibit – 19, the statement of the deceased before the police authority at Exhibit – 31 and the dying declaration at Exhibit – 15. Moreover, this witness has admitted that she has CR.A/387/2000 16/18 JUDGMENT deposed as per the instructions given by her father [PW – 2 at Exhibit – 10]. 12.0 Keeping the aforesaid aspect in our minds and when we find that there is sufficient evidence on record, both oral as well as documentary, pointing towards the guilt of the appellant, we do not feel that the evidence which has come from the cross-examination of PW – 8 at Exhibit – 20, shall have any bearing or shall be of any help in rescuing the appellant from his criminal liability. 13.0 Apart from the above, the medical evidence on record in the form of PM Report of the deceased at Exhibit – 18 and the deposition of the Medical Officer – Dr. Vaishakhiben Yashwantrai Shukla, who has been examined as PW – 6 at Exhibit – 17, also support the case of the prosecution. The PM Report at Exhibit – 18 states the cause of death as shock following burns and the Medical Officer, who has performed the post- CR.A/387/2000 17/18 JUDGMENT mortem, has categorically opined that the injuries were ante-mortem. Therefore, we have no hesitation in holding that the deceased died a homicidal death. 14.0 In view of the above discussion, we are of the opinion that the Court below was completely justified in convicting the appellant for the alleged offence in question. There is sufficient cogent evidence on record, both oral as well as documentary, which clearly establish the guilt of the appellant beyond doubt. We are in complete agreement with the reasonings given by, findings arrived at and the resultant order of conviction recorded by the Court below and therefore, find no reasons to interfere with the same. 15.0 For the foregoing reasons, the Appeal is dismissed. Office is directed to send the Records & CR.A/387/2000 18/18 JUDGMENT Proceedings to the trial Court concerned forthwith. [R. P. DHOLAKIA, J.] [K. S. JHAVERI, J.] Pravin/*