CR.A/862/1998 1/39 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 862 of 1998 For Approval and Signature: HONOURABLE MR.JUSTICE A.L.DAVE 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 ? ========================================================= DUNGARSINH NANJIBHAI PRAJAPATI & 1 - Appellant(s) Versus STATE OF GUJARAT - Opponent(s) ========================================================= Appearance : MR KB ANANDJIWALA for Appellant(s) : 1 - 2. PUBLIC PROSECUTOR for Opponent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE A.L.DAVE and HONOURABLE MR.JUSTICE BANKIM.N.MEHTA Date : 03/07/2006 ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE A.L.DAVE) CR.A/862/1998 2/39 JUDGMENT The present appeal arises out of the judgment and order rendered by the Presiding Officer of City Sessions Court No.6, Ahmedabad in Sessions Case No.141 of 1995 on 31st July, 1998, convicting the appellants for offence punishable under Section 302 read with Section 34 of the Indian Penal Code and under Section 342 of the Indian Penal Code read with Section 34 of the Indian Penal Code and sentencing them to undergo rigorous imprisonment for life and to pay a fine of Rs.1,000/- each and, in default in payment thereof to undergo further rigorous imprisonment for a period of two months. 2. As per the prosecution case, the incident occurred in a Bungalow No.8, Om Park Society at Vatva in Ahmedabad on 19th September, 1994 at about 9:00 p.m. In that bungalow, Godavariben (appellant No.2) was staying with her two sons, Jagdish and Dungarsinh and daughter-in-law, Rekhaben, wife of Jagdish. Marriage between Jagdish and Rekha was solemnized about four months prior to the date of incident. As per the prosecution case, on the day of incident, Godavariben picked up a quarrel with the deceased on allegation that, the deceased used to spend money after herself, which was given to her by her brother-in-law, Dungarsinh (accused-appellant No.1), which allegation the deceased denied and went into the CR.A/862/1998 3/39 JUDGMENT house to cook. The house consisted of only one room and an open courtyard in front of the house known as 'osari' in the local vernacular. 2.1 As per the prosecution case, while the deceased was cooking Roties on the stove, appellant No.2 came into the house, poured kerosene on the body of the deceased from the kerosene tin, which was lying nearby and, thereafter, appellant No.2 came out of the room and shut the deceased inside. The room has a window on the northern wall. Appellant No.2, therefore, went to that window where accused No.1 also joined her. That window is of the size of 3'10" X 3' at a height of 2'7" from the floor. Window is grilled with vertical and horizontal bars fixed at a distance of 3 inches. It is the case of the prosecution that appellant No.1 ignited a matchstick and then handed it over to appellant No.2, who in turn, threw it on the deceased through the gaps in the grill of the window. The room is of the size of 11'4" x 10'9". The deceased caught fire with the matchstick thrown by appellant No.2 and raised shouts. On hearing the shouts, the neighbours rushed to the spot and noticed the deceased lying on the floor in the osari in front of the house. At that time, appellant No.2 also rushed to the spot. The fire on the deceased was extinguished by throwing quilts, CR.A/862/1998 4/39 JUDGMENT etc. In the meantime, husband of the deceased, Jagdish also arrived and, the husband and neighbours, took the deceased to the hospital for treatment. 2.2 At the hospital, firstly, history was recorded in the outdoor case papers, then, the deceased was shifted to the Burns Ward. In the meantime, Police Constable on duty at the hospital, was also, informed who arrived, who interrogated the deceased and on basis of information revealed by the deceased, made an entry in Wardhi Book and gave a Wardhi to the Police Station, which is also recorded by the Police Station Officer in the Station Diary and, P.S.O. in turn, informed the Higher Officer, who rushed to the hospital. 2.2.1 P.S.I., Gosai, during this course also sent an intimation (Yadi) to the Executive Magistrate summoning him, to record the dying declaration of the deceased. The Executive Magistrate arrived at the hospital and after verification as to identity recorded the dying declaration of the deceased in question answer form. 2.3 The Police made investigation in the case and recorded requisite statements etc. Panchnama of the place of CR.A/862/1998 5/39 JUDGMENT offence was also drawn. An officer of the F.S.L. was summoned at the place, who examined the place of incident and prepared a report and, ultimately, the Investigating Officer, having found sufficient material against the appellants filed charge-sheet in the Court of Metropolitan Magistrate, Ahmedabad. Since the case against the appellants was triable exclusively by the Court of Sessions, the case was committed to the City Sessions Court and Sessions Case No.141 of 1995 came to the registered. 2.4 Charge was framed against the appellants at Exh.2. They pleaded not guilty to the charge and claimed to be tried. 2.5 The trial Court after recording evidence, recorded statement of accused persons under Section 313 of the Criminal Procedure Code, where circumstances against the appellants were put to them. Appellant No.2 submitted that she is suffering from paralysis and is not in a position to perform her daily chores and submitted that the evidence was not correct. 2.6 Learned Additional City Sessions Judge, Ahmedabad, ultimately, after appreciation of evidence, came to a conclusion that the prosecution was successful in establishing the charges CR.A/862/1998 6/39 JUDGMENT against the accused (appellants) with which they were charged and recorded conviction and passed the order of sentence as stated in the earlier part of judgment. 3. The case of the appellants is canvassed by learned Advocate, Mr.Anandjiwala and is opposed to by learned A.P.P., Mr.Prachchak. The record and proceedings are before us and we have been taken through the record and proceedings by both the sides during course of their respective submissions. 4. Learned Advocate, Mr.Anandjiwala, has contended that the case of the prosecution depends on two material aspects. One the dying declarations of the deceased and the circumstantial evidence. According to Mr.Anandjiwala, as per prosecution case, there are five dying declarations. But, according to Mr.Anandjiwala,, the dying declarations are inconsistent and they improve upon the story as and when they progress. He submitted that witnesses before whom oral dying declarations are alleged to have been made have not supported the prosecution case and are treated as hostile to the prosecution. Mr.Anandjiwala, submitted that the dying declaration in form of the history given to the doctor, the F.I.R. and the dying declaration before Executive Magistrate are CR.A/862/1998 7/39 JUDGMENT inconsistent and story revealing therefrom is improbable. He submitted that the story emerging from the dying declaration making allegation against the appellants gets falsified or is rendered improbable by the circumstantial evidence in the case. Mr.Anandjiwala, submitted that undoubtedly the lady has lost life out of burn injuries but, the circumstances do rule out of the possibility of the burns being homicidal. Mr.Anandjiwala, submitted that conduct of the deceased, as well as, the appellants, as shown in the dying declaration is unnatural and render the allegations made in the dying declaration improbable. 4.1 Mr.Anandjiwala, submitted that appellant No.2 suffers from paralysis and she could not have poured kerosene on the deceased, as is alleged. Mr.Anandjiwala, submitted that, even if, the story of the prosecution is accepted at face value, there was no resistance on part of the deceased against the action of appellant No.2 in pouring kerosene over the deceased. This conduct on part of the deceased is also unnatural and unbelievable. Mr.Anandjiwala, submitted that, if there was no resistance from the deceased when appellant No.2 poured kerosene on her and, if appellant No.2 had intention to set her to fire, there was no need for appellant CR.A/862/1998 8/39 JUDGMENT No.2 to go out of the room and, then set the deceased to fire by throwing a burning matchstick from the window. Mr.Anandjiwala, submitted further that, the theory of appellant No.1 lighting the matchstick and then handing over the matchstick to appellant No.2 and then appellant No.2 throwing matchstick through the window, is also an unnatural conduct. Mr.Anandjiwala, submitted that the panchnama of the place of incident and the report of the F.S.L. Officer indicates that the place where the deceased sustained burns is at a distance of about 5 to 7 feet from the window. The window is fitted with a grill having vertical and horizontal bars fitted at the distance of three inches leaving a gap of three inch through which the matchstick is alleged to have been thrown. Mr.Anandjiwala, submitted that, it is difficult, if not possible to throw a matchstick to a distance about 7 feet. He also submitted that, even if it is thrown, a burning matchstick may not remain lit till it reaches the deceased and therefore, theory becomes improbable. 4.2 Mr.Anandjiwala, submitted that appellant No.2 is suffering from paralysis and there is no dispute on that aspect. She could not have lifted the kerosene tin and poured the kerosene. She could not have thrown the burning matchstick CR.A/862/1998 9/39 JUDGMENT as is alleged and the theory propounded in the dying declaration is, therefore, improbable. 4.3 Mr.Anandjiwala, submitted further that, as per the dying declaration, the deceased was locked into the house after kerosene was poured over her and then was set ablaze through the window. But, when the neighbours came, they noticed her lying in the osari and prosecution has led no evidence to show as to how the deceased came out of the room. Mr.Anandjiwala, submitted that, it is not the case of the prosecution that any of the accused helped her to come out and the Panchnama of the place of incident indicates that, there was no damage to the door which could be out of a forced opening by the deceased. Question therefore is, how the deceased came out of the room. If, she came out from the room without causing any damage to the door then, her story of being locked into the room by appellant No.2 gets falsified. Mr.Anandjiwala, submitted that there were no traces of kerosene found on the floor. Everything was in orderly fashion and, therefore, there was no resistance from the deceased. Mr.Anandjiwala, submitted that this is an unnatural conduct, which would render the story grossly improbable. Mr.Anandjiwala, submitted further that, appellant No.1 is not CR.A/862/1998 10/39 JUDGMENT attributed any motive by the prosecution. He could have no motive or grievance against the deceased, if his conduct is seen. Even, as per the prosecution case, he used to handover his earnings to the deceased and he had no dispute on that aspect with the deceased. If he had so-much of faith or trust in the sister-in-law, he could have no grudge or grievance against her, which would prompt him to share a common intention with the appellant No.2 and assist appellant No.2 in setting the deceased ablaze. Mr.Anandjiwala, submitted that, as per the prosecution case, clothes of both the appellants were found to carry traces of kerosene. As per prosecution case, it was only appellant No.2, who poured kerosene on the deceased. How the traces of kerosene are found on clothes of appellant No.2 has not been explained by the prosecution. It was also submitted that the conduct of the deceased is also not natural in showing no resistance when kerosene is poured, in making no attempt to shout for help and, in making no attempt to protect herself or to escape from the place. Mr.Anandjiwala, submitted that, any person who fears danger to his or her life would try to resist, would try to escape, would try to have help, but, in the instant case, she has done nothing, which is quite unnatural. CR.A/862/1998 11/39 JUDGMENT 4.4 Mr.Anandjiwala, submitted that overall outcome of the prosecution case is that the dying declarations are inconsistent and show gradual improvement in the story. If the test of probability is applied, they render the story emerging from dying declaration improbable. The dying declarations and circumstances are the only evidence on which the conviction is recorded. Mr.Anandjiwala, submitted that considering various pronouncement of this Court and the Supreme court replied upon by him, appeal may be allowed. 5. The decisions can be discussed by this Court in the paragraphs to come. 6. Mr.Prachchak, has resisted this appeal. According to him, as per the law on dying declaration as settled by the Apex Court, conviction can be founded on solitary evidence in form of dying declaration. He submitted that there is no need to look for corroborative evidence. He submitted that here is a case where a young lady, aged about 19 years, who has just entered her marital life four months back, has met with her death in an unnatural way. The deceased had given consistent dying declarations. Though witnesses before whom oral dying declarations are given have initially not supported the CR.A/862/1998 12/39 JUDGMENT prosecution case, have admitted during cross-examination about the deceased having given oral dying declaration before them. Mr.Prachchak, submitted that human being is not a computer and every time the incident is narrated. Some difference is bound to creep in and it cannot be considered as a serious lapse unless, it goes to the root of the case. Mr.Prachchak, submitted that dying declarations clearly implicate the appellants, though there are minor discrepancies. The dying declarations are consistent so far as the involvement of the appellants is concerned. Mr.Prachchak, submitted that the clothes of the deceased found to have carbon particles referable to the kerosene. The clothes of both the appellants are found to have kerosene traces. The swab taken from the floor of the incident also contains carbon particles referable to kerosene. The place used for making dough contains kerosene, though in small quantity. All these factors support the dying declarations. He submitted that different persons react in different manner in a given set of situation and therefore, simply because the deceased did not react in a particular manner or simply because the appellants are alleged to have not acted in a particular manner, it cannot be said that their conduct is unnatural and, therefore, the story is not doubtful. Mr.Prachchak, submitted further that, there is CR.A/862/1998 13/39 JUDGMENT contemporaneous material in form of medical case papers, Wardhi Book maintained by the hospital and station diary maintained at the Police Station, which clearly implicate the appellants. 6.1 Mr.Prachchak, submitted that the dying declaration has a ring of truth when the deceased does not implicate her husband. He submitted that the depositions of hostile witnesses before whom the oral dying declaration is alleged to have been made, if read as a whole, it is clear that, they admit to have stated before the Police about the dying declaration. Mr.Prachchak, submitted that there is no need to look for corroboration, so far as evidence in form of dying declaration is concerned. Mr.Prachchak, also placed reliance on certain decisions. 6.2 Learned A.P.P., has also submitted that conduct of the appellants in making no attempt to help the deceased either at the place of incident or after she would be taken to hospital also speaks volume about their attitude towards the deceased. 7. We have given a thoughtful consideration to the rival side submissions and have examined the evidence from CR.A/862/1998 14/39 JUDGMENT the perspective canvassed by both the sides. 8. The prosecution case mainly depends on multiple dying declarations, both oral and written. 8.1 The first dying declaration was allegedly made by the deceased before witness-Nathubhai Amrsinh Prajapati (Exh.18) in the rickshaw, when she was being take to the hospital. Witness-Nathubhai has not supported the prosecution and has been declared hostile. He says that on hearing the shouts, he rushed out of the house and saw that deceased- Rekha was burning and was rolling on the floor. He, therefore, pulled out a quilt lying on the cot outside the house and, thereafter he and Jagdish, husband of the deceased, as well as, Jituben took her to the hospital. He says that he did not ask her anything, but, deceased asked him to take her to hospital. 8.2 During cross-examination to the learned Public Prosecutor, the witness has admitted that the deceased told him that her mother-in-law raised a quarrel with her for money matters, abused her, poured kerosene over her and, then locked her in the house and thereafter, her brother-in-law, Dungarsinh ignited a matchstick, gave it to her mother-in-law, CR.A/862/1998 15/39 JUDGMENT who in turn, threw the lighted matchstick over her, as a result of which, her clothes caught fire and she got burnt. 8.3 The second dying declaration is in form of the case history recorded by Dr.Kirit Patel in medical case papers which is produced at Exh.52. The doctor has recorded that the history was given by the patient of alleged homicidal burns at her home before half an hour by her mother-in-law, brother-in-law and sister-in-law. It appears from Exh.52, so also, from the doctor's deposition that, initially it was recorded in the case papers that the burns were caused by mother-in-law, brother- in-law, and other relatives. But, later on the words 'other relatives' is scored out and words 'sister-in-law' are written. It also appears that this change is initialled by the doctor. This dying declaration has also to be considered as an oral dying declaration before the doctor, on basis of which, the doctor has made requisite entry in the case papers. 8.4 The third dying declaration is in form of first information report, which is recorded by P.S.I., Gosai, who is examined at Exh.27 as Prosecution Witness No.10. The F.I.R. is also produced at Exh.28. Witness says that he received information from P.S.O. at about 22:10 hours on 19/9/2004 CR.A/862/1998 16/39 JUDGMENT and, therefore, rushed to L.G. Hospital. He says that he got to the hospital within 15 minutes, got in touch with Dr.Kirit Patel, who introduced him to the patient. As she was conscious, he took an endorsement of the doctor and sent a Yadi to the Executive Magistrate and, thereafter, recorded the F.I.R. of Rekhaben, who was conscious. The deceased told him that her mother-in-law picked up quarrel with her saying that she spent out money after herself which her brother-in-law gave to her. Then she went to the for cooking. At that time, her mother-in- law poured kerosene over her, came out of the house, locked the door and thereafter Dungarsinh, appellant No.1 ignited a matchstick, gave it to Godavariben, appellant No.2, who in turn, threw the said ignited matchstick through the window, which fell on the person of the deceased, as a result of which her clothes caught fire and she sustained burns. The witness says that the F.I.R. was recorded in presence of the doctor, but as both the hands of the deceased were burnt, he could not take her signature. Witness says that thereafter the Executive Magistrate had arrived and recorded the dying declaration of the deceased. 8.5 The next dying declaration is recorded by the Executive Magistrate, Baldevbhai Rambhai Patel, who is CR.A/862/1998 17/39 JUDGMENT examined as Prosecution Witness No.1 at Exh.10. The dying declaration recorded by this witness is at Exh.11. From this dying declaration, it emerges that it was recorded at about 0:15 hours on 20/9/1994. In this dying declaration, the deceased said that on 19/9/1994 at about 9:00 p.m. her mother-in-law (appellant No.2) poured kerosene over her and set her ablaze. She says that her brother-in-law was also present in the room. While giving details of the incident, the deceased appears to have stated that following a quarrel with the mother-in-law, she went into the house, ignited the primus and started cooking Roti, at that time, her mother-in-law came, poured kerosene over her and, then went out of the house, locking her (deceased) in and, thereafter threw the matchstick from the window, which fell on her clothes and caught fire, she therefore raised shouts, therefore, her mother-in-law and neighbours came and threw quilts over her and extinguished the fire. 8.6 The fifth dying declaration is in form of oral dying declaration before the mother of the deceased, Jethiben. Jethiben is examined as Prosecution Witness No.2 at Exh.13. She, however, does not support the prosecution case and was declared hostile. She says that two persons came to her house CR.A/862/1998 18/39 JUDGMENT at Nadiad and told her that Rekha had sustained burns and, therefore, she herself, her brother-in-law, Govindbhai, Ramnikbhai and her son, Jagdish, all went to the hospital at Ahmedabad and met Rekha. She says that she was unconscious, her body was under bandages and she did not respond to questions put to her. She says that she stayed at the hospital for two days and that the deceased was unconscious during this time. On being declared hostile, witness is cross-examined by the learned Public Prosecutor, where she denies to have stated before Police that, her daughter was fully conscious and told her that Godavariben had quarreled with the deceased previous evening at about 9:00 p.m. alleging that, the deceased used to spend out all the money given to her by the brother-in-law, Dungarsinh. Deceased denied that allegation, the mother-in-law therefore, started giving abuses and therefore, the deceased went into the house and started preparing Roti, at that time, the mother- in-law came into the house and poured kerosene over her from the tin and, then went out of the house and locked her in. The brother-in-law was standing in the osari, he ignited the matchstick, gave it to the mother-in-law, who in turn, threw the said ignited matchstick through the window, which fell on deceased clothes and she got ignited. CR.A/862/1998 19/39 JUDGMENT 8.7 Apart from the above five dying declarations, we notice that there is an entry in the O.P.D. Case Papers which is forming part of record and produced at Exh.52. That entry is made at 9:15 p.m. on 19/9/1994 which runs as under. "alleged history of burns at 8:30 p.m. today." We notice that there is no evidence to show as to who recorded this history and at whose behest. There is nothing to infer that this entry is made on basis of history given by the patient, deceased herself and, therefore, in our opinion this cannot be treated as dying declaration. 8.8 The dying declarations, therefore, can be divided in two parts. There are four dying declarations which are oral in nature, which are made before witnesses, Nathubhai, Jethiben, Manubhai Chhotalal Bhatt and Dr.Kirit Patel. Out of these four oral dying declarations, witnesses Manubhai Chhotalal Bhatt and Dr.Kirit Patel have reduced the disclosure in writing in their own words. Manubhai has made an entry in the Wardhi Book and Dr.Patel has made endorsement on the case papers. The version given to Nathubhai and Jethiben has no contemporaneous material lending support to them. CR.A/862/1998 20/39 JUDGMENT 8.8.1 The other dying declarations are in writing which are in form of the F.I.R. and the dying declaration before the Executive Magistrate, which are reduced into writing as per the say of these witnesses in the words of the deceased herself. 9. We, now proceed to examine these dying declarations. 9.1 The first dying declaration before Nathubhai in presence of Prosecution Witness No.7, Jituben Narsinhbhai and Prosecution Witness No.5, Jagdish Nanji is not supported by any of these witnesses and they said that no such dying declaration was made. Prosecution Witness No.7 goes to the extent of saying that deceased-Rekha was unconscious. However, they have been declared hostile and in cross- examination to the