CR.A/662/1999 1/13 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 662 of 1999 For Approval and Signature: HONOURABLE MR.JUSTICE A.M.KAPADIA sd/- HONOURABLE MR.JUSTICE Z.K.SAIYED sd/- ========================================================= 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 ? ========================================================= CHANDUNBHA MAJBUTSINH JETHVA - Appellant(s) Versus STATE OF GUJARAT - Opponent(s) ========================================================= Appearance : THROUGH JAIL for Appellant(s) : 1,MRS SHILPA R SHAH for Appellant(s) : 1, MR MUKESH PATEL, APP for Opponent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE A.M.KAPADIA and HONOURABLE MR.JUSTICE Z.K.SAIYED Date : 24/07/2008 CAV JUDGMENT (Per : HONOURABLE MR.JUSTICE Z.K.SAIYED) CR.A/662/1999 2/13 JUDGMENT 1. The present Appellant – original accused in Sessions Case No.119 of 1997 was charged and tried by the learned Additional Sessions Judge, Jamnagar, for the offence punishable under Section 302 of Indian Penal Code (for short “IPC”). 2. The facts of the prosecution case is that deceased Purnaba was the wife of present appellant – accused. The appellant – accused and deceased Purnaba, along with their kids were staying at the chawl of Woolen Mill, at Jamnagar. The deceased married with the accused before 7 years from the date of incident. The appellant – accused was doing the business of filling the Soda Bottle. On 9.7.1997 at about 5.00 pm, the deceased was preparing the food and at that time her husband was present in the house. Thereafter he had gone out and after some time returned back after consuming liquor and asked deceased to give food. The deceased provided the food to the accused, however, the deceased threw the plate on deceased saying why she has prepared such type of food. Thereafter the deceased opened the cock of primous and poured the kerosene on the deceased and the stick from the match box was lighted and was thrown upon the deceased who was set ablaze and thereafter accused went out side the house. Due to burns the deceased shouted and on hearing the shouts the ladies from the neighbour- hood came and extinguished the fire by throwing matresses on her. Thereafter somebody called Majbutsinh, father in law of deceased. The deceased Purnaba explained the incident and thereafter CR.A/662/1999 3/13 JUDGMENT the victim was shifted to Irvin Hospital for treatment in rickshaw by said Shri Majbutsinh. In the Hospital the victim narrated the incident to P.S.I. Shri S.M. Patel in the form of complaint. P.S.I. Shri Patel gave the said complaint to P.S.O. and the same was registered as CR No.511/97 for the offence punishable under Sections 307 I.P. Code. Thereafter as the victim succumbed to the said burn injuries, offence under Section 302 was registered against the accused. The investigation of the said case was handed over to Police Inspector Shri Amrutbhai Sendhaji. - I.O. who has drawn the panchnama of scene of offence and also recorded the statement of witnesses. Possession of Muddamal was also taken after drawing muddamal panchnama. Thereafter accused was arrested and sent to custody after drawing the panchnama. The dead body of deceased was sent for Post Mortem and Post Mortem Note was prepared. The Muddamal was sent to F.S.L., Junagadh, for necessary examination. Thereafter, after completion of investigation, the Police filed charge-sheet against the accused in the Court of learned Chief Judicial Magistrate, Jamnagar. 3. After filing the charge-sheet, in the present case, as the offence was exclusively triable by the Court of Sessions, the learned Chief Judicial Magistrate, Jamnagar, committed the said case to the Court of Sessions at Vyara. 4. Thereafter, the charge (Ex.3) was framed against the present – appellant. The accused pleaded not guilty to the said charge and claimed to be tried. CR.A/662/1999 4/13 JUDGMENT 5. In order to bring home the charge levelled against the accused, the prosecution has examined in all 24 witnesses and relied upon their oral testimonies. They are as under : P.W. 1 - Executive Magistrate Devrajbhai Ratnabhai Bhimani, Ex.6, who has taken Dying Declaration of the deceased; P.W. 2 - Circle Inspector Manojbhai Balvantbhai Thakor, Ex. 10; P.W. 3 - Panch Shantilal Mohanlal, Ex.13; P.W. 4 - Panch Natvarlal Tapubhai Aher, Ex.14; P.W. 5 - Jayaben Amarsingh , Ex.17; P.W. 6 - Mariyamben Dostmamad Sandhi, Ex.18; P.W. 7 - Chaturaben Arjanbhai Kumbhar, Ex.19; P.W. 8 - Jenamben Salemanbhai, Ex.20; P.W. 9 - Vanitaben Pravinbhai, Ex.21; P.W.10 - Sarojben Hamirbhai, Ex.22; P.W.11 - Dr. Dineshchandra Amarsinh Parmar, Ex.23 CR.A/662/1999 5/13 JUDGMENT P.W.12 - Hemiben Kanabhai, Ex.27; P.W.13 - Hemubha Kalubha, Ex.28; P.W.14 - Ramdan Devidan Gadhvi, Exh. 30; P.W.15 - Tejubha Lakhubha Jadeja, Exh.33; P.W.16 - Somabhai Mohandas Patel, Ex.38; P.W.17 - Niranjan Narmadashanker Dave, Ex.40; P.W.18 - Dr. Amish Udyan Mehta, Ex.44; P.W.19 - Dr. Shidhu Chacko, Ex.46; P.W.20 - Dr. Sanjay Muljibhai, Ex.47; P.W.21 - Dr. Nehal Prabodhbhai Nanavati, Ex.51; P.W.22 - Savitriben Hareshbhai Makwana, Ex.52; P.W.23 - Kanjibhai Tarshibhai Kamariya, Ex.53; P.W.24 - Amrutbhai Sindhaji Menat, Ex.56, Investigating officer; To Prove the culpability of the accused, the prosecution has also produced and relied upon the following documentary evidence. They are as under : CR.A/662/1999 6/13 JUDGMENT (1)Dying Declaration of deceased Purnaba before the Executive Magistrate, Ex.8; (2)Map of place of incident, Ex.12; (3)Arrest Panchnama of accused, Ex.15; (4)Inquest Panchnama of dead body, Ex.16; (5)Post Mortem Note of deceased, Ex.26; (6)Copy of entry at Sr.No.36 of City “B” Division Police station, Ex.34; (7)Yadi for registering the offence, Ex.35; (8)Copy of entry No.41 of City “B” Div., Ex.36; (9)Report of heavy offence; (10)written complaint of deceased Purnaba, Ex.39; (11)Case Papers and history of deceased taken by Dr. Amay Uday Ex.45; (12)Treatment papers of deceased Purnaba, Ex.48,49 & 50; (13)Copy of complaint under the provision of Sections 110, 117 of B.P. Act lodged against accused Chandubha Majbutsinh; (14)Copy of complaint under the provisions of Section 66(1)(b), 85(1))(3) of the Prohibition Act lodged against the accused; (15)Panchnama of scene of offence; (16)Report of Police Inspector for inserting Section 302 I.P. Code; (17)Medical Certificate of accused; (18)Report of F.S.L., Junagadh 6. 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 CR.A/662/1999 7/13 JUDGMENT case of prosecution. 7. After considering the oral as well as documentary evidence and after hearing the parties, the learned Additional Sessions Judge vide impugned Judgment and Order dated 17.6.1999 held the accused guilty to the offence punishable under Section 302 I.P. Code. The accused was convicted and sentenced to suffer rigorous imprisonment for life with fine of Rs.100/- I/d to under go Simple imprisonment for ten days for the offence under Section 302 I.P. Code. 8. 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 Appeal, through Jail, and learned Advocate Ms. Shilpa R. Shah is appointed through Legal Aid to defend the case of the present Appellant – accused. 9. Heard Ms. Shilpa R. Shah, learned Advocate, appointed through Legal Aid, for the appellant – accused and Mr. Mukesh Patel, learned A.P.P., for the respondent – State. 10.Learned Advocate Ms. Shilpa Shah has contended that the complaint Exh.39 of the deceased cannot be treated as Dying Declaration. She has vehemently contended that from the oral as well as documentary evidence it is established that after receipt of burn injuries she was tutored by some one to give statement against the accused. She has also contended that looking to the CR.A/662/1999 8/13 JUDGMENT medical evidence and the Post Mortem Report, in such a critical condition having severe burn injuries, nobody would be able to say anything. She has also contended that the Dying Declaration which was recorded by the Executive Magistrate is against the provision of law and from the medical evidence it transpires that this is not a case of murder, but, it is a case of suicide. She, therefore, prayed that in such circumstances, benefit of doubt is required to be given to the appellant – accused and the accused may be acquitted from the charges levelled against him. 11.Learned APP Mr. Mukesh Patel, for the respondent, has contended that the there is voluminous reliable, trustworthy and clinching evidence on record which unequivocally and unerringly proves that the appelant – accused had poured the kerosene and lighted the stick from the match box and set ablaze the deceased and thereby he committed the murder of victim lady. He further contended that from the evidence of the complainant and other witnesses as well as from the documentary evidence, the prosecution has proved the guilt of the accused. 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 to be confirmed. He also contended that the trial Court, after fully appreciating the evidence, has rightly convicted and sentenced the appellant – 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 CR.A/662/1999 9/13 JUDGMENT Court. 12.We have gone through the oral as well as documentary evidence led by the prosecution before the trial Court. 13.The Hon'ble Apex Court in a number of decisions held that “it is not the duty of the appellate Court when it agrees with the view of trial Court on the evidence either to restate the effect of the evidence or to reiterate the reasons given by the trial Court”. The said law is laid down by the Hon'ble Court in the case of (1) GIRIJANANDINI DEVI & ORS., v/s. BIJENDRA NARAIN CHOUDHARY, reported in AIR 1967 SC 1124, and (2) in the case of STATE OF KARNATAKA v/s. HEMAREDDY & ANR., reported in AIR 1981 SC 1417. Yet, in the interest of justice and to observe said cause of Appeal in a legal way, we have discussed the evidence as well as the reasons assigned by the trial Court. 14.The prosecution has examined Executive Magistrate Shri Devrajbhai Ratnabhai Bhimani, P.W.1, Exh.6, who has taken Dying Declaration of the deceased. He deposed that at 21.30 hours on 9.7.1997 police came with Yardi for taking Dying Declaration. On receipt of the said Yadi he went to the Irvin Hospital for taking Dying Declaration of victim. The Doctor was present and after completing the formality the said witness had recorded Dying Declaration of deceased in presence of Doctor. He deposed that at the time when Dying Declaration was taken, the victim was fully conscious CR.A/662/1999 10/13 JUDGMENT and giving complete reply to the questions raised by him. He has categorically denied the fact that the patient (victim) was not in a position to speak clearly or hear and she was stating according to whims of the relatives. We have compared the said statement of victim with F.I.R. Ex.54 which was recorded in presence of P.W. 20, Dr. Sanjay Muljibhai, Ex.49. The said complaint was also identified by this witness who is an independent witness. This witness has also examined the victim. This witness has deposed that at the time when he examined the victim she was fully conscious. Her mental position was also sound. She was able to speak and hear properly. She has narrated the whole incident to this witness. The history narrated by the victim is recorded by this witness in his own hand-writing. From the medical evidence it is clearly established that this is not a case of suicide, but is a case of murder. It is true that the complaint was made before the Police in the form of statement. 15.From the above it is clearly established that at the time of recording of the Dying Declaration, the deceased was fully conscious. The statement made in the form of Dying Declaration, in presence of medical expert, is a best proof and there is no reason to disbelieve the same. The Dying Declaration is admissible in evidence on which conviction can be based without any further corroboration if Dying Declaration is found genuine and trustworthy. Looking to the evidence, there is a time gap between the recording of Dying Declaration and occurrence of death but that by itself would not destroy CR.A/662/1999 11/13 JUDGMENT the evidentiary value of the statement. The statement does not loose its credibility if the declarent chances to live longer than anticipated. The Dying Declaration is a best guarantee of the truth if the statement made by dying person who is totally conscious at the time of recording the Dying Declaration. It is also laid down by the Hon'ble Supreme Court that admissibility of the dying declaration rests upon the principles that a sense of impending death produces in a man's mind the same felling as that of a conscientious and virtuous man under other nemomoriturus praesumiture mentire i.e. a man will not meet his maker with a lie on his mouth. Such statements are admitted upon consideration that their declaration are made in extremity when the maker is at the point of death and when every hope of this world is gone, when every motive to falsehood is silenced and the mind induced by the most powerful consideration to speak the truth. 16.In the case of NAJJAM FARAGHI @ NAJJAM FARUQUI v/s. STATE OF WEST BENGAL, reported in AIR 1998 SC 682, the Hon'ble Supreme Court has observed in Head Note (A) as under : “(A) Penal Code (45 of 1860), S. 300 – Murder – Evidence – Death of woman due to burning – Evidence of post- mortem examiner that it was not case of suicide – No attempt by accused-husband who was admittedly present at scene of occurrence to put out fire and save wife – Dying declaration by wife showing that husband killed her by setting her on fire – mental condition of deceased CR.A/662/1999 12/13 JUDGMENT sufficiently good to give statement to Magistrate – Conviction of accused upheld – Mere fact that case was registered initially under S. 306 and later after examination of witnesses alternative charge under same section was framed – will not vitiate proceedings.” 16.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 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. 17.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 accused had poured the kerosene on the deceased victim and setting on fire his own wife. There is no reason for the deceased to falsely involve her own husband i.e. the appellant – accused in the incident. From the oral as well as documentary evidence adduced by the prosecution, in our opinion, the learned trial Judge has rightly convicted CR.A/662/1999 13/13 JUDGMENT and sentenced the appellant – accused. Therefore, the conviction and sentence awarded by the trial Court against the appellant – accused does not call for any interference of this Court in exercise of appellate powers. 18.We find ourselves in complete agreement with the said findings, ultimate conclusion and resultant order of conviction passed by the trial Court and we are of the view that no other conclusion except the one reached by the trial Court is possible in the instant case as the evidence on record stands. Therefore, there is no valid reason or justifiable ground to interfere with the impugned Judgment and order of conviction and sentence. 19.For the forgoing reasons the Appeal fails and is hereby dismissed. The Judgment and Order of conviction and sentence dated 17.6.1999 recorded by the trial Court against the appellant – accused in Sessions Case No.119 of 1997 is hereby confirmed and maintained. Muddamal be disposed of in terms of directions contained in the impugned Judgment and order passed by the trial Court. 20. This Appeal is accordingly dismissed. Sd/- (A.M.KAPADIA,J.) sd/- (Z.K. SAIYED, J.) sas