CR.A/1235/1999 1/68 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 1235 of 1999 For Approval and Signature: HONOURABLE MR.JUSTICE J.R.VORA HONOURABLE MR.JUSTICE SHARAD D.DAVE ========================================= 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 ? ========================================= KARIM ADAMBHAI CHAMADIYA Versus STATE OF GUJARAT ========================================= Appearance : MR BP MUNSHI with MS NIRALI B MUNSHI for Appellant MR LB DABHI APP for Respondent ========================================= CORAM : HONOURABLE MR.JUSTICE J.R.VORA and HONOURABLE MR.JUSTICE SHARAD D.DAVE Date : 01/12/2008 CR.A/1235/1999 2/68 JUDGMENT CAV JUDGMENT :(Per : HONOURABLE MR.JUSTICE J.R.VORA) 1 This Appeal is preferred by the appellant under Section 374 of the Code of Criminal Procedure, 1973, against the judgment and order delivered by Sessions Judge, Jamnagar, on 30th of September, 1999, in Sessions Case No. 35 of 1999, whereby the present appellant, being accused of the said Sessions Case, came to be convicted by learned Sessions Judge, Jamnagar, for the offences punishable under Section 302 of the Indian Penal Code and was sentenced to undergo imprisonment for life and to pay fine of Rs. 500/­ in default to undergo simple imprisonment of six months. 2 As per the brief facts of the prosecution case, deceased Roshanben, daughter of Abhu Kasam Jadeja of village Bet, had married to Noor Mohmad Adam Chamadiya, the elder brother of appellant, about five months prior to the date of incident. The family was residing jointly at village Balapar Bet, Taluka Okha. The family members were father­in­law of the deceased Adam Yusuf; mother­in­law of the deceased Aminaben and two brothers of husband ­ appellant and other Sattar Adam. Havaben, sister of the husband, also was staying in this family, who was aged about 12 years. Other two sisters Memuba, aged about 8 years and Kulsumben, were also staying with them. The incident occurred on or about 4th of December, 1998 at about 11.00 a.m. CR.A/1235/1999 3/68 JUDGMENT all the other family members, including husband of the deceased, were away from the house and deceased Roshanben, Havaben Adhambhai, aged about 12 years and appellant aged about 18 to 19 years, at that time, were in the house. Thereafter, Havaben Adhambhai went to fetch water from the well of the village. Deceased Roshanben was cooking in the kitchen of the house, which was made over by gunny bags partition. When the appellant and deceased Roshanben were alone in the house, the appellant started bantering, gibeying and jesting with deceased Roshanben. Roshanben prevented and told the appellant not to jester, and upon that, the appellant caught hold of the `odhani' of the deceased (a part of Punjabi dress) to wear on shoulder by females, gagged her on face and on her eyes and dragged her in the room, poured some liquid upon her and ignited her. She started burning and started shouting. In the meantime, Havaben Adhambhai, returned after fetching water and she tried to extinguish the fire by pouring water and through quilt. After some times, Noor Mohmad Adam , husband of Roshanben and cousin brother Haji Noor Mohmad and her aunt Sarifaben came and deceased stated to them what had taken place. Her husband Noor Mohmad Adam shifted her to Primary Health Center of Village Bet where Defence Witness No. 1 Dr. Jayantilal Gokalbhai Pagda, treated her and found that she was semi­conscious and was in shock. According to this Doctor, Roshanben had 90% burns and, CR.A/1235/1999 4/68 JUDGMENT therefore, she was referred to Mithapur Tata Hospital where she was treated by PW­2 Narbheram Hiradas Gondaliya at about 2.30 p.m. He found that Roshanben had 80% burn injuries and she was conscious. He informed Mithapur Police Station and when the patient was treated, the police came in the hospital because message of the Doctor had received by Mithapur Outpost Police Station. ASI PW­15 Pratapsinh Kodarji Jadav, thought it fit, to call one Jarinaben, a social worker to accompany him at the Hospital, as according to the message of Dr. Narbheram Hiradas Gondaliya, Roshanben was admitted for burn injuries. PW­15 Prapatsinh Kodarji Jadav, found that Roshanben was conscious and he obtained opinion of Dr. Gondaliya and recorded the complaint of Roshanben, which is at Exhibit­44 at about 5.15 p.m in the presence of Jarinaben, a social worker and thereafter in the said complaint, for the offence punishable under Section 307 of the Indian Penal Code was initially recorded and thumb impression of the deceased was taken on that and signature of Jarinaben was also obtained. In the said complaint, deceased stated that when appellant and she were alone in the house, the appellant tried to play jest with her. On preventing, she was gagged by `odhani', her eyes and her whole face were tied, and after pouring kerosene, she was ignited by the appellant. The complaint was sent to Outpost of Mithapur Police Station and was registered by PSO Salamsinh Kanubha Jadeja ­ PW­12. CR.A/1235/1999 5/68 JUDGMENT ASI Pratapsinh Kodarji Jadav, PW­15, then arranged to record dying declaration of the deceased and sent wireless message at Dwarka to concerned Executive Magistrate, PW­3 Mansukhbhai Madhabhai Makwana. On receiving wireless message, PW­3 Mansukhbhai Madhabhai Makwana, Executive Magistrate, reached at the hospital at about 17.00 hours, obtained opinion of the Doctor and found that the deceased was conscious and recorded the dying declaration of the deceased after asking her questions. That dying declaration is at Exhibit­18 wherein he obtained the right hand thumb impression of the deceased and he also signed the said dying declaration. Dying declaration was started by the Executive Magistrate to record from 17.30 hours and was over by 17.40 hours. It appears that having regard to the deteriorating health of the deceased, Dr. Narbheram Hiradas Gondaliya, referred the patient to Irwin Hospital at Jamnagar. She was shifted to the charge of Dr. Ambassan of Irwin Hospital at Jamnagar, who in turn, informed the police i.e. PW­14, hospital duty Head Constable Dilipsinh Bhimsinh Jadeja. Patient Roshan was conscious and Head Constable Dilipsinh Bhimsinh Jadeja of Jamnagar also inquired about the incident and deceased Roshanben narrated the same story and PW­14 Dilipsinh Bhimsinh Jadeja inquired whether her dying declaration was recorded or not and that the crime was registered or not. Head Constable Dilipsinh Bhimsinh Jadeja was informed that CR.A/1235/1999 6/68 JUDGMENT dying declaration was recorded and the crime was also registered. Roshanben during treatment died in Irwin Hospital on 5th of December, 1998 at about 17.00 hours and, therefore, the crime was registered under Section ­ 302 of the Indian Penal Code. Investigation was handed over to PW­16 Narendrasinh Bahadursinh Jadeja, PSI of Okha Police Station. Inquest panchnama was drawn at Jamnagar by Jamnagar Police Station. After due investigation, a charge sheet came to be filed against the appellant in the Court of learned Judicial Magistrate, First Class at Dwaraka, and the case was committed to the Court of Sessions. 3 On 28th of July, 1999, the learned Sessions Judge, Jamnagar, framed charge against the appellant vide Exhibit­5 for the offence punishable under Section 302 of the Indian Penal Code, to which the accused pleaded not guilty. Prosecution, therefore, examined as many as 16 witnesses and produced documentary evidence on record. Thereafter the learned Sessions Judge brought incriminating circumstances appearing in the evidence to the notice of the accused and the defence of the accused was of total denial. The defence thereafter examined Defence Witness at Exhibit­58 Dr. Jayantilal Gokalbhai Pagda, who had examined deceased Roshan, first in point of time, at Primary Health Center of village Bet. CR.A/1235/1999 7/68 JUDGMENT 4 Thereafter, the learned Sessions Judge heard the prosecution as well as defence and came to the above conclusion to convict and sentence the accused appellant and, hence, this Appeal. 5 The prosecution examined the following witnesses and produced following documentary evidence to prove its case. Prosecution Witnesses : PW-1 Dr. Bipin Jivanbhai Patel Exh.12 PW-2 Narbheram Hiradas Gondaliya Exh.14 PW-3 Mansukhbhai Madhabhai Makwana Exh.17 PW-4 Havaben Adhambhai Exh.19 PW-5 Jarinaben Ibrahim Exh.20 PW-6 Manubhai Poppatbhai Gohil Exh.21 PW-7 Haji Noormohamad Exh.23 PW-8 Rajendrasinh Khodaji Exh.24 PW-9 Tarunkumar Ramaniklal Exh.27 PW-10 Vinodbhai Harilal Exh.29 PW-11 Ramjibhai Tapubhai Exh.30 PW-12 Salamsinh Jetabhai Chauhan Exh.34 PW-13 Parakaramsinh Kanubha Jadeja Exh.37 PW-14 Dilipsinh Bhimsinh Jadeja Exh.41 PW-15 Prapatsinh Kodarji Jadav Exh.43 PW-16 Narendrasinh Bahadursinh Jadeja Exh.46 Documentary Evidence : 1 Postmortem Report Exh. 13 2 Certificate of Dr. Narbheram Hiradas Gondaliya of Tata Hospital at Mithapur. Exh.15 3 Dying Declaration Exh. 18 4 Inquest panchnama of deceased Exh. 26 5 Panchnama of scene of offence Exh. 28 6 Arrest panchnama of the accused and seizure of clothes panchnama of the accused Exh. 30 CR.A/1235/1999 8/68 JUDGMENT 1 Postmortem Report Exh. 13 4 Message forwarded to Executive Magistrate to record DD Exh. 32 7 Station Diary Entry of Okha Police Station Exh. 35 8 Entry of M.L.C. Register of Irwin Hospital, Jamnagar Exh. 42 9 Complaint filed by the deceased Exh. 44 10 Yadi to register the crime Exh. 45 11 Map of scene of offence Exh. 48 12 FSL opinion Exh. 52 13 Medical Certificate issued by Dr. Jayantilal Gokalbhai Pagda Exh. 56 14 Case papers produced by the prosecution Exh.59 6 Necessary it is to note the gist of the prosecution case and the evidence, before the same is re­appreciated in this Appeal. 7 PW­1 Dr. Bipin Jivanbhai Patel, examined at Exhibit­12, of M.P. Shah Medical College and in panel with Dr. B.D. Gupta, he conducted postmortem on dead body on 6.12.1998. He noted the physical condition of the dead body and stated that there were ink impression on left hand thumb of the deceased. During postmortem examination, Dr. Bipin Jivanbhai Patel found that body had 80 to 90% dermo epidermal burn injuries. He has noted this burn injuries in column No.17 of the Postmortem Note, and according to him, there were 80 to 90% burn injuries. Those were ante­ mortem and cause of death was due to shock on account of extensive burn injuries. The witness has been cross­examined by the defence. He denied that the burns were more than 90% and stated that if somebody is burnt to that CR.A/1235/1999 9/68 JUDGMENT extent, he would face difficulty in speaking. There were soot particles on the mouth and possibility of entering soot particles in trachea should not be over ruled. 8 PW­2 Dr. Narbheram Hiradas Gondaliya, examined at Exhibit­14, was the then Doctor of Tata Hospital, Mithapur. On 4th of December,1998, at about 2.30 p.m. deceased was brought to his hospital by her husband. He found that there were 80% burn injuries and the patient was conscious. Preliminary immediate treatment was given to her. He produced certificate in this regard at Exhibit­15. The witness further stated that he informed Mithapur Police Station and on his message, police visited the hospital and found the patient. Since the patient was conscious, police inquired from patient. Thereafter, Executive Magistrate also visited. Though condition of the patient was serious but she was conscious. Thereafter, Executive Magistrate recorded the Dying Declaration and he identified his endorsement on Exhibit­18 Dying Declaration, in which he has made the endorsement that patient was conscious. In examination, he has been asked about the history given by the patient of alleged burns. He was asked about the treatment given by him, that is, the drugs and medicines administered to the deceased. He stated that in such cases, ordinarily, they administer pain killer medicines. It is not possible to record the blood CR.A/1235/1999 10/68 JUDGMENT pressure of the patient if the skin was burnt. In such cases, with the passing of time, it was possible that patient may usually lose consciousness, but he denied that, in incident like this, patient loses the consciousness about the time and place. He denied that in such incident, morphine and barbiturate medicines were required to be administered. He denied that on account of medicines he administered, patient was drowsy. He denied the allegations that he signed the dying declaration only because police stated so. He ruled out the possibility of burn injuries to the patient while she was cooking on hearth (chula). He further in cross­examination, the witness stated emphatically that when he examined the patient, kerosene was smelling from her body. He stated that he has not mentioned this in his certificate or in case papers. He denied the allegation that since the patient was burnt in her face also, she was not able to speak. 9 PW­3 Mansukbhai Madhabhai Makwana, examined at Exhibit­17, was the Executive Magistrate. According to him, at 16.45 hours, on 4th of December, 1998, he received a wireless message from Dwaraka Police Station that he was required to record Dying Declaration at Mithapur Tata Hospital and immediately he started for Mithapur. In half an hour, he reached at Tata Hospital, Mithapur. He met with Dr. Narbheram Hiradas Gondaliya. He inquired from him whether patient CR.A/1235/1999 11/68 JUDGMENT Roshan was conscious. The Doctor replied to him that the patient was conscious and he reached near the patient. He found that police staff was present and he inquired from them where was patient Roshanben. The police led him to patient. When dying declaration was recorded, he and Roshanben were all alone and no third person was present. Roshanben was in position to give replies and understands the questions. He asked the name of Roshanben and then he asked the age of patient. She stated that her age is one year less 20 i.e. 19 years. In reply whether she was married, she stated that she was married. Then he inquired the name of the husband of the patient, which she gave to be Noor Mohmad Adam. When her residential address was asked, the patient stated that they were residing at village Balapar Bet. Then he inquired from patient that what had happened. Then the patient replied that her “diyar” i.e. younger brother of her husband, Karim gagged her and dragged her in a room and thereafter the witness inquired from her that what had done to her by her diyar. In reply, she stated that, after dragging her in a room, from a lantern or tin, he poured kerosene over her. Thereafter he inquired whether anybody else, except appellant, was present at that time. She stated that nobody was present. Then he inquired the time of the incident and patient replied that the incident had occurred on the same morning at about 11.30 a.m. The witness inquired from the patient thereafter that who had brought CR.A/1235/1999 12/68 JUDGMENT her to hospital. In reply she stated that her husband, her brother and her aunt had brought her to the hospital. Then the witness inquired that why appellant had poured the kerosene over her. In reply she stated that she prevented him from gibeying her and, therefore, Karim poured kerosene. The witness asked whether the patient wanted to say anything more, in which she stated `no'. The witness further stated that he prepared dying declaration, which he identified at Exhibit­18, and stated that the said dying declaration was written in his own hand writing, in which he obtained the thumb impression of right hand of the patient, though the said impression was not identified by anybody. Below dying declaration, he obtained the certificate of the Doctor about the consciousness of the patient. He also signed the dying declaration. He also produced on record the wireless message which he received. In examination­in­cross by the defence, the witness stated that he received wireless message at about 16.35 hours. Ordinarily, when such message is received from the police, they inquired as to whether the patient was conscious and then dying declaration is being recorded. According to him, he had a telephonic talk with the Mithapur Police Station from his office. The police had informed him that the patient was conscious and thereafter in government vehicle he had reached at Tata Hospital. At that time, his driver was one Dipakbhai Thakkar. Reaching at Tata Hospital, immediately he had met Dr. Gondaliya. Ordinarily, when the CR.A/1235/1999 13/68 JUDGMENT Executive Magistrate visits hospital for recording dying declaration, nobody prevents the Executive Magistrate and all necessary arrangements are being made. After seeing the Doctor, he inquired from police that where was the patient. When he recorded the dying declaration, except patient and himself, nobody was present. He stated that he could not say where the Doctor made endorsement about the consciousness of patient below Exhibit­18 dying declaration. He stated that the endorsement might have been made at the ward of the patient or in his chamber. When he reached at Tata Hospital, he found relatives of deceased in the hospital. All of them were requested to vacate the room while recording the dying declaration and they had gone out of the room. When he reached at the hospital, deceased was in position to talk with his relatives. He denied the allegation that parental relatives of the deceased had tutored Roshanben that how to make a statement in dying declaration. He denied the allegation that accordingly the patient had given the dying declaration. 10 PW­4 Havaben Adhambhai, examined at Exhibit­19, is sister of appellant – accused. She has not supported the prosecution case. It was the prosecution case that on the day of the incident, the age of the witness was about 12 years. According to prosecution case, deceased asked Havaben to fetch water because she was cooking and CR.A/1235/1999 14/68 JUDGMENT water was needed. Therefore, this witness had been to well of the village. At that time, she found that her brother Karim i.e. accused was sitting in the courtyard of the house and deceased was preparing meals in the kitchen. According to prosecution case, when after 10 minutes this witness Havaben returned from fetching water, she found that near the door of southern side room, deceased was lying in burnt condition and was shouting for help and, therefore, this witness poured water and tried to extinguish fire by quilt, and at that time, she noticed that the accused appellant was not within the vicinity of the house. Now she did not support the prosecution case and stated before the court that at the time of the incident she and deceased Roshanben were alone in their house and Roshanben was preparing meals in the kitchen while she was cleaning rice. When she went inside, she found that Roshanben was burnt. He denied the fact that when she had not gone to fetch water, the accused was in the house and after returning she found that Roshanben was burning. She was confronted by the Prosecutor with her police statement. In her cross­examination by defence, she stated that her brother Noor Mohmad Adambhai i.e. husband of the deceased came at about 11'O clock. She did not know whether Noor Mohmad asked Roshanben that how the incident had occurred. CR.A/1235/1999 15/68 JUDGMENT 11 PW­5 Jarinaben Ibrahim, examined at Exhibit­20, was, according to prosecution case, a social worker at the relevant time. According to her, she was a social worker and some times police used to call her. Police called her when a bride was burnt or had consumed poison. On 4th of December,1998, police had called her at Mithapur Tata Hospital. When she reached at Mithapur Tata Hospital, she found Jamadar Prabhatsinh there. She inquired from Jamadar Prabhatsinh why was she called and in reply Jamadar indicated Roshanben and stated that they were recording complaint of Roshanben, in presence of her. According to her, she came to know that the name of the patient was Roshanben and her in­laws were of Balapar Bet. Police was recording the complaint and then requested her to talk to patient. Therefore, she asked patient that how was she burnt. Roshanben stated that her diyar was gibeying her and when she refused, her “diyar” caught her with her odhani. Thereafter, from lantern, he poured kerosene on her body and ignited her and thereafter he pushed her and ran out of the house. She also stated before the police that at that time in the house patient and the accused were alone and nobody else was present. The witness stated that Roshan told her that after some times, her sister­in­law came and she also shouted for help. The police was recording the statement of the patient. After recording the statement, police obtained her signature and in her presence police CR.A/1235/1999 16/68 JUDGMENT also obtained the thumb impression of patient Roshanben. When complaint was recorded, Roshanben only was present in the ward and her husband was sitting outside. She identified the complaint at Exhibit­44 which was recorded in her presence. In her cross­ examination, she stated that, the police had not recorded her statement. She denied the allegation that Roshanben never stated to this witness that accused had poured liquid and had ignited her. She stated that she was not fully educated and only knew how to sign. Whatever she asked to Roshan and whatever replies Roshan had given, had recorded by the police, but she had not read what was recorded by the police. She stated that the complaint was read over to her by police but she did not read the complaint herself. In cross­examination, she explained that when she asked Roshanben that how her diyar accused gibeyed her and Roshan stated that her diyar accused wanted to take undue liberty with her. She stated that this fact was not recorded in the complaint and she did not ask the police that why this fact was not recorded in the complaint. While complaint was being recorded, Writer Constable was present. She denied the allegation that Roshan had stated that while she was cooking, her clothes got flames and she burnt. She denied the allegation that Roshan stated that her parental relatives had tutored her to give statement against her “diyar”. The witness further stated in cross­examination that she stayed at Mithapur CR.A/1235/1999 17/68 JUDGMENT and was a social worker. She was called from her house by the police at about 3.45 hours. She was called by one police personnel Kishorbhai and immediately she had reached to hospital. Kishorbhai had conveyed her that one female was burnt and, therefore, she was called to the hospital. She denied the allegation that Roshan stated against the accused on tutoring by her parental relatives. She denied the allegation that the complaint was recorded in her presence. She denied the allegation that her signature was obtained afterwards. She denied the allegation that she knew Roshanben and her relatives. She stated that for social work, some times she goes to Bet. She stated that her caste meeting did not take place at village Bet, but it took place at Mithapur. She denied the allegation that she had relationship with Roshan and her parental relatives and, therefore, she deposed false facts. She stated that till the complaint was recorded, the time was about 5.45 to 6.00 p.m. Thereafter, Mamlatdar (Executive Magistrate) had come. 12 PW­6 Manubhai Poppatbhai Gohil, examined at Exhibit – 21, was at the relevant juncture serving as Circle Inspector in Revenue Department. He had received a yadi from police and a copy of panchnama of scene of offence. Therefore, he visited the house of the deceased and had prepared a map, which he produced at Exhibit – 22. CR.A/1235/1999 18/68 JUDGMENT 13 PW­7 Haji Noormohamad, examined at Exhibit – 23, happens to be cousin brother of the deceased. He stated that Abhu Kasam Jadeja, father of the deceased, happened to be his uncle and Abhu Kasam Jadeja had died. Daughter of Abhu Kasam – Roshan had married with Noor Mohmad Adam at village Balapar Bet. She died before about eight months. She was staying with her in­laws and husband when she died.