IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL CONFIRMATION CASE No 3 of 2000 with Criminal Appeal No.540 of 2000 For Approval and Signature: Hon'ble MR.JUSTICE M.H.KADRI and Hon'ble MR.JUSTICE R.P.DHOLAKIA ============================================================ 1. Whether Reporters of Local Papers may be allowed : NO to see the judgements? 2. To be referred to the Reporter or not? : NO 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 @ STATE OF GUJARAT Versus VASHRAM NARSHIBHAI RAJPARA -------------------------------------------------------------- Appearance: 1. Criminal Confirmation Case No. 3 of 2000 Mr.A.D. Oza, PUBLIC PROSECUTOR with Mr. K.P. Rawal, Additional Public Prosecutor for the State Mr. M.J. Budhabhatti for the respondent 2. Criminal Appeal No.540 of 2000 Mr. M.J. Budhabhatti for the appellant Mr.A.D. Oza, PUBLIC PROSECUTOR with Mr. K.P. Rawal, Additional Public Prosecutor for the State -------------------------------------------------------------- CORAM : MR.JUSTICE M.H.KADRI and MR.JUSTICE R.P.DHOLAKIA Date of decision: 18/09/2001 C.A.V. Judgment: (Per: M.H. Kadri, J.) 1. On a trial held by the learned Additional Sessions Judge, Rajkot, the appellant has been convicted of the offences punishable under Section 302 of the Indian Penal Code and sentenced to death for murdering his wife and four daughters vide judgment dated May 31, 2000 delivered in Sessions Case No.123 of 1999. The appellant has challenged his conviction as well as death sentence imposed on him by filing the present appeal under section 374(2) of of the Code of Criminal Procedure, 1973 (hereafter referred to as 'Code' for short) whereas the learned Additional Sessions Judge has submitted the proceedings of the Sessions Case No.123 of 1999 to the High Court for the confirmation of death sentence as required by Section 366(1) of the Code and it is numbered as Confirmation Case No.3 of 2000. The Registry, after submission of record and proceedings by the learned Additional Sessions Judge, Rajkot, to the High Court, had sent record and proceedings for printing and, after the paper book was prepared, the matter has been placed before us for final hearing. 2. Briefly stated, the prosecution case is as under: The accused, Vashrambhai Narshibhai Rajpara (hereinafter to be referred as appellant), was a fruit vendor mainly selling bananas in his hand-lorry in the city of Rajkot. He was married to Savitaben (hereinafter to be referred as 'deceased') and had four daughters - Rajuben alias Nirmala, Harshida, Usha and Guddi - and a son, Kishan, aged about five years. Previously, the family of the appellant was residing in Ashapuranagar locality, Rajkot. Prior to eight months of the date of the incident, i.e. May 21, 1999, the appellant had purchased a house situated at Kiran Society, Lane No.15, Kotariya Road, Rajkot, for the price of Rs.1,75,000/-. The house was purchased from his nephew, P.W.14, Arvindbhai Bhanjibhai. The appellant had paid Rs.1,35,000/ as part payment of the house and Rs.40,000/- had remained outstanding. As per the prosecution case, all the family members of the appellant had moved to the newly purchased house, but the daughters and the wife of the appellant did not like the newly purchased house and they were pressurizing the appellant to sell the house and purchase another house in some other locality. Therefore, there was a dispute between the daughters and the wife on one hand and the appellant on the other regarding the residential house. Due to the conflict of opinions between the appellant and his wife and daughters, the appellant was agitated. Prior to two days of the incident, the appellant had purchased five liters of petrol in one plastic 'carboy' from Jaynath Petrol Pump, Rajkot, and had kept the 'carboy' in the kitchen. Savitaben, wife of the appellant, had enquired from the appellant as to why he had purchased petrol, as he did not own any vehicle, and the appellant had replied that it might be useful some day. On May 21, 1999, all the family members of the appellants had finished their dinner at around 9 p.m. The appellant and his son, Kishan, aged about five years, had gone to sleep on the terrace of the house whereas his wife Savitaben and four daughters were sleeping in the rear room, which was of the size of 9' x 10 feet, on the ground floor of the house. The appellant around 3 p.m. came down from the terrace and took out 'carboy' filled with petrol and collected petrol in one steel bowl. The appellant sprinkled petrol on his wife and four daughters, who were sleeping in the room. After sprinkling petrol on his wife and four daughters, the appellant lighted a match stick and set them on fire. In the process of sprinkling petrol and lighting the match-stick, the appellant also sustained burn injuries on his left ear, left shoulder and right thumb. Due to sprinkling of petrol, there was a huge fire in the room where the wife and four daughters were sleeping. The appellant, on realising that he would also get burn injuries, ran away from the room by closing the door from outside and went to HUDCO Police Chowky. A Police Constable, who was present at the police chowky, was informed by the appellant that, when he was lighting a lamp of petrol, he sustained burn injuries and his four daughters and wife were seriously caught in a big fire in his house and, therefore, they should be saved. The Police Constable directed the appellant to go to the Civil Hospital for treatment. Therefore, the appellant took an auto-rickshaw and went to the Civil Hospital, where he was examined by P.W.9, Dr. Khimjibhai Dudabhai Makwana, around 3.30 a.m. The Police Constable on duty at the Civil Hospital made an entry in the Register kept in the Emergency Ward of the Civil Hospital, Rajkot, around 3.40 a.m. being Janwajog Entry No.242 of 1999. According to the entry in the station diary, which was admitted in evidence at Exh.83, the appellant around 3.40 a.m. had informed the Police Head Constable, Chhaturbhai, who was on duty at the Civil Hospital, that he had sustained burn injury while he was preparing tea at his house. 3. Due to the huge fire in the house of the appellant, there was a big blast as a result which the of Television-set and other articles were destroyed and therefore the neighbours had, at once, gathered near the house of the appellant. P.W.6, Bhavesh Tulsibhai, who was residing in the adjoining house had called the fire brigade by sending a telephonic message from the house of one Dhirubhai and, within few minutes, the fire fighters had arrived. The neighbours came to know that due to fire, which had taken place in the house of the appellant, four daughters and the wife had lost their lives. All the five dead bodies of four daughters and the wife were removed to the Civil Hospital, Rajkot. Dead bodies of five ladies were brought to the hospital by the brother of the appellant, Maganbhai Narshibhai, P.W.13, who had identified the dead bodies as those of the four daughters and the wife of the appellant. 4. After removal of the dead bodies to Civil Hospital and the Police Head Constable, i.e. Chaturbhai, who was on duty at the Civil Hospital, had informed Bhaktinagar Police Station to the effect that P.W. 9, Dr. K.D. Makwana, on examination of bodies of Savitaben, wife of Vashrambhai, aged 43, Rajuben, daughter of the appellant, aged about 20, Harshidaben, daughter of the appellant, aged about 14, Guddiben daughter of the appellant, aged about 10, and an unknown person who could not be identified, had declared them dead. Accordingly, Entry No.47 of 1999, Exh.85 relating to accidental deaths, was recorded at Bhaktinagar Police Station at 4.20 a.m., and investigation was handed over to PSI, N.K. Chanchaiya. Inquest on all the five dead bodies was held by PSI Mr. Chanchaiya of Bhaktinagar Police Station, and the dead bodies were sent for post-mortem examination. P.W.1, Dr. Bharatkumar Pranshanker Dholakiya, Medical Officer, at Civil Hospital, Rajkot, performed autopsy on the dead bodies of Savitaben, Rajuben and Harshidaben whereas P.W.2, Dr. Jayantilal Harilal Joshi, who was also serving as Medical Officer, at Rajkot Civil Hospital, performed post-mortem of dead bodies of Ushaben, and Guddiben, between 9.30 a.m. and 10.30 a.m. 5. After the post-mortem examination of the five dead bodies, the Medical Officers had given the opinion that the principal cause of death was as a result of shock due to extensive burns all over each body. However, the Medical Officers had preserved 'viscera' of five dead bodies which was sent for chemical analysis to the Forensic Science Laboratory. After the analysis of 'viscera' by a Chemical Analyst, at Junagadh, he had given an opinion that the cause of death was due to cardio respiratory failure resulting from extensive burn injuries. P.W.16, P.I. Kalekhan Alamkhan Kureshi, who was at the relevant time serving at Bhaktinagar Police Station, Rajkot, went to the place of incident i.e. the house of the appellant and drew the panchanama of the scene of offence in the presence of two panchas. The said panchanama was proved by panch No.1, Chhelubha Shivubha, P.W.8. The said panch No.1 had also gone to call the brother of the appellant, namely, Magan Narshi, P.W.13. P.I. Kureshi had also called Circle Inspector by writing a yadi to prepare a map of the scene of offence. Accordingly, P.W.3, Jagdish Naginlal Dave, who was at the relevant time working as Circle Inspector, at Rajkot, had drawn map of the scene of offence, which was admitted in evidence at Exh.20. P.I. Kureshi during investigation had recorded statements of witnesses, Kanchanben Tulsibhai, Bhavesh Tulsibhai, Chhelubha Shivubha, Madhavji Kalabhai, Arvind Banjibhai, Dilipbhai Virjibhai, Maganbhai Narshibhai, etc. Incriminating articles recovered during recording of panchanama from the scene of offence were also sent to the Forensic Science Laboratory for analysis. 6. P.I. Kureshi, on receiving the information that the appellant had sustained burn injuries and was admitted in the burns ward at Civil Hospital, Rajkot, straightaway went to the burns ward of the hospital. The appellant lodged the complaint before P.I. Kureshi, which was recorded between 7 a.m. and 8 a.m. on May 22, 1999 implicating himself. P.W.10, Dr. Patolia had made an endorsement below the complaint lodged by the appellant that, 'patient is conscious and well oriented'. The endorsement was dated May 22, 1999 at 9 a.m. The said complaint was sent to Bhaktinagar Police Station, Rajkot City, which came to be numbered as C.R.No.I-233 of 1999 against the appellant for the offences punishable under Section 302 Indian Penal Code. Investigation of the above crime was handed over to P.I.Kureshi. P.I. Kureshi sent a yadi to the Executive Magistrate, Rajkot City, requesting him to record the dying declaration of the appellant, who had sustained burn injuries and was admitted in the burns ward of the Civil Hospital. The said yadi was received by P.W.4, Executive Magistrate, Naranbhai Ramjibhai Makwana at 10 a.m. P.W.4, Makwana, reached the Civil Hospital, Rajkot, at 10.30 a.m. P.W.4, Makwana, gave his identification as Executive Magistrate to Dr. Shilu who was present in the burns ward and informed the Doctor that he had come to record the dying declaration of Vashram Narshibhai (appellant). Accordingly, Dr. Shilu made an endorsement below the yadi received by the Executive Magistrate that 'patient was conscious'. P.W.4, Mr. Makwana, Executive Magistrate, started recording of dying declaration of the appellant at 10.40 a.m., which was concluded at 11 a.m. After recording of dying declaration was over, an endorsement of the Doctor was obtained by the Executive Magistrate, which indicated that the patient had remained conscious throughout the recording of dying declaration. The said endorsement of the Doctor present at the Hospital was obtained at 11 a.m. The appellant had remained as an indoor patient in the Civil Hospital, Rajkot, upto June 3, 1999. On discharge of the appellant from the hospital, he came to be arrested under an arrest panchnama on June 3, 1999 around 18.30 hrs in connection with C.R. No.I-233 of 1999 of Bhaktinagar Police Station, for offence under Section 302 of the Indian Penal Code. 7. After completion of investigation, P.I. Kureshi, submitted a chargesheet on June 22, 1999 against the appellant for the offences punishable under Sections 302 and 201 of the Indian Penal Code in the Court of learned Chief Judicial Magistrate, Rajkot, which came to be registered as Criminal Case No. 3197 of 1999. As the offence under Section 302 of the Indian Penal Code is exclusively triable by a Court of Sessions, the learned Chief Judicial Magistrate, Rajkot, by his order dated July 15, 1999, committed the case to the Court of Sessions, Rajkot, for trial which came to be numbered as Sessions Case No.123 of 1999. The charge at Exh.1 was framed against the appellant for the offences punishable under Sections 302 and 201 of the Indian Penal Code. The charge was read over and explained to the appellant who pleaded not guilty and claimed to be tried. In order to prove charges against the appellant, the prosecution examined (I) P.W.1, Dr. Bharatbhai Pranshanker Dholakiya, Exh.5, who performed post-mortem on the bodies of deceased Savitaben, Rajuben, and Harshidaben, (II) P.W.2, Dr. Jayant Harilal Joshi, Exh.13, who performed post-mortem on the bodies of deceased Ushaben and Guddiben; (III) P.W.3, Circle Inspector, Jagdishchandra Naginlal Dave, Exh.18, who prepared map of scene of offence, (IV) P.W.4, Executive Magistrate, Naranbhai Ramjibhai Makwana, Exh. 76, who recorded dying declaration of the appellant, (V) P.W.5, Kanchanben Tulsibhai, Exh.78, neighbour of the appellant; (VI) P.W.6, Bhavesh Tulsibhai, Exh.79, also a neighbour of the appellant and son of P.W.5, Kanchanben; (VII) P.W.7, Madhavji Kalabhai, Ex.80, fruit vendor who had helped the appellant by giving loan of Rs.25,000/-; (VIII) P.W.8, Chhelubha Shivubha, Exh.81, neighbour of the appellant who had also acted as panch at the time of drawing of the panchanama of scene of offence; (IX) P.W.9, Dr. Khimjibhai Dudabhai Makwana, Exh.95, who had examined the appellant at the Civil Hospital, Rajkot, on May 22, 1999, (X) P.W.10, Dr. Sanjaybhai Muljibhai Patolia, Exh.97, who had made endorsement below the complaint lodged by the appellant and the dying declaration recorded by the Executive Magistrate; (XI) P.W.11, Abidali Siddiqmiyan Kadri, Exh.99, ASI, who had sent the complaint lodged by the appellant to Bhaktinagar Police Station and who had handed over investigation to P.I. Kureshi; (XII) P.W.12, Dilipbhai Virjibhai, Exh.102, who was working as Cashier at Jagnath Petrol Pump, from where the appellant had purchased five liters of petrol; (XIII) P.W.13, Maganbhai Narshibhai, Exh.103, brother of the appellant; (XIV) P.W.14, Arvind Bhanjibhai, Exh.104, who is nephew of the appellant and from whom the appellant had purchased the house where the incident had taken place. (XV) P.W.15, ASI, Dilubha Jetnubha, Exh.105 who had entered the message, which was received from the Civil Hospital, in the station diary of the Bhaktinagar Police Station on May 22, 1999 around 3.40 a.m. and (XVI) P.W.16, P.I. K.A. Kureshi, Exh. 106, who had recorded complaint lodged by the appellant, and carried out investigation of C.R.No.I-233 of 1999. The prosecution also produced the following documentary evidence to prove the charges against the appellant: (1) Yadi Exh.6 sent by the Bhaktinagar Police Station to the Medical Officer, Civil Hospital, Rajkot, to perform post-mortem of dead body of Savitaben; (2) Post-mortem notes of body of Savitaben, Exh.7; (3) Certificate of cause of death of Savitaben, Exh.8; (3) Post-mortem notes of body of Rajuben Exh.9; (4) Certificate of cause of death of Rajuben Exh.10; (5) Post-mortem notes of body of Harshidaben Exh.11; (6) Certificate of cause of death of Harshidaben Exh.12; (7) Post-mortem notes of Ushaben,Exh.14; (8) Certificate of cause of death of Ushaben, Exh.15; (9) Post-mortem notes of body of Guddiben Exh.16 (10) Certificate of cause of death of Guddiben, Exh.17; (11) yadi sent to the Circle Inspector to draw map of scene of incident, Exh.19; (12) map of scene of incident, Exh.20; (13) yadi sent by Police Head Constable, who was posted at the Civil Hospital, Rajkot, indicating reasons given by the appellant for sustaining burn injuries which were also entered in the station diary of Bhaktinagar Police Station at Exh.21; (14) yadi sent to PSI, Chanchaiya, IPSO, Bhaktinagar Police Station, Exh.22, (15) inquest panchanama of five dead bodies Exh.23; (16) panchanama of physical condition of the appellant Exh.24; (17) forms sent to FSL with regard to visceras collected from the dead bodies, Exh.25 to Exh.28; (18) receipts of FSL, Exh.29 to Exh.34; (19) reports of FSL with regard to chemical examination of visceras Exh.29 to Exh.34; (20) Entry of telephone message recorded by the fire brigade of Rajkot Municipal Corporation, Ex.50; (21) arrest memo of the appellant, Exh.61; (22) reports of FSL, Exh.63 to Exh.72; (23) yadi sent to the Executive Magistrate to record dying declaration of appellant Exh.77; (24) panchanama of scene of incident Exh.82; (25) entries recorded in Bhaktinagar Police Station, with regard to incident as narrated by the appellant at Exh.83 to Exh.87; (26) arrest panchanama of the appellant, Exh.88; (27) true copies of log-sheet Exh.90; (28) rough map prepared by the IO at the scene of offence at Exh.89; (29) injury certificate of the appellant at Exh.96; (30) report under Section 157 of the Code of Criminal Procedure handing over investigation to P.I.K.A.Kureshi, Exh.100; and (31) complaint lodged by the appellant, Exh.107. 8. After recording of the evidence of prosecution witnesses was over, the learned Additional Sessions Judge explained the appellant the circumstances appearing against him and his statement came to be recorded under Section 313 of the Code of Criminal Procedure. The appellant stated that he did not want to examine any witness in his defence. In reply to the questions put to the appellant by the learned Additional Sessions Judge, generally, the case of the appellant was that of denial. However, during the course of recording of further statement, the appellant tendered his written explanation-cum-reply at Exh.109 in vernacular language. The written reply was taken on record by the learned Additional Sessions Judge on February 21, 2000. Free English translation of written explanation-cum-reply at Exh.109 is as under: "I the undersigned respectfully state that my explanation in this case is as under: (1) The correct version of the incident is that I was thinking to commit suicide before the incident. So I brought petrol on the day of the incident and I thought to commit suicide in the night of the incident. Therefore, I took out petrol in the muddamal bowl. At that time weight of petrol was felt less in weight and I was going by carrying the bowl trembling and the bowl had fallen down from my hand and petrol spread around. Thereafter again I took out petrol in the bowl and at that time petrol was spilt on the cot as my leg got struck with the cot of my wife. Thereafter, I sat for sometime and put the petrol can and the bowl in the kitchen. I dropped the idea of committing suicide. After some time I ignited the stove and suddenly there was a blaze and fire. I was not knowing that petrol might have been leaked from the can. I also got burnt and I came out of the house. In the meantime, the fire increased quickly and the smoke started coming out. I shouted and went to the police chowky and told to call the fire brigade. They sent me to the hospital. Thereafter, I came to know that my wife and daughters have expired due to burns. I have neither put them on fire nor killed. (2) After purchasing this house, I purchased another house as we did not like this house. I was trying to sell this house. (3) It is not true that I have killed my wife as she did not like the house. I am innocent and it is required to declare me innocent." 9. The learned Additional Sessions Judge, on appreciation of oral as well as documentary evidence and after hearing arguments advanced by the learned Additional Public Prosecutor and the learned counsel for the defence, concluded that the wife of the appellant and four daughters had succumbed to serious burn injuries sustained by them in the fire and the said fact was proved by the evidence of the Medical Officers, namely, P.W.1, Dr. Bharat Pranshanker Dholakiya and P.W.2, Dr. Jayantilal Harilal Joshi. The learned Additional Sessions Judge also concluded that, as per the certificate of the Doctors, the cause of death of all the five persons was due to shock resulting from extensive burn injuries all over the body. The learned Additional Sessions Judge noticed that in this case, there was no direct evidence tendered by the prosecution against the appellant and that the entire prosecution case rests on circumstantial evidence. The learned Additional Sessions Judge considered the circumstances brought on record and concluded that the following circumstances, as enumerated in paragraph 6 of the judgment, were proved by the prosecution against the appellant beyond reasonable doubt. (1) A dispute was going on between the appellant and the wife and the daughters about the house in which they were residing. (2) Though the appellant did not possess any vehicle, he had purchased five liters of petrol and had kept in a plastic can in the kitchen. (3) On the day of the incident, after finishing the dinner, all the family members had gone to sleep and, at about 3 a.m. the incident had taken place when the appellant was present in the house. (4) The appelant had poured petrol on his wife and four dauhters who were asleep and had set them on fire which had resulted in their death, whereas the appellant had placed his minor son in safe place i.e. on the terrace and had saved his life. (5) The fire, which had taken place, was so huge that all the five ladies were roasted alive because of use of highly inflammable substance, namely, petrol. The appellant had poured entire five liters of petrol on the bodies of five ladies, with the result that they had no chance to escape from the interior room, wherein, they were sleeping. (6) The appellant had not tried to save the lives of five ladies nor did he try to put out the fire, but, instead, he had ran away from the house and gone to the hospital, where, he had informed that he had sustained burn injuries due to flames of kerosene stove while preparing tea. (7) At the time of admission in the hospital, the appellant had not informed or declared that his wife and four daughters had sustained burn injuries due to fire which had taken place due to sprinkling of petrol on the bodies of the wife and four daughters. (8) The report of Forensic Science Laboratory Exh.41 and the panchanama of the place of incident clearly indicated that, from the place of incident, the bowl, half-burnt pieces of quilt, and coir thread of wooden cot were found, in which, the presence of petrol was detected. (9) The defence raised by the appellant, in his written reply Exh.109, namely that he wanted to commit suicide and, therefore, he had filled petrol in a bowl and due to his nervousness, petrol got splashed over the cot on which the wife was sleeping and, thereafter, he had again gone to fill petrol in the bowl which also got splashed in the room, where his wife and four daughters were sleeping, and, thereafter, as he was preparing tea on a kerosene stove, there was a huge fire in the house, was not probable and cannot be believed. (10) The theory of committing suicide was totally false and got-up by the appellant as the petrol was not detected on his body. (11) The theory about fire having taken place due to electric short-circuit was