CR.A/781/1999 1/32 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 781 of 1999 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 ? ========================================================= ALI FAKHIR MAMAD DAFER - Appellant(s) Versus STATE OF GUJARAT - Opponent(s) ========================================================= Appearance : MR YOGESH S LAKHANI for Appellant(s) : 1, MR HM PRACHHAK, APP for Opponent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE A.L.DAVE and HONOURABLE MR.JUSTICE BANKIM.N.MEHTA Date : 23/08/2006 ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE A.L.DAVE) Present Appeal arises out of the judgment and CR.A/781/1999 2/32 JUDGMENT order rendered by the learned Additional Sessions Judge, Jamnagar in Sessions Case No.77 of 1994 on 31st May, 1999. The appellant who was the accused before the Sessions Court came to be tried for the offence of murder of his wife Roshanben by setting her on fire after pouring kerosene over her at about 3.00 p.m. on 4th May, 1994 in their residential house at Dafervas, Behind Vora Boarding at Dhrol. 1.1 As per the prosecution case, the appellant and his wife Roshanben were staying at Dafervas, Behind Vora Boarding at Dhrol around the time of the incident. The brother and sister of the deceased were also staying in the vicinity. On the day of the incident, the appellant came home in a drunken condition. The deceased, therefore, rebuked him. As a result, he got annoyed and poured kerosene over the deceased and set her to fire. The deceased ran out of the house shouting for help. Hearing the shouts, brother of the deceased Haji Suleman rushed to help her and extinguished the fire. The deceased was then taken to Community Health Centre at Dhrol but because she had sustained extensive burns, she was referred to Irwin Group of Hospitals at Jamnagar. The police was informed and in turn, police came to the hospital, recorded the F.I.R. of the deceased while summoning the Executive Magistrate for recording the dying declaration. On the basis of the F.I.R., offence was registered and investigated. The Executive Magistrate also arrived and recorded dying declaration of the deceased. After proper investigation, the investigating agency, having found sufficient material against the appellant, filed chargesheet against him in the Court of J.M.F.C., Dhrol. However, since the offence registered against the appellant was triable exclusively by the Court of Sessions, the case was committed by CR.A/781/1999 3/32 JUDGMENT learned J.M.F.C., Dhrol to the Court of Sessions at Jamnagar and Sessions Case No.77 of 1994 came to be registered. 1.2 Learned Additional Sessions Judge framed charge at Exh.11. The accused – appellant pleaded not guilty to the charge and claimed to be tried. The prosecution led evidence and the learned Additional Sessions Judge, after recording the statement of the accused under Section 313 of the CrPC and hearing the learned advocate for the accused as well as the learned Public Prosecutor, came to the conclusion that the prosecution was successful in establishing the charge of murder against the accused – appellant. The learned Additional Sessions Judge sentenced the accused – appellant to undergo imprisonment for life and to pay fine of Rs.1,000/-, in default, to undergo Simple Imprisonment for six months. Aggrieved by the said judgment and order, the present appeal is preferred. 2. We have heard learned advocate Mr. Lakhani for the appellant and learned APP Mr. Prachhak for the State. We have been taken through the record and proceedings by both of them which is before us. 3. Learned advocate Mr. Lakhani has raised a contention that the Trial Court has committed an error in appreciating the evidence. The Trial Court has given undue weightage to the dying declaration made before the Executive Magistrate and the F.I.R. recorded by a police officer. Mr. Lakhani submitted that there is a chain of circumstances in form of contemporaneous record to indicate that the appellant was not involved in the incident. CR.A/781/1999 4/32 JUDGMENT 3.1 Mr. Lakhani, in order to substantiate his contention, submitted that the case paper of Community Health Centre at Dhrol (Exh.64) contains an endorsement implicating the appellant which is made, admittedly, subsequently by the doctor. It is a clear case of interpolation as the ink is different. The explanation given by the doctor would not inspire confidence if Exh.64 is seen. Mr. Lakhani also submitted that the Refer Note given while sending the patient to Irwin Hospital at Jamnagar, the telephone message recorded by Dhrol Police (Exh.54) and the case papers at Irwin Hospital at Jamnagar (Exh.23) do not implicate the appellant. Mr. Lakhani submitted that Dr. Jacob who has recorded history in that case paper has not been examined at all. The history which is written down in the case paper (Exh.23) has interpolations and no explanation in that regard is tendered by the prosecution. There is no evidence to show that the deceased was in a fit mental state to give declaration when the F.I.R. was recorded and when the dying declaration was recorded by the Executive Magistrate. The deceased was given a sedative and, therefore, this would be important. Mr. Lakhani also submitted that except some parts of the face, the entire body of the deceased had sustained burns injuries, as per the medical evidence. The injured parts were applied medicine and were bandaged. If that is so, thumb impression could not have been obtained by the police officer as well as the Executive Magistrate who both claim to have taken thumb impression of the deceased. The thumb impressions which are found on the F.I.R. as well as the dying declaration are clear impressions of thumb and not smudged. 3.2 Mr. Lakhani submitted further that the above factors will not only affect the prosecution case in CR.A/781/1999 5/32 JUDGMENT respect of what is recorded by the doctors by way of case history but would have an impact on the dying declaration recorded by the Executive Magistrate as well as F.I.R. recorded by the police officer. 3.3 Mr. Lakhani, while drawing our attention to deposition of Dr. Bharat Patel and the Executive Magistrate, indicated that they are contrary to each other. Dr. Jani has stated in his deposition that the skin of the deceased was peeled off which should again have an impact on the prosecution case of the deceased having given thumb impression on the dying declaration. 3.4 Mr. Lakhani submitted that the place of incident is a small room where kerosene is found at only one place. If the incident had occurred in the manner in which it is alleged to have occurred, there would have been some indications at the place of incident in the form of sprinkling of kerosene at various places, some indications of resistance or scuffle which is totally absent. Mr. Lakhani submitted that pouring of kerosene would take some time, may be few moments, but that time would be sufficient for any person to make an attempt to flee from the place or at least to raise shouts for help. In the instant case, there is no evidence to this effect. The story emerging from the dying declaration, therefore, becomes improbable. 3.5 Mr. Lakhani submitted that the material witnesses have turned hostile to the prosecution case. The brother of the deceased, sister of the deceased, mother of the deceased and sister-in-law of the deceased have all turned hostile. Mr. Lakhani submitted that their depositions cannot be discarded simply because they have not supported the prosecution case. Whatever piece CR.A/781/1999 6/32 JUDGMENT of evidence is found to be truthful or reliable may be accepted by the court. Mr. Lakhani submitted that it emerges from the evidence of these witnesses that the deceased was a strong-headed lady, a little crack in the head and was a shirker. It also emerges from the evidence that there were no disputes between the appellant and the deceased and that the appellant was not in the habit of taking liquor. It also emerges from their evidence that the deceased had given an oral dying declaration to the effect that she had committed suicide herself. There is no reason for not believing this version of these witnesses who are close relatives of the deceased and, therefore, it cannot be said that the prosecution was successful in establishing the case against the appellant to the hilt. The case at least becomes doubtful and benefit ought to have been given by the Trial Court to the appellant – accused. Mr. Lakhani, therefore, submitted that the appeal may be allowed and the impugned judgment and order may be set aside. 4. Learned APP Mr. Prachhak has opposed this appeal. According to him, the relatives of the deceased appear to have been won over by the accused – appellant. Mr. Prachhak submitted that it is probably a social compulsion on the part of these witnesses that has prompted them to withdraw their support to the prosecution. Mr. Prachhak submitted that it has come in evidence that the sister of the deceased is married to the brother of the accused – appellant and, therefore, it is quite natural that these witnesses have taken a somersault. 4.1 Mr. Prachhak submitted that there are three oral dying declarations and two dying declarations in form of history written down by the doctor, the F.I.R. and the CR.A/781/1999 7/32 JUDGMENT dying declaration before the Executive Magistrate. Mr. Prachhak submitted that there are some discrepancies so far as the recording of case history by the doctors is concerned. Mr. Prachhak also submitted that the witnesses before whom oral dying declarations were made have also not supported the prosecution case but the F.I.R. as well as the dying declaration recorded by the Executive Magistrate are recorded by the officers concerned in ordinary course of their official business and no defects, which would go to the root of the dying declarations, are indicated. Mr. Prachhak submitted that no doubt an attempt is made to show that the deceased had sustained burns injuries all over the body including the thumb and, therefore, the thumb impression obtained on the dying declaration and the F.I.R. cannot be that of the deceased and, therefore, these two pieces of evidence would be rendered doubtful but according to Mr. Prachhak, that attempt is only an attempt because the police officer who recorded the F.I.R. (Mahmadhussain Ahmedbhai Malek) and the Executive Magistrate (Sumanlal Narbheram Aashra) have both, in terms, stated that medicine was not applied on the thumb nor was it bandaged and thumb impression was taken. Mr. Prachhak submitted that though Havaben (p.w.7) (Exh.31) has stated that her thumb impression was taken on the dying declaration, it seems to be a clear case of a bonafide mistake because her thumb impression was taken by the doctor on case papers for obtaining consent for treatment to the deceased and her version in respect of her thumb impression on the dying declaration, therefore, gets ruled out. 4.2 Regarding the evidence on consciousness and fit state of mind of the deceased, Mr. Prachhak submitted that both the Executive Magistrate as well as the police officer who recorded the F.I.R. have stated in their CR.A/781/1999 8/32 JUDGMENT deposition that they tested and were satisfied about the fit state of mind of the deceased and thereafter recorded the F.I.R. or the dying declaration, as the case may be. There is evidence of Dr. Patel who has certified that the deceased was conscious when the dying declaration was recorded. It has come in his evidence that after the dying declaration was recorded, the deceased was examined and he found her to be conscious. Mr. Prachhak submitted that it is, therefore, clear that the deceased was conscious and was oriented as per the say of the Executive Magistrate and the Police officer. Mr. Prachhak submitted that even the case papers indicate that the deceased was conscious around the time when the F.I.R. and dying declaration were recorded. As regards fit state of mind, Mr. Prachhak submitted that there is no specific endorsement by the doctor but satisfaction of the officer regarding the declaration may be accepted as sufficient because they are independent Government officers and reliance can be placed on their assessment of mental state of the deceased. In this regard, Mr. Prachhak relied on a decision in the case of LAXMAN vs. STATE OF MAHARASHTRA reported in AIR 2002 SUPREME COURT 2973. 4.3 Mr. Prachhak submitted that the Executive Magistrate and the police officer who recorded the F.I.R. are from Jamnagar whereas the deceased was from Dhrol and it is nobody's case that these officers were known either to the deceased or to the accused nor it is anybody's case that they have any axe to grind against the accused. Under the circumstances, their depositions may be accepted at face value. Mr. Prachhak submitted that it is also nobody's case that the deceased had any reason to falsely implicate the appellant and reliance may be placed on a declaration made by a person in whose face CR.A/781/1999 9/32 JUDGMENT death was gaping. Mr. Prachhak further submitted that the Trial Court has examined all these aspects and has recorded a conviction and this court may not interfere with the finding of the Trial Court and the appeal may be dismissed. 5. We have considered rival side contentions and have examined the record and proceedings from the angles suggested by rival sides. 6. From the record and proceedings, it is clear that the prosecution has examined, in all, 24 witnesses. 6.1 Dr. Chetan Biharilal Jani (Exh.27), Dr. Ashokbhai Laljibhai Vader (Exh.60), Dr. Bharat Ambalal Patel (Exh.76) are medical witnesses who had performed post-mortem, had given treatment and had certified the deceased to be conscious at the time of recording dying declaration respectively. Dr. Gulabrai Jethalal Solanki (Exh.22) is the Medical Officer who was working in the Casualty Department on 4th May, 1994 when the deceased was brought there at 6.10 p.m. 6.2 Sumanlal Narbheram Aashra (Exh.14) is the Executive Magistrate who recorded the dying declaration of the deceased which is at Exh.16 and Mahmadhussain Ahmedbhai Malek (Exh.58) is the Police Sub-Inspector who had recorded the F.I.R. Of the deceased which is at Exh.59. 6.3 Witnesses Hajibhai Sulemanbhai (Exh.25), Fatmaben Hajibhai (Exh.26), Mariamben, wife of Jumabhai (Exh.33), Khatijaben, wife of Suleman (Exh.35), Rahematben, wife of Nurmamad (Exh.57), Havaben Rahemanbhai (Exh.31) are close relatives of the deceased CR.A/781/1999 10/32 JUDGMENT who have not supported the prosecution case and are treated as hostile witnesses. 6.4 The dying declaration (Exh.16), panchnama of the place of incident (Exh.21), the medical case papers of the deceased (Exh.23), the post-mortem notes at Exh.30, the inquest panchnama (Exh.39), arrest panchnama of the accused (Exh.40), F.I.R. (Exh.59) are important pieces of documentary evidence on which reliance is placed by both the sides in support of their respective contentions. 7. Hajibhai Sulemanbhai (Exh.25) is the brother of the deceased. He says that the deceased was married to the accused about a year and a half prior to the incident. The appellant was engaged in labour work. He says that his house is located at a distance of about 100 feet from the house of the accused and the two houses can be seen from each other. He says that on the day of the incident, the deceased has not kept the meal ready. His sister (the deceased) was high-headed. The accused asked her about the meal. She told him to wash his hands and in the meantime, she would prepare the meal. His brother-in-law, therefore, moved out of the house and his sister poured kerosene over herself and set herself ablaze. She came out of the house in a burning condition and his brother-in-law tried to extinguish the fire with the help of a towel. He also rushed there and tried to extinguish the fire with the help of a quilt. He asked the deceased and was told that she has set herself ablaze. He took her to Dhrol Hospital without any further questioning and from Dhrol, shifted her to Irwin Hospital at Jamnagar. He says that he saw his sister coming out of the house in a burning condition while he was sitting on the threshold of his house and that his brother-in-law did not set her to fire. CR.A/781/1999 11/32 JUDGMENT 7.1 This witness has been declared hostile. He admits that he would not be able to hear a talk which may transpire in the house of the accused. He says that when his brother-in-law came to his house in the afternoon of that day, he was sitting outside the house. His sister came out of the house in a burning condition after about 10 minutes of his brother-in-law going into the house. He admits, during cross-examination to the Public Prosecutor, that on seeing the deceased in burning condition, he himself, his wife Fatmaben, aunt Havaben and sister Mariam rushed to the spot. He denies to have stated before the police that he asked his sister Roshan as to what happened and she told him that “your brother- in-law has poured kerosene over me and has tried to kill me by setting me ablaze”. She also told that she had rebuked the appellant - accused for drinking and, therefore, the incident has occurred. The witness denies that the accused - appellant was in the habit of drinking liquor. He says that when he took Roshanben to the hospital, the accused was sitting with the child and was crying. 7.1.1 During cross-examination to the defense advocate, the witness says that the deceased was able to speak while she was at home and was not in a position to speak after she was taken to Dhrol hospital. He says that the deceased did not state anything before the doctor at Dhrol nor did the doctor ask her anything. He says that he was with the deceased till she died alongwith his wife and his aunt Havaben. He also says that while he was with the deceased neither the police nor the doctor nor the Magistrate recorded any statement of the deceased. The deceased and the accused were at good terms. CR.A/781/1999 12/32 JUDGMENT 7.2 Witness Fatmaben Haji is examined at Exh.26. She says that the incident occurred around 3.00 p.m.. She and her husband saw Roshan in a burning condition and, therefore, they rushed there and her husband extinguished the fire by throwing a quilt on her. She says that on her husband asking Roshanben, Roshanben told him that she has set herself ablaze. She says that the deceased was strong-headed and was crack in head. She stated that Roshan did not state that her husband has set her to fire. She also says that there was no dispute between the accused and his wife on account of the accused drinking. This witness is also declared hostile. During cross-examination to the Public Prosecutor, she says that she does not know what has transpired between the deceased and the appellant – accused. She says that she has not stated before the police that Roshanben, on being asked, told that her husband Alimamad had come home drunk and on her asking him not to do so, he quarreled with her and poured kerosene over her from a container lying in the house and thereafter, set her ablaze and went away. During cross-examination to the learned advocate for the accused, she has stated that she was with the deceased till she died and neither police nor Executive Magistrate nor the doctor ever recorded any statement. The deceased had sustained burns all over her body. 7.3 Havaben Rahemanbhai is examined at Exh.31. She is the maternal aunt of the deceased. She has been declared hostile and during cross-examination to the Public Prosecutor, she denies to have stated before the police that Roshanben, on being asked, told that her husband had come home in a drunken condition and as a result, there was a quarrel and, therefore, the accused CR.A/781/1999 13/32 JUDGMENT poured kerosene on her and set her to fire and thereafter left. In cross-examination to the learned advocate for the accused, she has stated that while Roshanben was under treatment at Jamnagar, she was present. Roshanben was not in a position to speak and was unconscious and, therefore, the doctor told her to put her thumb impression on the dying declaration (Exh.23) and, therefore, she had put her thumb impression. She states that neither the police nor the Magistrate ever came to record statement of deceased Roshanben and that the deceased expired while she was unconscious. 7.4 Witness Rahemanbhai Jarar is examined at Exh.32. He is the uncle of the deceased. He says that on hearing that Roshan is burning, he rushed to her house and found Roshan in a burning condition and that his son had set out the fire. This witness is declared hostile and denies to have stated before the police that Roshan stated before Haji that her husband had come home drunk which resulted into an altercation and, therefore, the appellant – accused poured kerosene over her and set her to fire. 7.5 Witness Mariam Jumabhai (Exh.33) is the real sister of the deceased who is married to the elder brother of the accused. She has stated in her examination-in-chief that on the day of the incident, when the accused came home for lunch, the lunch was not ready. She says that her sister (the deceased) was a shirker and the accused had to skip his meals many a times. On the relevant day, she asked the accused to sit outside the house and she would prepare the meal and then Roshan set herself to fire. During cross-examination to learned Public Prosecutor, she denies the factum of the deceased having stated about the accused setting her to CR.A/781/1999 14/32 JUDGMENT fire. She also denies a suggestion that the deceased was conscious when she was in the hospital. She denies a suggestion that she is not supporting the prosecution case and is trying to help the accused as he is her brother-in-law (husband's younger brother). 7.6 Witness Nurmamad Saleman is examined at Exh.34. He is the brother of the deceased. He pleads total ignorance of the cause of the incident and is declared hostile. He denies to have stated before the police about the oral dying declaration been made by the deceased before his brother Haji. 7.7 Khatijaben Suleman is examined at Exh.35. She is the mother of the deceased. She says that the deceased told Haji that she had herself set herself to fire. She says that there were no disputes between the accused and the deceased. She is declared hostile and during cross-examination to learned Public Prosecutor, she denies to have stated before the police about the oral dying declaration being made by the deceased before Haji implicating the accused – appellant. She admits that her daughter Mariam is married to brother of the accused. She denies that she is not telling the truth because of this relationship. 7.8 Witness Saarbai Ismail is examined at Exh.36. She also does not support the prosecution case. She is the sister-in-law (brother's wife) of the deceased. She also denies during cross-examination to the Public Prosecutor, on being declared hostile, that she had stated before the police about her coming to know about the accused having set the deceased to fire. 7.9 Raziaben Sumarbhai (Exh.37) is another sister- CR.A/781/1999 15/32 JUDGMENT in-law of the deceased. She also does not support the prosecution case and is declared hostile and denies to have stated before the police that the accused had set the deceased to fire on account of dispute on the accused drinking liquor.