CR.A/47320/2000 1/10 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No.473 of 2000 For Approval and Signature: HONOURABLE MR.JUSTICE BHAGWATI PRASAD AND 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? ========================================================= = BHALABHAI RAIYJIBHAI GOHIL - Appellant Versus STATE OF GUJARAT - Respondent ========================================================= = Appearance : MS SADHANA SAGAR for Appellant. MR MAULIK G NANAVATI, APP for Respondent. ========================================================= = CORAM : HONOURABLE MR.JUSTICE BHAGWATI PRASAD and HONOURABLE MR.JUSTICE BANKIM N. MEHTA Date : 20/10/2008 ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE BANKIM.N.MEHTA) CR.A/47320/2000 2/10 JUDGMENT The appellant, who is convicted under Section 302 of the Indian Penal Code [“IPC” for short] and sentenced to suffer life imprisonment and to pay fine of Rs.2,000=00, in default R.I. for six months, has filed this appeal under Section 374 of the Code of Criminal Procedure, 1973. 2. Madhuben Bhalabhai, wife of the appellant, lodged First Information Report with Aanklav Police Station on 15.02.1999 alleging that before about eight years of the incident, she was married to the appellant; that she has no issue out of the marriage; that since last four years her husband-appellant was treating her with cruelty and on the previous day at about 6.30 in the evening, the appellant said that he did not want her and set her on fire by pouring kerosene over her and igniting match-stick; that her mother-in-law Gajraben extinguished the fire. 3. On the basis of the First Information Report, an offence under Sections 498A and 307 IPC was registered as I-C.R.No.21 of 1999 by Aanklav Police Station and investigation was started. During the course of treatment, Madhuben died and, therefore, Section 302 of the IPC was added. On completion of the investigation, CR.A/47320/2000 3/10 JUDGMENT charge sheet for the offence punishable under Sections 498A and 302 IPC was filed against the accused in Borsad Court. As the offence was triable by Court of Sessions, the case was committed to Sessions Court and it was registered as Sessions Case No.144 of 1999. 4. The learned Additional Sessions Judge, Kheda at Nadiad, framed charge Exhibit 4 for the aforesaid offences. The accused pleaded not guilty to the charge and claimed to be tried and, therefore, prosecution adduced the evidence. On completion of recording of evidence, incriminating circumstances appearing in the evidence were explained to the accused and further statement of the accused as required under Section 313 of the Code was recorded. The accused in his further statement filed a written statement stating that at the time of incident, he was at the field and on hearing shouts, he went to his house and saw that his wife was burning and that false complaint is filed against him. 5. After hearing, the learned trial Judge came to the conclusion that the prosecution has proved the case beyond reasonable doubt and, therefore, convicted the accused and sentenced him as mentioned hereinabefore. CR.A/47320/2000 4/10 JUDGMENT Feeling aggrieved by the aforesaid judgment and order of conviction, the appellant-accused has filed this appeal. 6. We have heard Ms.Sadhna Sagar, learned advocate for the appellant and Mr.Maulik G. Nanavati, learned Additional Public Prosecutor for the respondent-State. We have also perused the Record & Proceedings of the trial Court and the impugned judgment. 7. Ms.Sagar, learned advocate has submitted that the marriage period between the appellant and the deceased was more than seven years and as the deceased had no issue, she had set herself on fire and the appellant is falsely implicated in the offence. She has also submitted that the dying declarations and the First Information Report contain numerous contradictions and, therefore, the learned trial Judge could not have relied upon such evidence and, hence, the impugned judgment is required to be set aside. 8. Mr.Nanavati, learned Additional Public Prosecutor has supported the impugned judgment and submitted that the dying declarations are consistent and defence witnesses examined by the accused have also CR.A/47320/2000 5/10 JUDGMENT supported the prosecution case. Therefore, the learned trial Judge was justified in relying upon such evidence and, therefore, no interference is warranted in the impugned judgment. 9. It appears that the entire case is based upon dying declarations. Deceased Madhuben gave oral dying declarations one before Lilaben Madhabhai Gohil (P.W.-1), another before Dr.Subhashchandra Jethanand Ramani (P.W.- 4). The deceased also lodged First Information Report and a dying declaration was recorded by the Executive Magistrate. 10. Prosecution Witness No.1-Lilaben Madhabhai Gohil (Exhibit 16) in her deposition deposed that there was quarrel between the accused and deceased Madhuben and after the incident, she went to the house of Madhuben, who informed her that the accused had set her on fire by pouring kerosene. In cross-examination except denial there is no cross examination with regard to this deposition. In view of the fact that the injured died after making this statement, this would be her dying declaration as it is related to the circumstances of the transaction which resulted in her death. Therefore, there is no reason to disbelieve this statement. CR.A/47320/2000 6/10 JUDGMENT 11. First Information Report (Exhibit 23) also indicates that there was physical ill-treatment from the appellant to the deceased since four years before the date incident and the appellant poured kerosene over the deceased and ignited the match stick. The First Information Report also indicates that the Medical Officer made endorsement over the First Information Report indicating that the patient was conscious and the information was recorded in his presence. This indicates that when the deceased lodged FIR, she was conscious and had given the details of the incident implicating the appellant in the offence. The evidence of P.W.-4 Dr.Ramani Subhashchandra Jethananad (Exhibit 20) indicates that on 15.02.1999 at about 4.35 in the morning Madhuben was brought to the Primary Health Centre where the witness was discharging duty as Medical Officer and he was informed by Madhuben that on the previous day at about 7.00 in the evening, she was set on fire by her husband. The evidence also indicates that First Information was recorded in his presence and the informant was conscious and was able to speak. In view of the fact that the witness is an independent person, who gave primary treatment to the CR.A/47320/2000 7/10 JUDGMENT deceased, there is no reason to disbelieve his version with regard to oral statement made to him by the deceased. This would be another statement in the form of dying declaration and has to be accepted as it is consistent with the statement made earlier with regard to cause of her death. 12. Executive Magistrate Lataben Rohitchandra (P.W.-5, Exhibit 26) recorded dying declaration on 15.02.1999 at 3.00 in the noon. The evidence of this witness indicates that when she went to Madhuben with yadi to record dying declaration, she was conscious and the Medical Officer of the hospital also made an endorsement below the yadi in that regard. The Yadi also indicates that it was written to Executive Magistrate summoning her to record dying declaration. On perusal of the yadi (Exhibit 7), it appears that the doctor has made an endorsement at 3.00 p.m. that the patient was conscious. 13. Dying declaration (Exhibit 27) indicates that it was recorded between 3.45 and 4.25 in the noon. It was in question and answer form. It indicates that the appellant poured kerosene over the deceased and ignited match-stick. The defence has not been able to elicit from CR.A/47320/2000 8/10 JUDGMENT the cross-examination that the declaration was not reliable. This evidence clearly establishes that when the deceased was being treated at hospital, a yadi was sent to Executive Magistrate to record dying declaration. On receipt of yadi, the Executive Magistrate went to the hospital, ascertained from the Doctor that the patient was conscious and was in a condition to give her dying declaration. Therefore, the Executive Magistrate obtained necessary endorsement of the Doctor on yadi and recorded the dying declaration. There is nothing to indicate that the deceased was not in a fit state of mind to give her statement. The dying declaration gives in detail the circumstances of the transaction which resulted in her death. It appears to be voluntary and truthful. Therefore, it is required to be accepted. 14. The evidence of Dr.Kishore Pramodray Desai (P.W.-6, Exhibit 28), who performed postmortem, indicates that the deceased had burn-injuries and such injuries were sufficient in the ordinary course of nature to cause death. Postmortem report (Exhibit 30) indicates the injuries sustained by the deceased and cause of death. In view of this evidence, it becomes clear that the deceased died on account of shock due to burn injuries and their complications. Therefore, it is proved beyond reasonable CR.A/47320/2000 9/10 JUDGMENT doubt that the injuries were homicidal in nature. 15. The accused examined Defence Witness No.1 – Ramesh A. Waghela at Exhibit 38. It appears from his evidence that deceased Madhuben had informed him that the appellant poured kerosene over her and ignited her with match stick. It also indicates that there were quarrels between the appellant and the deceased. This statement also can be treated as oral dying declaration. In view of the fact that the defence witness has supported the prosecution case, there is no reason to disbelieve this witness as it also connects the appellant with the offence. Defence Witness No.2-Gajraben (Exhibit 39) is the mother of the appellant, but her evidence does not indicate that the appellant was not involved in the offence. The evidence of Defence Witness No.3 Champaben Somabhai Gohil (Exhibit 40), who is the wife of younger brother of the appellant, indicates that there were quarrels between the appellant and the deceased. This evidence has lent support to the prosecution case with regard to cruelty and it does not help the defence. 16. In view of the above, there is overwhelming evidence implicating the appellant in the offence in the form of dying declarations. Even the witnesses examined CR.A/47320/2000 10/10 JUDGMENT as defence witnesses have also supported the prosecution case. The oral dying declarations as well as dying declaration recorded by the Executive Magistrate indicate the complicity of the appellant in the offence. Therefore, the learned trial Judge was justified in convicting the appellant. So called contradictions in the evidence are minor. In view of the fact that the defence witnesses supported the prosecution case, these contradictions do not help the appellant. Therefore, no interference is warranted in the impugned judgment and the appeal is liable to be dismissed. For the foregoing reasons, the appeal fails and is dismissed. The judgment and order of conviction and sentence dated 31st March 2000 rendered by the learned Additional Sessions Judge, Nadiad in Sessions Case No.144 of 1999 is hereby confirmed. Muddamal be disposed of as directed by the trial Court. [Bhagwati Prasad, J.] [Bankim N. Mehta, J.] Rajendra