CR.A/1008/1998 1/33 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 1008 of 1998 For Approval and Signature: HONOURABLE MR.JUSTICE A.M.KAPADIA HONOURABLE MS.JUSTICE H.N.DEVANI ========================================================= 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 ? ========================================================= BHARATBHAI SHANKERBHAI PANCHAL - Appellant(s) Versus STATE OF GUJARAT - Opponent(s) ========================================================= Appearance : MR NITIN M AMIN for Appellant MR R.C.KODEKAR, ADDL. PUBLIC PROSECUTOR for Respondent ========================================================= CORAM : HONOURABLE MR.JUSTICE A.M.KAPADIA and HONOURABLE MS.JUSTICE H.N.DEVANI Date : 05/09/2007 ORAL JUDGMENT (Per : HONOURABLE MS.JUSTICE H.N.DEVANI) CR.A/1008/1998 2/33 JUDGMENT 1. This appeal is directed against the judgement and order dated 28th September, 1998 passed by learned Additional Sessions Judge, Court No.XVI, Ahmedabad in Sessions Case No.1 of 1998 whereby the appellant has been convicted for the offences punishable under sections 302 and 307 of the Indian Penal Code. For the offence under section 302 of the IPC, the appellant has been sentenced to imprisonment for life and a fine of Rs.1000/- and in default rigorous imprisonment for a period of one month and for the offence under section 307 of the IPC, he has been sentenced to undergo rigorous imprisonment for seven years and a fine of Rs.1000/- and in default to undergo further rigorous imprisonment for a period of one month. 2. The case of the prosecution as per the First Information Report and as unfolded during the trial is that on 3.8.1998 at about 17:30 hours, the complainant Smitaben (hereinafter referred to as “the deceased”) who had been admitted in the Burns Ward of Shardaben Hospital, had lodged a complaint before the Police Inspector, Bapunagar Police Station, stating that she was residing with her husband and daughter Keta, aged nine years at Bapunagar in Ahmedabad. She had been married to the accused approximately ten years prior to the date of the incident and during the said period she had been subjected to untold harassment at the hands of her CR.A/1008/1998 3/33 JUDGMENT husband, but she had been tolerating the same. On 3.8.1997 at about 11:00 a.m., her husband came home in a drunken condition whereupon she asked him why he had consumed liquor and come. On her saying so, he gave her slap upon slap but she did not utter a word. At about 2 o’clock in the afternoon her husband told her to leave the house, whereupon she told him that she had called up her brother and he would come in the evening and she would go away then. Whereupon he was enraged. At that time she and her daughter were in the big room of their house, her husband came with a gallon tin filled with kerosene and sprinkled kerosene on her and her daughter Ketu and set them ablaze by lighting a match stick. Both she and her daughter were ablaze and started shouting whereupon their neighbours Sarojben and Alkeshbhai who lived in the house opposite to theirs, came running there and doused the fire by pouring water on them. Thereafter some neighbour fetched a rickshaw, whereupon she took her daughter and sat in the rickshaw and her husband also came and sat down beside her. The rickshaw-wala was asked to take them to Shardaben Hospital. However, her husband alighted from the rickshaw at Saraspur and she and her daughter went in the same rickshaw to Shardaben hospital where they were admitted in the Burns ward. The complainant and her daughter both were fully conscious. As per the say of the complainant her husband was not doing any work since about two and a half years CR.A/1008/1998 4/33 JUDGMENT and was habituated to drinking liquor. He would consume liquor everyday, and on her telling him not to drink liquor he would beat her up and harass her. On 3.8.97 also he had beaten her for the same reason and thereafter poured kerosene on her and her daughter and set them ablaze, as a result of which they had both sustained severe burn injuries. After recording the complaint, the same was forwarded to the P.S.O. Bapunagar Police Station where it was registered at Bapunagar Police Station I C.R. No.200 of 1997 for the offences punishable under section 307 and 498A of the Indian Penal Code. 3. Thereafter the Investigating Officer had recorded the statement of Keta and taken steps to seize the clothes worn by both the burn patients. Subsequently, an officer from the Forensic Science Laboratory had arrived at the scene of offence, whereupon in his presence scene of offence panchnama was drawn in the presence of panchas. Muddamal articles No.1 to 8 were recovered under instructions of the said officer and sealed in the presence of panchas. On 4.8.97 at 10:45 hours, the accused was arrested and panchnama of his physical condition was drawn and the clothes worn by him were seized in the presence of panchas. As the accused appeared to be intoxicated, separate proceedings were initiated in that regard. Subsequently on 7.8.97, the deceased succumbed to the injuries; hence the Investigating CR.A/1008/1998 5/33 JUDGMENT Officer had submitted a report to the Learned Chief Judicial Magistrate, for addition of Section 302 of the Indian Penal Code. 4. Upon conclusion of the investigation, the Investigating Officer submitted charge sheet in Criminal Case No.833 of 1997 in the Court of the learned Chief Metropolitan Magistrate, Ahmedabad for the offences punishable under Sections 302, 307 and 498A of the Indian Penal Code. 5. As the offence under section 302 of the Indian Penal Code is exclusively triable by the Court of Sessions, the learned Chief Metropolitan Magistrate, by an order dated 22.12.1997 committed the case to the Court of Sessions, Ahmedabad where it was numbered as Sessions Case No.1 of 1998. 6. The learned Sessions Judge, to whom the case was made over for trial, framed Charge at Exh.2 for the offences punishable under sections 302 and 307 of the Indian Penal Code. The charge was read over and explained to the accused, who pleaded not guilty to the charge and claimed to be tried. 7. In order to establish the charge against the accused, the prosecution examined the following eleven witnesses: PW-1 Keta Bharatkumar Panchal, Exh.11 CR.A/1008/1998 6/33 JUDGMENT Daughter of the deceased and an injured eye witness. PW-2 Ranjitsinh Virsinhbhai Gohel, Exh.19 Executive Magistrate who recorded the dying declaration of the deceased. PW-3 Dr. Ashwinbhai Shanabhai Lakhani, Exh.24 Medical Officer who had treated the deceased and Keta at the Shardaben Hospital. PW-4 Kamlaben Jayantibhai Panchal, Exh.31 tenant of the accused – declared hostile by the prosecution. PW-5 Bharat Bhagwandas Kansara, Exh.32 tenant of accused – declared hostile by the prosecution. PW-6 Dr. Hasumatiben Ranchhodbhai Patel, Exh.33 Medical Officer who had conducted autopsy on the dead body of the deceased. PW-7 Maheshkumar Ambalal, Exh.36 – Panch of Scene of Offence Panchnama. PW-8 Rajesh Jagdishchandra Panchal, Exh.38 Brother of the deceased. PW-9 Ratansinh Amarsinh Chauhan, Exh.40 – Police Constable who had recorded the vardhy under instructions of the R.M.O. CR.A/1008/1998 7/33 JUDGMENT PW-10 Ramjibhai Nathubhai, Exh.42 – Head Constable, Bapunagar Police Station. He had noted down the vardhy given by Constable Ratansinh. PW-11 Kuberbhai Karsandas Patel, Exh.46 – Investigating Officer. 8. The prosecution has also produced and proved the following documentary evidence and has placed reliance on the contents thereof: 1. Panchnama of recovery of clothes of the deceased and PW-1 - Exh.9 2. Panchnama of the physical condition of the accused - Exh.10 3. Inquest Panchnama – Exh.11 4. Medical Certificate of the accused – Exh.12 5. Medical Certificate of injured Keta – Exh.13 6. Despatch Note – Exh.14 7. Report of Forensic Science Laboratory – Exh.15 8. Forensic Science Laboratory opinion – Exh.16 9. Cause of death certificate – Exh.17 10. Yadi sent to Executive Magistrate – Exh.20 11. Dying Declaration of Smitaben – Exh.21 12. Statement of Ketuben – Exh.22 13. Another Yadi – Exh.23 14. Medical Case Papers of Ketaben – Exh.25 15. Medical Certificate of Smitaben – Exh.28 CR.A/1008/1998 8/33 JUDGMENT 16. Medical Case Papers of Smitaben – Exh.29 17. Panchnama of Scene of Offence – Exh.37 18. Post Mortem Report – Exh.39 19. Entry made on page 65 of Vardhy Book – Exh.43 20. Copy of vardhy – Exh.44 21. Copy of entry made in Station Diary – Exh.45 22. First Information Report – Exh.47 23. Copy of report for registration of Offence – Exh.48 9. At the end of trial, the incriminating circumstances appearing in evidence against the accused were put to him and his statement was recorded under section 313 of the Code of Criminal Procedure, 1973 (in short “the Code”). The accused denied the case of the prosecution but did not lead any evidence or examine any witness. However, the accused submitted a written reply in his defence stating that on account of downfall of his business he had become frustrated and become addicted to liquor, which had destroyed his health and family life. That his wife had tried to reform him but as he could not get rid of his addiction, she had broken down. On the day of the incident he had consumed a lot of liquor and his wife was nagging out of frustration and he was lying intoxicated on the verandah. Upon his wife and daughter catching fire and running to Sarojben’s house he had stood up with great CR.A/1008/1998 9/33 JUDGMENT difficulty and gone after them to Sarojben’s house and together with them he had doused the fire on his wife and daughter and then taken them to Shardaben Hospital for treatment. However, he had alighted near the gate of the hospital as at that time he was in a highly intoxicated condition and was afraid that the police at the hospital casualty would apprehend him. He has alleged that his wife and his daughter had not given any dying declaration against him voluntarily, and that he had not set them on fire, but in the afternoon his brothers-in-law and their wives had come to the hospital and turned them against him and would not let his family members meet them. 10. The learned Additional Sessions Judge after hearing the learned Advocates for the parties and appreciating and analyzing the evidence adduced by the prosecution, held that the deceased had died a homicidal death and that the accused was the author of the crime and passed the impugned judgement and order convicting and sentencing the accused as referred to hereinabove in paragraph (1) of this judgement. The order of conviction and sentence rendered by the learned trial Judge has been called in question by the appellant by way of the present appeal under Section 374 of the Code. 11. Assailing the impugned judgement and order, Mr. Nitin Amin learned Advocate for the appellant CR.A/1008/1998 10/33 JUDGMENT has submitted that the prosecution has failed to establish its case beyond reasonable doubt and considering the evidence produced on record by the prosecution, the appellant ought not to have been convicted for the offences punishable under section 302 and 307 of the Indian Penal Code. The main thrust of the arguments advanced by the learned Advocate for the appellant was that - There is no medical evidence or opinion on record to negate the theory that this is a case of suicide. - The only evidence in support of the prosecution case is in the nature of First Information Report, Dying Declaration and depostion of PW-1 Keta. - The evidence of Keta is contrary to her dying declaration in that she has introduced a totally new story that the accused had demanded Rs.500/- from the deceased asking her to bring the said sum from her father, therefore, her testimony is totally untrustworthy and no reliance can be placed upon the same. - On the basis of the testimony of PW-8 the brother of the deceased, it was contended that there was positive evidence that the brothers of the deceased and their wives who CR.A/1008/1998 11/33 JUDGMENT were present in the company and service of the deceased within a short while of their being admitted to the hospital, had ample opportunity of tutoring the deceased and PW- 1. That the oral dying declaration before PW- 8 is concocted and contrary to the first version put forward by the prosecution and being a weak piece of evidence, cannot be relied upon. - That there was positive evidence that the accused was a drunkard and the deceased was fed up of his drinking habits, hence, this could have been the reason for the deceased to have committed suicide. - That her relatives were present with the deceased prior to the recording of her dying declaration, hence the possibility of tutoring cannot be ruled out. - On the basis of the deposition of PW-3 Dr. Lakhani, it was submitted that the deceased and Keta were initially examined by the Casualty Medical Officer before being taken to the Burns Ward. That neither of them had given any history that the accused had poured kerosene on them and set them on fire as no such history has been recorded in the papers of the Casualty Medical Ward, which was prepared before the arrival of the family members of the deceased. Thus, the only possibility is that the so-called dying CR.A/1008/1998 12/33 JUDGMENT declarations given by the deceased and Keta are tutored and no reliance can be placed upon the same. 12. In conclusion it was submitted that upon an overall view of the evidence produced by the prosecution, the prosecution had miserably failed to bring home the charge against the accused. It was therefore, urged that the appeal by allowed by setting aside the conviction and sentence against the appellant and that the appellant be acquitted of the charges leveled against him. 13. As against that, Mr. R.C. Kodekar, learned Additional Public Prosecutor has submitted that there was ample evidence on record to connect the appellant with the commission of the crime in question. Referring to the evidence adduced by the prosecution it was submitted that the prosecution had successfully established the charge against the appellant through the evidence of the injured eyewitness PW-1 Keta read with the Medical history stated by the deceased before the Doctor who had treated her, the First Information Report lodged by the deceased as well as the dying declaration of the deceased recorded by the Executive Magistrate, all of which are duly proved through the testimonies of PW-3 the Medical Officer, PW-11 the Investigating Officer and PW-2 the Executive Magistrate. It was further submitted that the evidence of the said CR.A/1008/1998 13/33 JUDGMENT witnesses was further supported by the panchnama of the scene of offence, the report of the Forensic Science Laboratory, the Post Mortem Report etc. The learned Additional Public Prosecutor has emphasized that the view taken by the learned Judge of the trial Court is in accordance with law and the same should not be interfered with by this Court. It was, accordingly, urged that the appeal being devoid of merit, be dismissed and the impugned judgement and order be confirmed. 14. We have heard the learned Counsel for the parties and taken into consideration the evidence on record. In order to assure ourselves that the conviction based on the testimony of the child witness and dying declaration is proper, we have considered minutely and in detail, the evidence relating to the child witness and the dying declarations. 15. To prove the complicity of the accused in the commission of the offence in question, the prosecution has mainly relied upon the evidence of PW-1 Keta Bharatbhai Panchal, who is the daughter of the deceased and is an injured eye witness and the three written dying declarations: firstly before PW-3 Dr. Ashwin Shanabhai Lakhani in the form of medical case history, secondly before PW-11 the Investigating Officer in the form of the First Information Report and thirdly before PW-2 the CR.A/1008/1998 14/33 JUDGMENT Executive Magistrate in the form of a dying declaration; as well as the oral dying declaration before PW-8 brother of the deceased. 16. The testimony of PW-I who is an injured eyewitness is a significant piece of evidence. This witness is a child witness. Before recording her evidence the learned trial Judge has ascertained that she has the requisite maturity and intelligence to testify before the Court. She has deposed that she used to live with her parents at Bapunagar and presently was residing with her aunt and uncle (mother’s sister and her husband) and was studying in the fifth standard. She has deposed that her mother had expired on 7.8.97. She has further deposed that on the day of the incident there was a big quarrel between her parents. Her father had asked her mother to bring Rs.500/- from her father’s house, whereupon her mother had told him that she had given him a phone call and he would come at 4 o’clock. At two o’clock her father asked her mother that it was two o’clock why has the money not come yet. Whereupon her mother had told her father that her brother would come with the money at 4 o’clock. Therefore, at about 1:30 to 2:00 o’clock her father poured kerosene on her mother in her presence and also poured kerosene on her. He, then, lighted a bidi and threw the matchstick on her and her mother due to which both of them were on fire. At that time a plastic bucket CR.A/1008/1998 15/33 JUDGMENT filled with water was lying there, so she had herself doused the flames by taking the water from the bucket. She has further deposed that Sarojben Bhavsar who used to reside in the opposite house had come and as her mother was ablaze she had poured water over her and extinguished the fire. Thereafter people from her society had called a rickshaw and she and her mother had on their own gone to Shardaben Hospital in the rickshaw where they had been admitted in the burns ward. She has also deposed that she had sustained burns on her neck, both her hands, both her thighs and hips. Four days after the incident, that is, on the morning of the fifth day, her mother had expired. This witness has been extensively cross-examined. But despite being a child witness she has successfully withstood the searching cross-examination. The only contradiction in her testimony and the statement made before the Executive Magistrate is regarding the cause of the quarrel before the incident took place. However, her statement is consistent as regards the place, time of incident, presence of the accused and the manner in which he set them ablaze. The testimony of PW-1 has been attacked by the learned Advocate for the appellant on the ground that in the Vardhy registered by the police it has been noted that Keta had received burn injuries when she embraced her mother, alleging that the story of kerosene being poured on her has been developed later on. The CR.A/1008/1998 16/33 JUDGMENT said contention is misconceived in that the vardhy has been noted down by the concerned constable under instructions of the R.M.O., whereas there is ample direct evidence of the injured eyewitness as well the dying declarations which are referred to hereunder. Besides it is well settled that some minor embellishments here or there do not affect the credibility of the witness if otherwise found to be trustworthy and reliable. We consider the discrepancy pointed out by the learned Counsel for the appellant as too feeble a ground to doubt the evidence of this eyewitness. The core of her testimony remains reliable and no good reason can be traced out to reject it. 17. The evidence of PW 1 gets support from the testimony of PW 3 Dr. Ashwinbhai Shanabhai Lakhani, resident doctor, who was discharging duties in the plastic surgery department of the hospital and had given treatment to both, the deceased as well as PW-1 in the Burns Ward of the hospital. According to this witness on 3.8.97 at 2:40 in the afternoon, he had examined one Ketaben Bharatbhai, who was fully conscious at that time and as she had sustained burn injuries he had asked her the history in that regard. She had told him that her father had poured kerosene on her and her mother and had set them ablaze and he had made an endorsement in this regard in the case papers. He has acknowledged his signature on the Medical Certificate Exh.13 and admitted the CR.A/1008/1998 17/33 JUDGMENT contents thereof. This witness has been cross- examined at length but nothing contrary has been elicited to discredit his testimony. The history recorded by this witness as stated by PW 1 reads as follows: “H/O given by patient. Patient is fully conscious, well oriented. H/O Homicidal burns. Her father has poured kerosene over her and her mother and lighted at about 1:30 p.m.” The history narrated before the doctor is given almost immediately after being admitted to the hospital. Hence, there could not have been any opportunity for anyone to tutor her or in anyway influence her. Her statement before Executive Magistrate (Exh.22), which has been recorded as a dying declaration, further fortifies the evidence of this witness. However, as she has survived the said declaration cannot be considered to be a statement under section 32 of the Evidence Act but a statement under section 164 of the Code. On a conjoint reading of the testimony of PW-1 with the aforesaid medical case history and the statement before the Executive Magistrate there is no discrepancy in the main version of this witness that the accused had poured kerosene over her and the deceased and had set them afire. This witness being the daughter of the accused has no cause or reason to falsely implicate him. Hence, her testimony being CR.A/1008/1998 18/33 JUDGMENT reliable and trustworthy is required to be accepted. Therefore, the complicity of the accused in the commission of the offence in question stands duly established through the evidence of this eyewitness. 18. However, over and above the evidence of the eyewitness the prosecution has placed reliance upon the three dying declarations referred to hereinabove in support of its case. Before appreciating the evidence of the witnesses and the contents of the dying declarations, it would be relevant to notice the law relating to dying declaration. In the case of Paniben v. State of Gujarat, (1993 (2) GLR 985) the Supreme Court has formulated the principles laid down in several judgments of the Supreme Court governing dying declaration. A Division Bench of this Court in the case of State of Gujarat v. Maniben (2001 (2) GLR 1749) has very succinctly stated the law in this regard as under: “Section 32(1) of the Evidence Act, 1872 is an exception to the general rule that hearsay evidence is not admissible evidence or that unless evidence is tested by cross-examination, it is not credit-worthy. Under section 32(1) when a statement is made by a person as to the cause of death or as to any of the circumstances, which result in his death, in cases in which the cause of that person’s death comes into question, such a statement, oral or in writing made by the deceased to the witness is a relevant fact and is admissible in evidence. The statement made by the deceased called the dying declaration, falls in that CR.A/1008/1998 19/33 JUDGMENT category provided it has been made in a fit mental condition. It is well settled that conviction can be based on the dying declaration itself provided it is satisfactory and reliable. If there are more than one dying declarations, then the Court has to scrutinize all the dying