CR.A/1138/1999 1/28 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 1138 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 ? ========================================================= JADIBEN SHANKARLAL PARMAR & 1 - appellants(s) Versus STATE OF GUJARAT - Opponent(s) ========================================================= Appearance : MR PR ABICHANDANI for appellants(s) : 1 – 2. MR CR ABICHANDANI for appellants(s) : 1 - 2. MR KP RAWAL APP for Opponent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE A.L.DAVE and HONOURABLE MR.JUSTICE BANKIM.N.MEHTA Date : 20/02/2007 ORAL JUDGMENT : (Per : HONOURABLE MR.JUSTICE BANKIM.N.MEHTA) 1. The appellants have preferred this appeal CR.A/1138/1999 2/28 JUDGMENT under Section 374 (2) of the Code of Criminal Procedure, 1973 and challenged the judgment and order 26-7-1999 passed by the learned Addl. City Sessions Judge, Court No. 9, Ahmedabad City in Sessions Case No. 183 of 1998, convicting them for the offence punishable under Section 302 and 114 of the I.P. Code and sentencing them to undergo life imprisonment and to pay fine of Rs.1000/-, in default, to undergo rigorous imprisonment of 15 days and also convicting them for the offence punishable u/s 498-A of the I.P. Code and sentencing them to undergo rigorous imprisonment for one year and four months and to pay fine of Rs.500/-, in default, to undergo rigorous imprisonment for 15 days. Both the substantive sentences are ordered to run concurrently. 2. In brief, the prosecution case was that deceased Hiraben was married to Mukeshbhai Shankarlal Parmar before about three years of the incident. Appellant Jadiben Shankarlal was the mother and appellant Ashaben was the sister of Mukeshbhai and thereby the appellant were mother-in-law and sister-in-law respectively of deceased Hiraben. After the marriage, the appellants used to harass deceased Hiraben by passing taunting remarks and were keeping her away from her husband. Before three days of the CR.A/1138/1999 3/28 JUDGMENT incident, the appellants picked up quarrel with the deceased with regard to house-hold work. On 11-7-1997 at about 9-30 p.m. the appellants and deceased Hiraben were inside and her husband and father-in-law were outside the house. At that time, the appellants picked up quarrel with the deceased. The appellants poured kerosene from the kerosene container over deceased Hiraben and threw ignited matchstick on her by saying that “she should burn”. Thereafter, the appellants went outside the house. On account of burns the deceased raised shouts and hence people assembled there and extinguished the fire. Thereafter Hiraben was taken to Civil Hospital, Ahmedabad by one Mukeshbhai Dhulabhai Shah, Advocate and she was admitted to the hospital for treatment. 3. On the basis of the information given by Hiraben Mukeshbhai Parmar offence was registered as I CR No. 226 of 1997 before Shaher Kotada Police Stanton and investigation was started. During the treatment Hiraben succumbed to the injuries on 12-7-1997. Thereafter, her dead body was sent for postmortem. Panchanama of scene of offence, inquest panchanama and panchanama of recovery of the muddamal articles were drawn and the accused were arrested during the course of investigation. CR.A/1138/1999 4/28 JUDGMENT 4. On completion of the investigation, charge sheet was laid before the the Court of the learned Metropolitan Magistrate, Court No.3, Ahmedabad for the offence punishable under Sections 302, 114 and 498-A of the I.P. Code. As the offence was exclusively triable by the Court of Sessions, the case was committed to the City Sessions Court, Ahmedabad City and it was registered as Sessions Case No. 183 of 1998. Learned Additional City Sessions Judge, Court No.10, Ahmedabad City framed charge Exh. 2 against the accused for the offences punishable u/ss 498-A, 302 read with Section 114 of the I.P. Code. The charge was read over and explained to the appellants who pleaded not guilty to the charge and claimed to be tried. Therefore, the prosecution adduced evidence to prove the charge levelled against the accused. On completion of recording of evidence by prosecution, the learned trial Judge explained to the accused the incriminating circumstances appearing against them in the evidence. The accused explained the incriminating evidence in their further statement recorded under Section 313 of the Code of Criminal Procedure, 1973 by stating that on the date of the incident after taking dinner at about 8-30 p.m. they with younger daughter Pushpa and younger son Manoj of CR.A/1138/1999 5/28 JUDGMENT accused Jadiben went on the terrace for sleep as it was hot; that deceased Hiraben and her husband Mukeshbhai were in the room. After some time Mukeshbhai came to the terrace and Hiraben remained in the kitchen for house-hold work; that around 9-30 p.m. the neighbours came out of their gallery shouting that something is burning in their ( accused's) house, therefore, Mukeshbhai and Puspaben came down from the terrace and saw that their neighbours; Mukeshbhai, Vinodbhai, Bharatbhai and Manubhai were trying to break open the main door which was locked from inside; that as it was locked from inside, they removed the plank by help of crowbar ('kosh') and opened the stopper of the door and saw that Hiraben was burning; that Hiraben tried to commit suicide by locking from inside by pouring kerosene over herself and igniting the match stick; that it is not true that they had poured kerosene and ignited the matchstick. It is further explained that the neighbours extinguished the fire by throwing the quilt and they were not permitted to go inside the room as they were crying and the room was heavily crowded. It is also explained that they were staying in joint family and as the flat was too small the deceased at the instigation of her parents insisting to stay separately but the accused asked them not to CR.A/1138/1999 6/28 JUDGMENT stay separately for the time being and therefore they believe that the deceased committed suicide. It is further stated that the deceased was being kept very well by the family; that on the previous day of the incident the deceased had complained about pain in her stomach and Mukeshbhai, the husband of the deceased and one Sharadaben wife of advocate Mukeshbhai took deceased to Civil Hospital, Ahmedabad and she was treated there; that they are innocent and they have been falsely implicated in the offence. 5. The accused after recording of their further statement u/s 313 of the Criminal Procedure Code, gave application Exh. 51 to examine certain witnesses. The said application was granted by the learned trial Judge. The accused examined in all five witnesses in their defence. 6. On completion of recording the evidence of defence witnesses, the learned trial Judge heard oral submissions of the learned A.P.P. and the learned advocate for the accused. After hearing them the learned trial Judge concluded that the prosecution proved beyond reasonable doubt the charge levelled against the accused and found them guilty for the offences charged against CR.A/1138/1999 7/28 JUDGMENT them and sentenced them to undergo sentences as mentioned hereinabove. Being aggrieved by the impugned judgment the accused have preferred the present appeal. 7. We have heard learned advocate Mr. Abichandani for the appellants and learned A.P.P. Mr. Rawal for the respondent – State at length and in great detail. We have also perused judgment and the records and proceedings of the case. 8. Learned advocate Mr. Abichandani for the appellants submitted that the manner in which the offence alleged to have been committed, the prosecution failed to prove that death was homicidal in nature. Looking to the place of the incident and the fact that the door was locked from inside, the learned trial Judge committed error in holding that the deceased was done to death by the appellants. He also submitted that the evidence adduced by the prosecution does not prove beyond reasonable doubt that the appellants were involved in the commission of the offence, and that there is no evidence that there was harassment to the deceased from the appellants. Therefore, the learned trial Judge committed error in convicting the appellants. He also submitted that in all there are four statements CR.A/1138/1999 8/28 JUDGMENT which can be termed as the dying declarations and looking to the tenor of these statements, they cannot be said to be reliable statements, and therefore, the learned trial Judge could not have convicted the appellants for the offence of murder on the basis of these statements and that at the most the appellants could be convicted for the offence punishable under Section 306 of the I.P Code. Hence, the appeal deserves to be allowed and impugned judgment requires to be set aside. 9. While opposing the appeal learned A.P.P. submitted that the prosecution produced ample evidence to prove the guilt of the appellants beyond reasonable doubt. He submitted that the statements made by the deceased are consistent and they can be termed as Dying Declarations. He also submitted that the panchanama of scene of offence does not indicate that the door was locked from inside and it was broken open. Therefore, there is no question of theory of suicide as put forward by the appellants. He submitted that there was harassment to the deceased from the appellants and pursuant thereto the deceased was done to death by pouring kerosene over her. He also submitted that the medical evidence clearly establishes that death was homicidal in nature, and therefore, the CR.A/1138/1999 9/28 JUDGMENT trial Judge was justified in recording conviction of the appellants. Hence, no interference is warranted in the impugned judgment and the appeal is required to be dismissed. 10. To prove that death of deceased Hiraben was homicidal, the prosecution examined P.W. 12 Dr. Chandrakant B. Darji who performed postmortem of the dead body of Hiraben, at Exh. 33. According to the doctor cause of death of Hiraben was deep extensive burns over the body. The postmortem report Exh.34 indicates that burn injuries were sustained by the deceased and the cause of death was deep extensive burns over the body. In view of this evidence, it is clear that death of deceased Hiraben occurred on account of burns injuries sustained by her. It is true that the doctor in his cross-examination deposed that the injuries found on the body were possible if a person pours kerosene on oneself and ignites matchstick. In this case, the defence of the appellants is that deceased committed suicide by pouring kerosene over herself and igniting matchstick. In support of his defence that death of Hiraben was suicidal, learned advocate for the appellants mainly relied on panchanama of scene of offence Exh.36, the evidence of D.W. 3 Mukeshbhai D. Shah, a practicing advocate at Exh. 56 and map Exh. 14. CR.A/1138/1999 10/28 JUDGMENT 11. Panchanama of scene of offence Exh. 36 indicates that the place of the incident was shown by D.W. 3 Mukeshbhai D. Shah advocate. The prosecution also produced map of the place of the incident at Exh. 14. On conjoint reading of both these documents, it appears that the incident occurred almost in the middle of the room where the burnt pieces of cloth were found. Panchanama of scene of offence Exh. 36 indicates that the door was open and traces of kerosene were found in the gallery as well as in the main room. It also indicates that the burnt pieces of cloth were also found in the gallery also. However, it does not indicate that the door was broken or a wooden plank was removed from the door. It is submitted that though the door was broken it was not recorded in the panchanama. In our view, the scene of offence was shown by an advocate. If the door was broken open or even a plank was removed to open the stopper, it would have been a noticeable feature and would not have gone unnoticed. Therefore, it is difficult to believe that the door was locked from inside but it was not recorded in the panchanama. It is pertinent that on perusal of the panchanama it appears that expert Mr. Sharma from F.S.L. was present at the time of drawing panchanama and after observing the scene of offence he had CR.A/1138/1999 11/28 JUDGMENT instructed to take certain things for examination. In view of this, it would be difficult to believe that the broken door would escape from his notice. Therefore, in our view, it is difficult to accept that the door was locked from inside and the stopper was opened by removing a plank of the door. 12. Learned advocate for the appellants submitted that the photographs of the place of offence were taken, which indicate about the broken door, however, since the photographs were not supporting the prosecution case, the same have been withheld by the prosecution and despite issuance of the summons to produce the said photographs for the defence, the same have not been produced and that has caused prejudice to the defence of the appellants, and so the appellants are entitled to the benefit of doubt. It is true that the appellants made application before the trial court to examine the photographer who allegedly took photographs of the place of the incident and the court had issued summons to the witness. However, it appears that the witness did not appear and so he was not examined. The record indicates that the accused gave purshish Exh. 6 stating that they do not want to examine other witnesses. If the witness did not appear in the court the CR.A/1138/1999 12/28 JUDGMENT accused could have resorted to the legal remedy available to secure his presence. However, the accused did not pursue the remedy and filed the purshish In view of this, it cannot be said that non-examination of the witness caused prejudice to the defence. Therefore, this submission cannot be accepted. 13. D.W. 3 Mukeshbhai Dhulabhai Shah Exh. 56 deposed that he and others knocked the door but as it was not opened, it was torn apart with iron bar. He also deposed that he did not ask Hiraben as to how she sustained burns and that he did not ask the appellants or Mukeshbhai as to how Hiraben sustained burns. The conduct of this witness is not natural as normally a person would immediately make inquiry about the injury more so when he is an advocate. Even the witness has denied that he showed the place of incident at the time of drawing panchanama which is contrary to the contents of pnachanama Exh. 36. The evidence indicates that deceased Hiraben had filed proceedings in the Metropolitan Magistrate Court at Ahmedabad against her husband wherein the witness appeared as an advocate to defend the husband. In our view, the evidence of this witness is not reliable as he is not telling truth with a view to save the appellants who are related to his CR.A/1138/1999 13/28 JUDGMENT client. Even map Exh. 14 and panchanama of scene of offence Exh. 36 do not indicate that a plank of the door was broken open. Therefore, in our view, the defence that the door was locked from inside and it was torn apart and the stopper was opened, cannot be believed. 14. In view of above, now the evidence with regard to nature of death is required to be examined. Inquest panchanama Exh. 49 indicates that burns injuries were all over the body. Considering the evidence of P.W. 12 Dr. Chandrakant Babalal Darji Exh. 33, Postmortem Note Exh. 34, panchanama of scene of offence Exh.36 and inquest panchanama Exh.49, it is difficult to believe that the deceased committed suicide. On conjoint reading of all these evidence it becomes clear that death of Hiraben was homicidal. Therefore, in our opinion, the prosecution proved beyond reasonable doubt that death of Hiraben was homicidal in nature. 15. The prosecution case mainly rests on four statements made by the deceased with regard to the circumstances of the transactions which resulted in her death which can be termed as dying declarations. Out of those four dying declarations, two dying declarations are in the form of history of injuries given to the doctor. CR.A/1138/1999 14/28 JUDGMENT The other two; (i) in the form of first information report and (ii) the statement made by deceased before her father. 16. In order to prove the dying declaration in the form of history of the injuries, the prosecution examined P.W. 10 Dr. Himmatbhai Exh.27. The witness was working as Medical Officer on Emergency Duty in the hospital and Hiraben was brought before him before him in the hospital for treatment immediately after the incident. Deceased Hiraben was treated by this witness and he recorded the history given by deceased Hiraben. It indicates that Hiraben was brought to the hospital by Mukeshbhai D. Shah at about 10-50 p.m. and the witness had examined her and recorded the history given by her at Exh. 29. The evidence also indicates that the patient was conscious and had 1st, 2nd and 3rd degree burns over her body and was sent to the Burns Ward for treatment. According to the witness the deceased gave him the history of injuries that there was quarrel since three days and that the appellants burnt her by pouring kerosene at 9-30 p.m. The history was recorded by him in case paper Exh.29. The case paper indicates that the patient was conscious and she had given the history. It also indicates that there was quarrel since three days and the appellants poured CR.A/1138/1999 15/28 JUDGMENT kerosene and burnt her. The case paper indicates that smell of kerosene was also present. The case paper indicates that deceased gave complete account of her injuries to the doctor and the patient had 1st, 2nd and 3rd degree burns over her body including the sole, palm (except scalp) and some parts of her forehead were also burnt. In view of this, it becomes clear that immediately after the incident Hiraben was taken to the hospital for treatment by Mukeshbhai D. Shah, advocate and the deceased gave history of her injuries to the doctor, implicating the appellants, who recorded the same in the case- paper. The defence has not able to demonstrate that the deceased was not conscious or in fit state of mind to give history or that the history was not given by her. In our view, there is nothing to indicate that the deceased was not conscious or that she did not give the history of her injuries to the Doctor. 17. The evidence indicates that after preliminary treatment in the emergency ward Hiraben was shifted to Burns/Plastic unit where she was examined by P.W. 11 Dr. Parthiv Agrawal and he also recorded the history of injuries. The prosecution examined him at Exh. 30. The witness and Dr. Archana Kajrekar had examined the deceased and the history of the injuries CR.A/1138/1999 16/28 JUDGMENT given by deceased was recorded in the case paper Exh. 31. According to the witness, deceased Hiraben was examined at 11-30 p.m. She was conscious and oriented. The witness deposed that the patient informed that the appellants burnt her by pouring kerosene at 9-30 p.m. and the same was recorded in case paper Exh.31. The witness also deposed that the patient died at 1-10 a.m. The witness denied that the history was recorded from OPD case paper Exh. 29 and also denied that the patient was in state of shock and was unable to speak. The prosecution also produced the case papers regarding treatment at Exh. 32. The case paper Exh.31 indicates that the history was recorded at 10-30 p.m. It also records that the deceased's general condition was poor but was conscious and oriented. Case paper Exh. 32 indicates the nature of injuries and treatment given to her. In our view, when the patient was conscious and oriented there is no reason to believe that she did not give history of her injuries, which was consistent with the history given by her at time of her admission in the hospital. The defence has not been able to demonstrate that the deceased could not have given the history. In view of this consistent evidence, we are of the view that the deceased immediately after her admission in O.P.D. in the hospital gave history of her injuries to the CR.A/1138/1999 17/28 JUDGMENT doctor implicating the appellants in the offence and thereafter, she was admitted in the Burns/Plastic Unit for further treatment where she again gave the same history. It is significant that the deceased was taken to the hospital by Mukeshbhai D. Shah, a practicing advocate. The said witness has been examined by the appellants as defence witness. It is true that the witness deposed that Hiraben was unconscious and that she did not regain consciousness till her death. However, looking to the medical evidence we are of the view that the deceased was conscious and oriented when she gave history of her injuries to the Doctors and that D.W. 3 Mukeshbhai D. Shah Exh. 56 deposed about the consciousness of Hiraben only with a view to shield the appellants (real culprits). The case history given by the deceased was immediately recorded by the doctor who is an independent witness who would have no interest in either side. Version of doctor is supported by record maintained in ordinary course of business. In view of this, it is difficult to believe that the deceased did not give history of her injuries, and therefore these two statements can be considered as dying declarations and they are trustworthy and reliable to connect the appellants with the offence. CR.A/1138/1999 18/28 JUDGMENT 18. The prosecution produced F.I.R. given by deceased Hiraben at Exh. 11. It is recorded in the Civil Hospital, Ahmedabad, wherein she has given details about the incident. It is alleged in the F.I.R. that the appellants were passing tauting remarks and before about three days of incident the appellants picked up quarrel with her with regard to house hold work. It is further alleged that on the day of incident the appellants were in the house and they picked up quarrel with her, thereafter appellant Jadiben poured kerosene over her and appellant Ashaben threw ignited matchstick on her and Mukeshbhai D. Shah took her to the hospital for treatment. The details given in the F.I.R. are consistent with the history of injuries given by her to the Doctors. Therefore, we are of the view that the deceased gave information regarding the circumstances of the transaction which resulted into her death. 19. The prosecution examined P.W. 2 Kantilal Panaji Makwana, P.S.I. who recorded F.I.R., at Exh. 10. According to the witness he received 'Yadi' from Police Station Officer (P.S.O.) at 22-45 hours to go to Civil Hospital, Ahmedabad, and therefore, he went to Civil Hospital, Ahmedabad and recorded F.I.R. Exh.11. According CR.A/1138/1999 19/28 JUDGMENT to the witness when he went to the hospital, Hiraben was able to speak. The witness also deposed that when he went to the patient relatives were not present and he wrote a 'Yadi' to the Executive Magistrate to record Dying Declaration but it could not be recorded as Hiraben died before the Executive Magistrate could reach at the hospital. The witness has denied that when he went to the hospital the informant was unconscious and was not in a position to speak. The defence has not been able to demonstrate that the witness did not record the First information Report Exh. 11 as given by the informant. 20. The prosecution produced the extract of police station diary at Exh. 16 and examined P.W. 4 Shanabhai Gemabhai at Exh. 15. The evidence of this witness indicates that on the basis of the information given by Hiraben offence was registered against the appellants