CR.A/121/2000 1/13 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 121 of 2000 For Approval and Signature: HONOURABLE MR.JUSTICE R.P.DHOLAKIA HONOURABLE MR.JUSTICE KS JHAVERI ========================================================= 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 ? ========================================================= ALEKKABEN W/O NATHUBHAI LAXMANBHAI - Appellant(s) Versus STATE OF GUJARAT - Opponent(s) ========================================================= Appearance : MR MJ BUDDHBHATTI for Appellant(s) : 1, MR HL JANI, APP for Opponent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE R.P.DHOLAKIA and HONOURABLE MR.JUSTICE KS JHAVERI Date : 23/01/2008 ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE R.P.DHOLAKIA) 1.Present appeal has been preferred by the CR.A/121/2000 2/13 JUDGMENT appellant-original accused, who has been convicted and sentenced to suffer imprisonment for life and to pay fine of Rs.2000/-, in default, to suffer SI for one year for the offence under Sec.302 of IPC by the learned Addl. City Sessions Judge, Court No.21, Ahmedabad, vide judgment and order dated 20th January, 2000 passed in Sessions Case No.156 of 1998. 2.The short facts of the prosecution case are that on 2-2-1998, when PSO, Amraiwadi Police Station was on duty, he received a telephonic vardhy from Head Constable Chandrasinh, buckle No.3236 from L.G.Hospital informing him that a lady has been brought by her mother in the hospital with burn injuries in pursuance of an incident alleged to have taken place at 1930 hours at her residence wherein paramour of her husband poured kerosene on her and ignited her consequent upon which, she received severe injuries. On noting down the said information by PSO in the Station diary, he handed over yadi for investigation to PSI, Lakhabhai Parbatbhai, who went to L.G.Hospital in the burns ward and found that physical condition of the injured was very serious as she sustained about 100% burn injuries and, therefore, he first wrote yadi to Executive Magistrate for recording her dying declaration. Thereafter, CR.A/121/2000 3/13 JUDGMENT he recorded the complaint of injured Pochiben at about 2120 hours for the offence punishable under Sec.307 of IPC and sent the same to Amraiwadi Police Station for registering the offence which has been numbered as Amraiwadi Police Station C.R.No.I-87 of 1998. Meanwhile, Executive Magistrate visited the hospital and recorded the dying declaration of Pochiben at about 2330 hours. PSI also visited the place of offence, drew panchnama of scene of offence, seized muddamal and on the next day he came to know that injured succumbed to the injuries. He therefore went to L.G.Hospital where he filled up Marnottar Form, drew inquest panchnama and made arrangements to send the dead body of the deceased for performing post mortem. He also added Sec.302 of IPC and informed the concerned Magistrate regarding the same. He then tried to search the accused. Meanwhile, as the accused was traced on 3-2-1998, she was arrested and after preparing arrest panchnama, she has been sent to judicial custody. He also sent muddamal to FSL and on receiving FSL and post mortem reports, treatment papers etc., same were kept with the investigation file. At the end of investigation, charge sheet was submitted in the Court of learned Metropolitan Magistrate, Court No.7, CR.A/121/2000 4/13 JUDGMENT Ahmedabad. 3.As the offence alleged against the accused was exclusively triable by Court of Sessions, learned Metropolitan Magistrate committed the case to the City Sessions Court at Ahmedabad where the case has been numbered as Criminal Case No.156 of 1998 and handed over to Addl. City Sessions Judge, Ahmedabad, for disposing of the same on merits. 4.On presentation of the accused, learned Addl. Sessions Judge framed charge against the accused at Exh.1. As the accused pleaded not guilty to the charge and prayed for trial, to prove the guilt against the accused, prosecution examined following 11 witnesses: 1)P.W.1, Duraiswami Kalidas Nayar, Ex.12, panch of inquest report. 2)P.W.2, Aaru R.Mugam Katurayan, Ex.14, panch of panchnama of place of offence. 3)P.W.3, Raju Elappa Dagade, Ex.13, brother of the deceased. 4)P.W.4, Hansadiben Madhubhai Bokade, Ex.16, sister of the deceased. 5)P.W.5, Dr.Bharat Chetram Sharma, Ex.18, Medical Officer. 6)P.W.6, Swadhanji Vajaji Darbar, Ex.24, Executive Magistrate. 7)P.W.7, Andarsin Shivabhai Baria, Ex.27, CR.A/121/2000 5/13 JUDGMENT Police Constable on duty at L.G.Hospital. 8)P.W.8, Jodhabhai Bapubhai Baria, Ex.29, PSO, Amraiwadi Police Station. 9)P.W.9, Lakhabhai Parbatbhai, Ex.32, PSI, Amraiwadi Police Station. 10)P.W.10, Bhartsinh Dhirubha Zala, Ex.35, Sr.P.I., Amraiwadi Police Station. 11)P.W.11, Dr.Chandrakant Balabhai Darji, Ex.41. The prosecution also placed reliance on many documentary evidence such as yadi written to Executive Magistrate Ex.25; dying declaration dated 2-2-98 Ex.26; abstract of vardhy from L.G.Hospital Ex.31; complaint lodged by deceased Pochiben Ex.33; report for lodging an offence Ex.34; panchnama of scene of offence Ex.36; inquest panchnama Ex.13 panchnama regarding recovery of clothes of the deceased Alakkaben Ex.37; copy of arrest memo Ex.38; post mortem report Ex.8; office copy of Ravangi Nondh Ex.9; receipt of FSL Ex.10; FSL report Ex.11 and case paper of the deceased Ex.19. 5.On submission of closing pursis by the prosecution, learned Addl. Sessions Judge recorded further statement of the accused under Sec.313 of Code of Criminal Procedure. Upon affording opportunity of hearing to the learned advocates appearing for the CR.A/121/2000 6/13 JUDGMENT respective parties, learned Addl. Sessions Judge delivered the impugned judgment convicting the appellant as aforesaid in the earlier part of this judgment which gave rise to prefer the present appeal. 6.It is required to be noted that this appeal has been expedited by the Apex Court and, therefore, when it has been placed before this Court, we have requested the learned counsel for the appellant to proceed with the final hearing of the appeal. Leaned counsel for the appellant, Mr.M.J.Buddhabhatti has given full co-operation to dispose of the same as desired by the Hon'ble Apex Court. 7.Heard learned counsel for the appellant, Mr.M.J.Buddhabhatti and learned APP, Mr.H.L.Jani for the respondent-State. 8.It has been mainly argued by the learned counsel for the appellant that the appellant has been falsely involved in the crime in question on the basis of false belief of the relatives of the deceased that she had an illicit relation with the husband of the deceased. 9.Drawing our attention towards the telephonic vardhy Ex.31, the station diary entry Ex.30, yadi for recording dying declaration Ex.25 and dying declaration Ex.26, it is argued that in all the above referred documents, CR.A/121/2000 7/13 JUDGMENT name of the assailant has been mentioned as 'elaka' whereas the real name of the appellant is Alekaben and it is for the first time name of Alekaben has been disclosed by the PSI, Shri Lakhabhai in the FIR Ex.33 and, therefore, according to him, she has been falsely involved in the crime in question. 10.Showing us the yadi for recording dying declaration and dying declaration as well as other medical papers, it is argued that deceased had 100% burn injuries but later on it has been corrected by the doctor as 97%. 11.It is further argued that at the time of recording the dying declaration, Executive Magistrate has not sought opinion of doctor about her physical and mental condition in recording the dying declaration and endorsement has been made at about 9.20 p.m. that too upon the yadi of Executive Magistrate. It is further argued that yadi is not in proper form and is unsatisfactory. The language used in the yadi is Gujarati but the deceased was knowing only Marati language. The Executive Magistrate has clearly admitted that he does not know Marati language. This would mean that dying declaration is not as per the say of the deceased and hence is not trustworthy. It also does not bear the endorsement of doctor either. In the absence of a trustworthy dying declaration, the CR.A/121/2000 8/13 JUDGMENT accused should be given benefit since there are no other evidence connecting the accused with the crime in question. In this regard, he has taken us through evidence of various witnesses and argued that all the alleged eye witnesses have rightly not supported the say of the prosecution and they are got up witnesses. 12.It is lastly argued that even if the case put up by the prosecution is believed to be true, it would mean that presence of the appellant was there at the time of incident, but as as per the evidence on record, she went there empty-handed. Further, if it is believed that altercation has taken place between two and thereafter the appellant took kerosene 'carbo' lying in the house and sprinkled on the deceased and set her on fire causing her burn injuries, in that case also, it cannot be said that the intention of the appellant was to kill the deceased since the incident had happened on a spur of the moment. It is also argued that the appellant has already undergone 10 years of imprisonment and, therefore, it is prayed that ends of justice would be met if she is released forthwith treating the imprisonment of 10 years already undergone by the appellant as the sufficient punishment. 13.Learned APP, Mr.H.L.Jani has vehemently CR.A/121/2000 9/13 JUDGMENT objected relying on the oral as well as the documentary evidence relied on by the learned counsel for the learned counsel for the appellant. 14.We have also gone through the oral as well as the documentary evidence shown to us by the learned counsel for the respective parties together with reasoned judgment delivered by the court below. 9.It is required to be noted that the aspect of death of the deceased as homicidal has not been disputed. Still however, we have gone through the evidence of Dr.Chandrakant Babalal Darji, P.W.11, Ex.41 which shows that the deceased sustained 95% burn injuries and those injuries were sufficient to cause death of the deceased. He has also proved the post mortem note Ex.8. Therefore, we have no hesitation in holding that the death of the deceased was homicide. 10.It is also required to be noted that most of the witnesses have not supported the say of the prosecution except the persons who came there at the time of incident or later on as the persons discharging their official duty. Through them, prosecution is able to prove the telephonic vardhy, station diary entry, yadi for dying declaration, dying declaration, FIR, inquest panchama etc. 11.It reflects from the evidence on record that CR.A/121/2000 10/13 JUDGMENT till 9.20 p.m. when the FIR has been recorded by PSI, Lakhabhai Parbatbhai, name of the assailant has been disclosed. Prior to that, though there are independent evidence on record, name of the appellant has not been disclosed but name of one 'Eliben' has been shown as an assailant. 12.Learned APP has drawn our attention that Eliben herself is Alekaben and her short name is 'Eli'. 13.We are unable to accept the same because there are no further evidence to that effect to clarify this aspect. However, there are evidence on record to show that altercation has taken place between the deceased and one Eliben and during that process, due to sudden provocation, kerosene has been sprinkled and she was ignited. We are also not happy with the way in which dying declaration has been recorded. Moreover, dying declaration does not appear to be in proper form more particularly when the deceased was knowing only Marati language and Executive Magistrate was not knowing said language. We are however not worried about the endorsement of the doctor on the dying declaration because law on that point is very clear. What is required to be seen is as to whether the dying declaration is trustworthy or not. In our opinion, the dying CR.A/121/2000 11/13 JUDGMENT declaration is not trustworthy as no sufficient care and caution have been taken while recording the dying declaration. Even presence of the appellant is creating doubt in the mind of the Court. However, we are not entering into those aspects because learned counsel for the appellant has already restricted his arguments qua sudden provocation and intention by contending that the appellant has already undergone imprisonment of ten years and, therefore, if appeal will be allowed on that ground alone, then also, it will meet the end of justice. 14.We are also sharing the same view because the appellant is a lady having undergone about 10 years of imprisonment and as we have discussed above, dying declaration and other evidence create lot of doubts in the mind of the Court. Even witnesses have also not supported the say of the prosecution. It is clear from the evidence of the prosecution witnesses that when the appellant went to the scene of offence, she was empty handed and from there altercation has been taken place and during altercation, whatever was available there i.e. kerosene 'carbo' in the house of the deceased, same was taken and sprinkled kerosene on her and set her on fire. Therefore, it cannot be said that there was any intention on her part and with that CR.A/121/2000 12/13 JUDGMENT intention, she went there. It can therefore be inferred that it is because of altercation that took place between the two, the incident in question has taken place and, therefore, we believe that the incident has taken place in a spur of moment. 15.In view of the above, keeping in mind the fact that there was no intention on the part of the appellant in committing the offence in question and the incident has taken place in a spur of moment coupled with the fact that the appellant has undergone about 10 years of imprisonment, we feel that the sentence imposed upon the appellant by the court below is required to be reduced and the ends of justice would be met if the sentence already undergone by the appellant in jail is treated as the sufficient punishment. 16.Thus, this appeal is partly allowed. Judgment and order of conviction and sentence dated 20-1-2000 delivered by the learned Additional City Sessions Judge, Court No.21, Ahmedabad in Sessions Case No.156 of 1998 is modified and the sentence already undergone by the appellant-accused-Alakkaben, W/o Nathubhai Laxmanbhai Kekadi is ordered to be treated as the sufficient sentence. The appellant is therefore ordered to be set at liberty forthwith, if not required in any other offence. CR.A/121/2000 13/13 JUDGMENT (R.P.DHOLAKIA,J) (K.S.JHAVERI,J) radhan/