CR.A/48619/1999 1/7 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 486 of 1999 For Approval and Signature: HONOURABLE MR.JUSTICE BHAGWATI PRASAD 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 ? ========================================= = INDUBHA CHHATRASINH Versus STATE OF GUJARAT ========================================= = Appearance : MS RV ACHARYA for Appellant MS MS PANCHAL, ADDL. PUBLIC PROSECUTOR for Opponent ========================================= = CORAM : HONOURABLE MR.JUSTICE BHAGWATI PRASAD and HONOURABLE MR.JUSTICE BANKIM.N.MEHTA Date : 21/11/2008 CR.A/48619/1999 2/7 JUDGMENT ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE BANKIM.N.MEHTA) 1. The appellant – convict has preferred this appeal under section 374(2) of the Code of Criminal Procedure, 1973 and challenged the judgment and order of conviction and sentence passed by the learned Additional Sessions Judge, Banaskantha at Palanpur on 11.5.1999 in Sessions Case No.53 of 1998 convicting him for the offence punishable under section 302 of the Indian Penal Code and sentencing him to undergo life imprisonment and to pay fine of Rs.5000/- in default thereof to undergo rigorous imprisonment for one year. 2. According to the prosecution case, the accused was married to deceased Vasantba before about six years of the incident. The accused was in habit of consuming liquor which the deceased did not like, therefore, there used to be quarrel between the accused and the deceased. On 15.11.2007 at about 8:00 p.m., the accused poured kerosene over deceased Vasant and ignited match stick and set her on fire. Kankuba who extinguished the fire also sustained burn injuries. Thereafter, Vasantba was taken to Government hospital for treatment, where she succumbed to her injuries. 3. On the basis of the first information report lodged by Ishubha – the brother of the deceased, offence was registered and investigation was started. At the end of investigation, charge sheet came to be filed against the accused for the offence punishable under sections 302 and 307 of the Indian Penal Code. As the offence was triable by Sessions Court, the case was committed to the City Sessions Court and it was CR.A/48619/1999 3/7 JUDGMENT registered as Sessions Case No.53 of 1998. The learned Additional Sessions Judge framed charge Exh-2 for the aforesaid offence against the accused. The accused denied having committed the offence and claimed to be tried. Therefore, the prosecution adduced evidence. On completion of recording of evidence, the incriminating circumstances appearing in the evidence against the accused were explained to him. The accused in his further statement recorded under section 313 of the Code of Criminal Procedure, 1973, stated that he is innocent. After hearing the learned Additional Public Prosecutor and learned advocate for the accused, the Court convicted the accused for the offence punishable under section 302 of the Indian Penal Code and sentenced him as mentioned herienebefore, but acquitted him for the offence punishable under section 307 of the Indian Penal Code. Being aggrieved by the said decision, the accused has preferred this appeal. 4. We have heard learned advocate Ms. Sadhana Sagar for Ms. R.V. Acharya for the appellant and learned APP Ms. Mita Panchal at length and in great detail. We have also perused the impugned judgment and record and proceedings of the trial Court. 5. It appears from the prosecution case that there was quarrel between the accused and the deceased, as the accused was in habit of consuming liquor. The deceased died on account of burn injuries sustained by her. Before she succumbed to her injuries, her dying declaration came to be recorded. 6. The prosecution has produced the dying declaration at CR.A/48619/1999 4/7 JUDGMENT Exh-34 and has examined Executive Magistrate PW 7 Somaji Viraji Thakor at Exh-31. According to the witness, he went to the hospital and inquired from injured Vasantba as to how she sustained injuries. The injured gave a statement with regard to cause of her injuries, which was recorded by him. According to the witness, when he went to record the dying declaration, the injured was able to speak. It is true that the dying declaration is not in the question – answer form nor there is endorsement of the doctor about state of mind of declarant. However, it appears from the dying declaration that the deceased gave detailed account of her burn injuries. It also indicates that the accused was responsible for her burn injuries. The dying declaration bears right thumb impression of the deceased. The evidence of the witness indicates that when he went to record the dying declaration, Vasantba was able to speak. Recording of dying declaration was completed at 21:10 hrs on 15.11.1997. There is nothing to indicate that the injured was not in a fit state of mind to give account of her burn injuries. It is also not in dispute that it is always not necessary to obtain certificate of doctor with regard to state of mind of the declarant. Considering the facts and circumstances of the present case, there is nothing to indicate that the injured was not in a fit state of her mind to give dying declaration, therefore, the learned Judge was justified in relying upon the dying declaration. 7. The prosecution also examined PW 1 Poonambhai Kanabhai Makwana at Exh-6. The witness was a Medical Officer at Primary Health Centre, Shihori, where the deceased was treated. According to him, when the deceased was brought before him, she was conscious and was able to speak. CR.A/48619/1999 5/7 JUDGMENT The witness issued certificate Exh-13. The witness also admitted that the deceased was examined by him at 11:55 hrs. the injury certificate Exh-8 indicates that the deceased was brought to the hospital at 8:45 p.m. with a history of burns by kerosene by her husband. The certificate records the history of burn injuries to the deceased. This clearly indicates that the deceases sustained burn injuries caused by the accused. On conjoint reading of evidence of PW 1, PW 7 and injury certificate Exh-8 and dying declaration at Exh-34, it emerges that immediately after the incident, Vasantba was taken to the hospital, where she gave history of burn injuries caused by the accused and also her dying declaration came to be recorded. Therefore, it becomes clear that the accused was responsible for the burn injuries. 8. The first information report Exh-45 indicates that Kankuba extinguished the fire. 9. The evidence of PW 3 Ishubha Dhudji Exh-18 indicates that he was the brother of deceased Vasantba and there were disputes between the accused and the deceased. It also indicates that after the incident, he went at the place of incident and extinguished the fire. It also indicates that the deceased made a dying declaration before him declaring that the accused poured kerosene and set her on fire. The witness has been extensively cross-examined. However, the defence has not been able to elicit that is deposition is not trustworthy. The first information report Exh-45 also indicates that the witness went to the place of incident on hearing shouts of Vasantba and extinguished the fire. It also indicates that the deceased gave dying declaration implicating the accused. CR.A/48619/1999 6/7 JUDGMENT Therefore, on conjoint reading of the first information report and the evidence of this witness, we are of the view that there is no discrepancy in the prosecution case with regard to involvement of the accused in the offence. The evidence of PW 5 Vinubha Dhudji Exh-22 also indicates that he extinguished the fire set on Vasantba and the deceased made a declaration before him that the accused poured kerosene and ignited the match stick. There is nothing to indicate that the witness did not extinguish the fire and the deceased did not make any declaration before him. 10. In view of above, it appears that deceased Vasantba made dying declarations before PW 1 Poonambhai as well as PW 3 Ishubha and PW 5 Vinubha Dhudji implicating the accused in the offence; the dying declaration in the form of medical papers and the dying declaration recorded by the Executive Magistrate also indicate that the accused was responsible for the burn injuries to the deceased. Therefore, all the dying declaration are consistent and convincing. Therefore, in our view, the learned trial Judge was justified in relying upon the evidence to convict the accused. Hence, no interference is warranted in the impugned judgment. 11. In the result, the appeal fails and stands dismissed. The judgment and order of conviction and sentence passed by the the learned Addl. Sessions Judge, Banaskantha at Palanpur on 11.5.1999 in Sessions Case No.53 of 1998 convicting the appellant for the offence punishable under section 302 of the Indian Penal Code, is confirmed. (BHAGWATI PRASAD, J.) CR.A/48619/1999 7/7 JUDGMENT (BANKIM.N.MEHTA, J.) shekhar/-