IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No 1197 of 1997 For Approval and Signature: HON'BLE MR.JUSTICE J.M.PANCHAL and HON'BLE MR.JUSTICE J.R.VORA ============================================================ 1. Whether Reporters of Local Papers may be allowed : YES to see the judgements? 2. To be referred to the Reporter or not? : YES 3. Whether Their Lordships wish to see the fair copy : NO of the judgement? 4. Whether this case involves a substantial question : NO of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the concerned : NO Magistrate/Magistrates,Judge/Judges,Tribunal/Tribunals? -------------------------------------------------------------- JAYANTIBHAI JAVABHAI Versus STATE OF GUJARAT -------------------------------------------------------------- Appearance: 1. Criminal Appeal No. 1197 of 1997 MS BANNA S DUTTA for Appellant MR SUDHANSU S PATEL, A.P.P., for Respondent -------------------------------------------------------------- CORAM : HON'BLE MR.JUSTICE J.M.PANCHAL and HON'BLE MR.JUSTICE J.R.VORA Date of decision: 25/08/2004 ORAL JUDGEMENT (Per : HON'BLE MR.JUSTICE J.M.PANCHAL) Instant appeal filed under Section 374(2) of the Code of Criminal Procedure, 1973 is directed against judgment dated August 27, 1996, rendered by the learned Additional Sessions Judge, Ahmedabad city, in Sessions Case No.96 of 1995, by which the appellant is convicted of the offences punishable under Sections 302, 307 as well as Section 304 of the Indian Penal Code and sentenced to suffer R.I. for life and fine of Rs.2000/-, in default, R.I. for six months for commission of offence punishable under Section 302 I.P.C. and R.I. for five years for commission of offence punishable under Section 307 I.P.C. as well as R.I. for seven years for commission of offence punishable under Section 304 I.P.C. It may be stated that the learned Additional Sessions Judge has directed that substantive sentences imposed on the appellant shall run concurrently. 2. Shantaben Hirabhai, who is complainant in the case, is resident of village Shihi, Taluka : Sidhpur, District:Mehsana. Name of her husband was Hirabhai Govabhai. The record shows that Hirabhai Govabhai expired before the incident. During the subsistence of her marriage with deceased Hirabhai, Shantaben had given birth to four children, out of whom two were sons and two were daughters. Name of the eldest daughter was Dinaben, who was married to the appellant 20 years before the date of the incident which is December 8, 1994. During the subsistence of her marriage with the appellant, Dinaben had given birth to five children, out of whom two were sons and three were daughters. Name of one of her sons is Vinod, whereas name of the other is Naresh. Dinaben was staying with the appellant at Jay-Chamunda Chawl, Ramapir Tekra, Nava Vadaj, Naranpura, Ahmedabad. The appellant, at the time of the incident, was doing business of selling fruits at Manek Chowk. It may be stated that second daughter of Shantaben i.e. Dahiben was given in marriage to Somabhai Khemabhai of village Hansapur, Taluka : Patan, District : Mehsana. Ten days prior to the date of incident, Dahiben and her husband Somabhai had come to the house of Shantaben situated in village Shihi because Somabhai was ill. During the stay of Dahiben with her husband at the house of her mother, it was learnt that Ramjibhai, brother of Shantaben Hirabhai, residing at Ahmedabad, was also ill. Therefore, on the day prior to the date of incident, Shantaben, in the company of her daughter Dahiben and her son-in-law Somabhai, had come to Ahmedabad to inquire about the health of her brother Ramjibhai. During the night time all the three had stayed at the house of Ramjibhai. At about 4.00 P.M. on the day of incident, Shantaben, in the company of her daughter Dahiben and son-in-law Somabhai, had gone to the house of Dinaben, who was staying in Jay-Chamunda Chawl, Ramapir Tekra, Nava Vadaj, Ahmedabad. At that time, Dinaben and her children were present in the house, but the appellant was not present, as he had gone out of house for the purpose of doing business. Dinaben had prepared dinner for all and all were waiting for the appellant to return home after doing business. At about 9.00 P.M. Dinaben was sitting on the floor near the place of cooking and just near her, Dahiben i.e. her sister was also sitting; whereas Somabhai was chit-chatting with Vinod i.e. son of the appellant, on the cot lying in the room and Shantaben was sitting outside the room in the osari. The evidence on record shows that the appellant had bad habit of consuming liquor and was not giving any amount to his wife Dinaben to enable her to meet household expenses. The appellant had come to his house at about 9.00 P.M. and ignoring the presence of his mother-in-law, sister-in-law and brother-in-law, had started abusing his wife Dinaben in filthiest language. Dinaben had tried to pacify the appellant and requested him to behave nicely, as her mother, her sister and her brother-in-law were present in the house. However, the appellant, who had consumed liquor, was in no mood to listen to the entreaties of his wife Dinaben. After sometime, the appellant had demanded tea. Therefore, Dinaben had lighted a stove which was operating through wicks. Before she could place utensil on stove for preparing tea, the appellant, who was in an inebriated state, picked up a Can filled with kerosene and poured kerosene over Dinaben as well as Dahiben, who was sitting on the floor quite near Dinaben. The appellant thereafter kicked the lighted stove, as a result of which polyester Sari, which was put on by the deceased, caught fire. The deceased was engulfed in fire within no time. Dahiben, who was sitting quite near the deceased on the floor, also sustained serious burn injuries. Somabhai i.e. husband of Dahiben, and Vinod, son of the deceased, who were sitting on the cot, had made an attempt to extinguish the fire and in that process, Vinod had received serious burn injuries. Immediately thereafter, the appellant had gone away from his house after bolting the door of the house from outside. The fire had spread in the room rapidly endangering lives of those who were in the room and, therefore, shouts for help were raised by all. One Jashvantrai Ishwarbhai Shrimali, who was residing in the house adjoining to that of the appellant, had immediately come to the rescue of deceased Dinaben and poured water on her from an earthen-pot, but as fire had engulfed the whole room, Jashvantrai had also received serious burn injuries on his chest etc. Meanwhile, several persons of the locality had collected near the place of incident and put out the fire. Bhikhabhai Maganbhai Shrimali, uncle of Jashvantrai Ishwarbhai, had called Ambulance on telephone. Because of the message sent by Bhikhabhai, two vehicles were sent at the place of incident and those who had received burn injuries, were removed to V.S.Hospital for treatment. At the V.S.Hospital, Dr.Niranjan Gupta, who was C.M.O. of the Hospital, had treated the injured. Dr.Gupta had informed Vishnuprasad M.Pandya, who was then Head Constable on duty at V.S.Hospital, that five persons, namely, (i) Somabhai Khemabhai, (ii) Jashvantrai Ishwarbhai, (iii) Vinod Jayantilal, (iv) Dinaben Jayantilal, and (v) Dahiben Somabhai, had received burn injuries because of the act of Jayantibhai Javabhai i.e. the appellant in setting on fire his hut, and were admitted in the hospital for treatment. The Head Constable had noted down the information conveyed to him by Dr.Gupta in Vardhi-book and informed P.S.O. of Naranpura Police Station accordingly. P.S.O. of Naranpura Police Station had handed over extract of Vardhi to Mr.K.C.Patel, who was then P.S.I. of the Police Station. Thereupon, Mr.K.C.Patel had gone to V.S.Hospital and recorded first information report as narrated by Shantaben. He had prepared a yadi to be sent to the Executive Magistrate requesting him to record dying declarations of the injured and obtained an endorsement on yadi itself from the Doctor to the effect that injured were conscious. The said yadi was thereafter despatched to Executive Magistrate. On receipt of Yadi, Mr.Jagdishbhai S.Parmar, who was then Executive Magistrate, had come to the hospital for recording dying declarations of the injured. It was found by Mr.Parmar that Dinaben had sustained serious injuries and was rendered unconscious. Therefore, her dying declaration was not recorded. However, dying declarations of Jashvantrai and Vinodbhai Jayantilal were recorded. Mr.G.H.Patel, who was then P.I. of Naranpura Police Station, had taken over investigation of the case from P.S.I. Mr.K.C.Patel. He had drawn panchnama of place of incident and visited the hospital. P.I. Mr.G.H.Patel had recorded police statements of Jashvantrai and Vinod. During the course of treatment, Dinaben succumbed to her injuries on December 9, 1994; whereas injured Jashvantrai and injured Vinod succumbed to their injuries on December 14, 1994. P.I.Mr.Patel had made necessary arrangements for sending three dead bodies for postmortem examination. During the course of investigation, the appellant was arrested on December 13, 1994. The investigating officer had also recorded statements of those persons who were found to be conversant with the facts of the case. The incriminating articles such as clothes of the deceased, clothes of the injured, clothes of the appellant etc. seized during the course of investigation were sent to Forensic Science Laboratory ["F.S.L" for short] for analysis. On completion of investigation, the appellant was chargesheeted in the Court of learned Metropolitan Magistrate, Ahmedabad of the offences punishable under Sections 302 & 307 of the Indian Penal Code. As the offences punishable under Section 302 & 307 I.P.C. are exclusively triable by a Court of Sessions, the case against the appellant was committed to City Sessions Court, Ahmedabad for trial, where it was numbered as Sessions Case No.96 of 1995. 3. The learned Additional Sessions Judge, Ahmedabad city to whom the case was made over for trial, had framed charge against the appellant at Exh.2 of the offences punishable under Sections 302 & 307 I.P.C. The charge was read over and explained to the appellant, who had pleaded not guilty to the same and claimed to be tried. The prosecution had, therefore, examined (1) Dr.Dilip Manubhai Desai as PW.1 at Exh.6, (2) Jagdish Sunderlal Parmar as PW.2 at Exh.14, (3) Bipinchandra Jethalal Chauhan as PW.3 at Exh.18, (4) Shantaben Hirabhai Govabhai as PW.4 at Exh.20, (5) Somabhai Khemabhai as PW.5 at Exh.22, (6) Madhusudan Manilal as PW.6 at Exh.23, (7) Dahiben Somabhai as PW.7 at Exh.28, (8) Vishnuprasad Manilal Pandya as PW.8 at Exh.29, (9) Bhikhabhai Maganbhai Shrimali as PW.9 at Exh.31, (10) Kiritbhai Chhotalal Patel as PW.10 at Exh.32, (11) Dr.Jayesh Vaghjibhai Limbachiya as PW.11 at Exh.36, (12) Govindbhai Hirabhai Patel as PW.12 at Exh.42, and (13) Kiritbhai Amthabhai Shrimali as PW.13 at Exh.54, to prove its case against the appellant. The prosecution had also produced documentary evidence such as postmortem notes of deceased Jashvantrai Ishwarbhai at Exh.7, postmortem notes of deceased Dinaben Jayantilal at Exh.8, postmortem notes of Vinod Jayantilal at Exh.9, dying declaration of Jashvantrai at Exh.15, yadi received by Executive Magistrate for recording dying declarations of the injured at Exh.16, dying declaration of deceased Vinod Jayantilal Parmar at Exh.17, panchnama of place of occurrence at Exh.19, First Information Report lodged by Shantaben at Exh.21, arrest panchnama of the appellant at Exh.24, inquest panchnama relating to deceased Jashvantrai at Exh.25, inquest panchnama of Dinaben at Exh.26, inquest panchnama of Vinod at Exh.27, Vardhi sent by police constable Vishnuprasad to P.S.O. of Naranpura Police Station at Exh.30, intimation given to competent officer to make report under Section 157 of the Code at Exh.33, injury certificate of witness Somabhai Khemabhai at Exh.37, certificate indicating injuries sustained by witness Dahiben at Exh.38, medical case papers of deceased Dinaben at Exh.39, medical case papers of deceased Jashvantrai at Exh.40, medical case papers of deceased Vinod at Exh.41, statement of Jashvantrai Shrimali recorded by P.I. Mr.Patel at Exh.43, statement of deceased Vinod Jayantilal recorded by P.I. Mr.Patel at Exh.44, map of place of incident at Exh.45, report of analysis forwarded by F.S.L. at Exh.47, entry made in the diary maintained at the police station pursuant to the information given by Head Constable Vishnuprasad at Exh.49, panchnama of seizure of clothes of the injured and the deceased at Exh.55 etc. in support of its case against the appellant. 4. After recording of evidence of prosecution witnesses was over, the learned Judge had explained to the appellant the circumstances appearing against him in the evidence of prosecution witnesses and recorded his further statement as required by Section 313 of the Code of Criminal Procedure, 1973. In his further statement, case of the appellant was that his mother-in-law had filed a false complaint against him and that he was not present at the time of incident. However, neither he had examined himself on oath nor any witness in support of the defence which was pleaded by him in his further statement. 5. On evaluation of evidence adduced by the prosecution, the learned Judge held that it was proved by the prosecution beyond reasonable doubt that deceased Dinaben had died a homicidal death. According to the learned Judge, the evidence of witnesses (i) Shantaben Hirabhai Govabhai, PW.4, recorded at Exh.20, (ii)Somabhai Khemabhai, PW.5, recorded at Exh.22,and (iii) Dahiben Somabhai, PW.7, recorded at Exh.28 as well as dying declarations of deceased Jashvantrai and deceased Vinod Jayantilal were trustworthy, cogent and consistent which established beyond pale of doubt that the appellant had murdered his wife by pouring kerosene over her and attempted to commit murder of Somabhai Khemabhai and Dahiben Somabhai. In view of this conclusion, it was deduced by the learned Judge that the appellant was liable to be convicted of the offences punishable under Sections 302 & 307 I.P.C. It was further noticed by the learned Judge that deceased Jashvantrai and deceased Vinod Jayantilal had received burn injuries while attempting to save deceased Dinaben Jayantilal and ultimately died, which was the result of the act done by the appellant with the knowledge that it was likely to cause death of the deceased or to cause such bodily injury as was likely to cause death of the deceased and, therefore, the appellant was also liable to be convicted of the offences punishable under Section 304 Part-II I.P.C. In view of abovereferredto conclusions, the learned Judge has convicted the appellant of the offences punishable under Sections 302, 307 & 304 I.P.C. and imposed sentences referredto earlier by judgment dated August 27, 1996, giving rise to instant appeal. 6. Ms.Banna Dutta, learned counsel of the appellant, contended that the prosecution has failed to prove the motive which prompted the appellant to commit crime in question and, therefore, the judgment impugned in the appeal should be set aside. According to the learned counsel of the appellant, Vardhi produced by the prosecution at Exh.16 indicates that the appellant had burnt roof of his house, as a result of which several persons had received burn injuries and, therefore, the case of the prosecution that the appellant had poured kerosene over his deceased wife and sister-in-law and kicked lighted stove, as a result of which, burn injuries were received by the deceased as well as by her sister and her brother-in-law should have been disbelieved by the Court. It was argued that Exh.16 should have been treated as First Information Report because it was recorded prior in point of time than the complaint of Shantaben, and as Exh.16 completely exonerates the appellant, the appeal should be allowed. What was maintained before the Court was that Exh.16 does not indicate that the appellant had caused burn injuries to the deceased and others and, therefore, interested version of the eye witnesses should have been disbelieved by the learned Judge. According to the learned counsel of the appellant, the contents of panchnama of place of occurrence produced at Exh.19 show that the police had recovered an open empty wick stove on which there were no black-spots which would have been found if it had been filled up with kerosene and, therefore, the case of the prosecution that the appellant had poured kerosene over the deceased and others who, in turn, had received burn injuries because fire had taken place due to lighted stove, should have been disbelieved. It was argued that the case of the prosecution was that deceased Dinaben was about to prepare tea when the incident had taken place, but no utensil was recovered indicating that any preparation was made by the deceased for tea and, therefore, the prosecution case should have been disbelieved by the learned Judge. The grievance made by the learned counsel of the appellant was that investigation carried out in the case was not honest and, therefore, benefit of doubt should have been given to the appellant. It was urged that prior to recording of dying declarations, opinion of the medical officer to the effect that both the deceased were conscious and in a fit state of mind to make statement was not obtained and, therefore, those dying declarations should not have been taken into consideration while deciding the question of guilt or otherwise of the appellant. It was emphasised that four dying declarations, which are on record of the case, were not admissible under Section 32 of the Indian Evidence Act because the statement in a dying declaration of one dead person in regard to the death of another is not a relevant fact with respect to the question about the death of the latter and, therefore, those dying declarations should be discarded while deciding the question whether the appellant had caused death of his wife Dinaben or not. It was argued that once those dying declarations are kept out of consideration for deciding the question whether the appellant had caused murder of his wife or not, the Court is left with evidence of interested witnesses, which is neither credible nor cogent and, therefore, the appeal should be accepted. 7. Mr.Sudhansu S.Patel, learned counsel of the State Government, contended that Exh.16 is the yadi forwarded by police officer to Executive Magistrate requesting him to record dying declarations of injured, but Vardhi i.e. information conveyed by Head Constable Vishnuprasad pursuant to instructions of C.M.O. Dr.Niranjan Gupta of Sheth Vadilal Hospital is produced on record at Exh.30 and, therefore, the arguments advanced by the learned counsel of the appellant based on Exh.16 should be treated as having been advanced with reference to Exh.30. It was argued that C.M.O. Dr.Niranjan Gupta of Sheth Vadilal Hospital is not examined as a witness in the case and, therefore, the information conveyed by Head Constable Vishnuprasad, as reflected in Exh.30, will have to be regarded as hearsay evidence, as a result of which the learned Judge was justified in not treating the same as F.I.R. and treating the complaint of witness Shantaben as F.I.R. in the case. It was argued by the learned A.P.P. that the presence of Shantaben as well as that of injured witness Somabhai Khemabhai and injured witness Dahiben Somabhai at the time and place of incident is hardly in dispute and, therefore, their evidence cannot be brushed aside on the ground that they are interested witnesses as is contended by the learned counsel of the appellant. According to the learned A.P.P., the record does not show that Somabhai Khemabhai or for that reason Dahiben Somabhai or complainant Shantaben, were on inimical terms with the appellant and as there was no possibility of their screening the real culprit, as they were close relatives of deceased Dinaben, the learned Judge was justified in accepting their evidence, more particularly when no major contradictions and/or omissions with reference to their earlier police statements were brought on record. It was argued that one of the tests to determine whether dying declaration produced is reliable or not is to find out whether the person who had recorded the same was satisfied that he was recording statement of a person, who was conscious and in a fit state of mind, and as this test stands satisfied by reliable testimony of Executive Magistrate Mr.J.S.Parmar recorded at Exh.14 as well as that of P.I. Mr.G.H.Patel recorded at Exh.42, absence of certificate from medical officer to the effect that makers of dying declarations were conscious and in a fit state of mind to make statements, is of no consequence. While dealing with the plea advanced by the learned counsel of the appellant that the statement in the dying declarations of dead persons in regard to the death of the other deceased is not a relevant fact and not admissible in evidence with respect to offence of murder of deceased Dinaben, it was argued that the question whether the statement of one dying person can be relevant with respect to the death of another depends upon (a) whether it was made in continuum of a narration describing the final occurrence concerning the declarant; (b) whether it is directly concerned with an event which took place in the presence, sight or hearing of the declarant, (c) whether that event has some proximate relation to the actual final occurrence, and (d) whether the declaration would become unintelligible or distorted if the version of that event is bottled out from the declaration and, therefore, having regard to these relevant factors, it is not correct to argue that the statement in dying declarations of the deceased in regard to death of deceased Dinaben is not a relevant fact and not admissible under Section 32 of the Evidence Act. The learned counsel of the State Government emphasised that reliable testimony of Shantaben and that of Somabhai as well as that of Dahiben establishes that the appellant had poured kerosene over deceased Dinaben and Dahiben and kicked the lighted stove, as a result of which, three persons had received injuries, out of whom one had died and two persons, who had attempted to save the deceased, had also died and, therefore, conviction of the appellant under Sections 302, 307 & 304 Part-II I.P.C. cannot be regarded as illegal or erroneous. It was pointed out to the Court that over and above the intention of the appellant to cause death of his deceased wife Dinaben, it was also his intention to cause murder of Dahiben, who was sister of the deceased, and Somabhai, who was brother-in-law of the deceased and, therefore, conviction of the appellant under Section 307 I.P.C., being well-founded, should be upheld by this Court. The learned counsel contended that the act of the appellant of pouring kerosene over the deceased and Dahiben as well as Somabhai and setting them on fire by kicking stove was such that the fire had engulfed the whole room and, therefore, it must be held by the Court that the act was done with knowledge by the appellant that it was likely to cause death or to cause such bodily injury as was likely to cause death of the persons who were to make attempt to save the persons who were set on fire and, therefore, conviction under Section 304 Part-II I.P.C. also should not be regarded as illegal. The learned counsel of the State Government emphasised that cogent and convincing reasons have been assigned by the learned Judge for convicting the appellant of the offences punishable under Sections 302, 307 & 304 Part-II I.P.C. and as the learned counsel of the appellant has failed to dislodge them, the appeal should be dismissed. 8. This Court has undertaken a complete and comprehensive appreciation of all vital features of the case and the entire evidence on record with reference to broad and reasonable probabilities of the case. The fact that the deceased had died a homicidal death is not in dispute. It is not argued before this Court that the deceased had received burn injuries accidentally nor it is argued before this Court that the deceased had received burn injuries as she had committed suicide. The reliable testimony of Shantaben, who is the mother of deceased Dinaben as well as that of injured Somabhai Khemabhai, who is brother-in-law of deceased Dinaben as well as that of Dahiben, who is real sister of deceased Dinaben, would show that the appellant had poured kerosene over