IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No 994 of 1995 with Misc. Criminal Application No.5081 of 1995 (suo-motu for enhancement of sentence of appellant No.1-Natvarbhai Alias Babubhai Karsanbhai Parmar) For Approval and Signature: Hon'ble MR.JUSTICE M.H.KADRI and Hon'ble MR.JUSTICE R.R.TRIPATHI ============================================================ 1. Whether Reporters of Local Papers may be allowed : NO to see the judgements? 2. To be referred to the Reporter or not? : NO 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 Civil Judge? : NO -------------------------------------------------------------- NATVARBHAI @ BABUBHAI& OTHERS. Versus STATE OF GUJARAT -------------------------------------------------------------- Appearance: Mr. K.J. Shethna, Senior Counsel, for MR YU MALIK for appellants Mr. K.G. Sheth, APP, for Respondent No. 1 -------------------------------------------------------------- CORAM : MR.JUSTICE M.H.KADRI and MR.JUSTICE R.R.TRIPATHI Date of decision: 28/12/1999 COMMON ORAL JUDGEMENT (Per: Kadri, J.) 1. Appellants, by filing this appeal under Section 374 of the Code of Criminal Procedure, have challenged judgment and order dated September 5, 1995, of the learned Additional Sessions Judge, Court No.6, City & Sessions Court, Ahmedabad, in Sessions Case No.90 of 1994, by which appellant No.1 was convicted for the offences under Sections 302 and 498(A) of the Indian Penal Code and sentenced to undergo imprisonment of R.I. for life under Section 302 of Indian Penal Code and R.I. for two years under Section 498(A) of the Indian Penal Code, and appellant No.2 was convicted under Section 302 read with Section 34 of the Indian Penal Code and sentenced to undergo imprisonment of R.I. for life. 2. On December 4, 1995, when Criminal Appeal No.994 of 1995 was placed for admission/hearing before the Court (Coram: K.J. Vaidya & M.H. Kadri, JJ.), the following order was passed: "Admit 1. Notice for enhancement of sentence be issued against Natvarbhai alias Babubhai Karsanbhai Parmar, appellant-accused No.1. 2. Since printing of the record takes considerable time and further since, we have issued notice for enhancement of sentence to appellant accused No.1, with a view to see that the 'Sword of Democles' is not kept hanging over the head of appellant No.1, we dispense with printing. But at the same time, we direct the Sessions Court to prepare the paper book as clear and complete as the printed one and forward the same so as to reach this Court on or before 15th February 1996 without fail, and on receipt of the same, the office is directed to place this appeal on the final hearing board in the first week of March, 1996. 3. Mr. K.V.Shelat, Ld Advocate appearing for the appellant No.2, has vehemently pressed for bail. Having regard to the facts and circumstances of the case, it is not possible to accede to his request. When this much order was passed, it was pointed out to us by Mr. Shelat that many a time, despite a fixed date is given, the concerned matter is not heard and, in this case, if the appeal is not heard in the first week of March, 1996, then, he may be permitted to revive his application for bail for appellant No.2. The Ld. APP has no objection if the Ld. Advocate for the appellant No.2 makes such an application. 4. In this view of the matter so far as applicant No.2, Raju alias Rajeshbhai Karsanbhai Parmar is concerned, his request for bail is refused at this stage however, with liberty to move for bail, in case the appeal is not heard in the first week of March 1996." 2. As the proceedings arose from the same judgment and order and, as common questions of facts and law are involved, we propose to dispose the Criminal Appeal as well as Criminal Misc. Application of by this common judgment. 3. The prosecution case, as unfolded at the trial, be summarized, as under:- Marriage between appellant No.1 and Madhuben (hereinafter referred to as 'the deceased') had taken place prior to nine years of the date of the incident, which took place on January 11, 1994. The deceased had given birth out of the said wedlock to three daughters. Appellant no.1, at the relevant time, was serving as delivery boy of LPG Cylinder. The deceased and appellant No.1 were residing in joint family along with two brothers of appellant N.1 at Government "G" Colony, Block No.27/227, Sukhramnagar. As per the prosecution case, the deceased was treated with cruelty as she had not brought jiyanu (gifts) at the time of birth of child. It was alleged that, because of cruelty meted out to the deceased, she often used to go to her mother's place where she complained against the appellants and the harassment caused by them to her. 4. As per the prosecution case, in the early morning hours of January 11, 1994, i.e. about 5 a.m., when deceased Madhuben was breast-feeding her small daughter in the kitchen, appellant No.1 came with a plastic cane (kerba)) which was filled with kerosene and poured kerosene on the deceased. It is alleged that appellant No.1 lit a match-stick and set the deceased on fire. As per the prosecution case, appellant No.2 and the younger brother of the appellants, namely, Jitu (juvenile- who is not before this Court) had snatched away the younger daughter from the lap of the deceased. Appellant No.2 and said Jitu instigated appellant No.1 that she should be set on fire. The deceased, after engulfing fire set on by appellant No.1, ran out of the kitchen to the adjoining varandha where appellant No.1 threw water on her body. Because of extensive burns on her body, the deceased cried and raised shouts. The persons residing in neighbourhood reached the house of appellant No.1. The deceased had sustained severe burn injuries all over her body and the appellants had taken the deceased in an Ambulance Van to Shardaben Hospital where, at 7.45 a.m. the deceased was examined by Dr. Jitendra Virabhai Patel, who was on duty at the Hospital as Chief Medical Officer. Dr. Jitendra Patel had referred the patient to plastic surgery ward. As per the evidence of Dr. Jitendra Patel, the deceased had sustained severe burns all over body. From Shardaben Hospital, vardhi was sent to Rakhial Police Station that one Madhuben was brought to the hospital by the appellants with burn injuries of 80%. The said vardhi was received by Rakhial Police Station. News about burn injuries sustained by the deceased was sent to the brother of the deceased, namely, P.W.6, Amrutbhai Becharbhai Parmar. Amrutbhai Becharbhai Parmar arrived at Shardaben Hospital at around 10 and 11 a.m. on January 11, 1994. The deceased had informed her brother that she was burnt. The mother of the deceased was residing at village Amrapura and, therefore, Amrutbhai went to village Amrapura to call his mother. The mother of the deceased, namely, Shantaben, P.W.7, arrived at the hospital at around 6 p.m., but, before, that the deceased had expired around 3 p.m. 5. As per the prosecution case, after receiving vardhi from Shardaben Hospital, P.I. K.K. Patel, who was at the relevant time working as IInd P.I. in Rakhial Police Station, arrived at Shardaben Hospital at 10.30 a.m. P.I. K.K. Patel met the Doctor on duty at the hospital and enquired about burn injuries sustained by the deceased. He was informed by the Doctor who was on duty at the hospital that the deceased had sustained burn injuries of 78%. P.I. Patel sent yadi to the Executive Magistrate for recording dying declaration of the deceased. Before sending the yadi, P.I. Patel obtained endorsement of the doctor to the effect that the deceased was conscious and was in a fit state of mind to give dying declaration. After sending yadi to the Executive Magistrate, P.I. Patel went to the burns ward where the deceased was kept as indoor patient. P.I. Patel asserted that the deceased was conscious and was in a fit state of mind and took complaint of the deceased. The complaint was recorded by P.I. Patel between 10.45 a.m. and 11 a.m. Executive Magistrate, Rameshchandra Purshottamdas Patel, received the yadi sent by P.I. Patel to record dying declaration of the deceased at 11.35 a.m. on January 11, 1994. On receiving the said yadi, Executive Magistrate, Rameshchandra Purshottamdas Patel, went to Shardaben Hospital and started recording of dying declaration of the deceased at 12 noon and completed it at 12.16 p.m. Thumb impression of the deceased was also obtained on the dying declaration. After recording of dying declaration, Executive Magistrate Mr. Patel obtained endorsement and signature of the doctor who was in charge of the burns ward that the patient was conscious and well oriented at the time of giving dying declaration. P.I. Patel prepared report under Section 157 of the Code of Criminal Procedure and along with his report submitted complaint of the deceased before Rakhial Police Station where offence was registered against the appellants and the juvenile offender under Section 307, 498(A) and 34 of the Indian Penal Code at C.R. No.I-10/94. After the death of Madhuben, Section 302 of the Indian Penal Code was added in the said crime register. 6. Investigation was carried out by Ist P.I. Mr. Chandansinh Lakhsinh Rathod. P.I. Rathod summoned officers from the Forensic Science Laboratory and, on arrival of the experts of the FSL, he drew panchanama of place of the incident and seized incriminating articles. P.I. Rathod also summoned Circle Inspector who drew map of scene of offence. P.I. Rathod recorded statements of neighbours, namely, Bai Nanda, Govindsinh Devisinh, Kantaben Babulal, etc. Deceased Madhuben expired at 17 hrs. on January 11, 1994. Therefore, P.I. Rathod went to Shardaben Hospital and held inquest of dead body. After holding the inquest, the dead body of the deceased was sent for post-mortem. On arrival of the mother of the deceased, statements of the mother as well as the brother of the deceased were recorded and, in the same night, at about 23.30 hours, the present appellants and the juvenile offender, Jitu, were arrested. Incriminating articles seized from the place of incident were sent to FSL for analysis and, on receipt of the report from the FSl, and, on completion of investigation, charge-sheet came to be filed against the present appellants in the Court of learned Metropolitan Magistrate, Court No.10, Ahmedabad, which came to be registered as Criminal Case No.387 of 1994 for the offences punishable under Sections 302, 498(A) and 114 of the Indian Penal Code. As offence under Section 302 is exclusively triable by Court of Sessions, learned Metropolitan Magistrate, by order dated March 19, 1994, committed case to the Sessions Court, Ahmedabad City, which came to be numbered as Sessions Case No.90 of 1994. 1991. 7. Charge Exh.2 was framed against the appellants by the learned Sessions Judge for the offences punishable under Sections 302, read with section 34 and 498A of the Indian Penal Code. The charge was read over and explained to the appellants. They pleaded not guilty to the charge and claimed to be tried. To bring home the guilt of the appellants, the prosecution examined (I) PW 1, Dr. Pratik R. Shah Exh.7; (II) PW 2, Executive Magistrate, Shri Rameshchandra Parshottam Patel, Exh.9, (III), PW 3, Police Head Constable, Laxmanbhai Gemabhai Chauhan, Exh.12, (IV) PW 4, Milan Mohanlal Dave Exh.15, (V) PW 5, Nandaben Manilal Parmar, Exh.25, (VI) PW 6, Amrutbhai Becharbhai Parmar Exh.26, (VII) PW 7, Shantaben Becharbhai Parmar Exh.27, (VIII) PW 8, Second P.I. Keshavlal Kodarlal Patel Exh.32, (IX), PW 9, Dr.Jitendra Virabhai Patel, Exh.39, and (X) P.W.10, First PI, C.L.Rathod, at Exh.40. The prosecution produced documentary evidence consisting of inquest panchanama, post-mortem notes, yadi sent to the Executive Magistrate, dying declaration of the deceased recorded by the Executive Magistrate, copy of vardhi book of Rakhial Police Station, panchanama of scene of offence, map of scene of offence, panchanama of seizure of clothes put on by the deceased, panchanama of seizure of clothes put on by the appellants, vardhi received from Shardaben Hospital, report of FSL, complaint of the deceased Madhuben recorded by PI, Patel, etc. to prove the case against the appellants. 8. After recording of evidence of prosecution witnesses was over, the appellants were generally questioned by the learned Additional Sessions Judge and their statements were recorded under Section 313 of the Code of Criminal Procedure. In their statements, the appellants denied to have committed any offences with which they were charged. However, the appellants had admitted that they had taken deceased Madhuben to Shardaben Hospital for treatment. Appellants Nos. 1 and 2 submitted their written statements at Exh.43 and 44 respectively. In his written statement, appellant No.1 stated that his father Karsanbhai Ambarambhai Parmar was running a provisional store and was residing at Odhav Rabari Colony, and appellant No.2, Raju, was residing at Haripura, Taluka Kadi. Appellant No.1 stated that he was married with deceased Madhuben prior to nine years from the date of incident and it was second marriage of deceased Madhuben. He stated that he had not treated deceased Madhuben with cruelty and not demanded dowry or gift from her brother or mother. Both the appellants, in their further statements, stated that false dying declarations were got prepared with a view to cook up a false case against them. 9. Learned Sessions Judge, on overall appreciation of oral as well as documentary evidence, concluded that (1) deceased Madhuben was treated with cruelty by appellant No.1 as she did not bring enough money and gift after birth of her daughters; (2) deceased Madhuben died homicidal death; (3) dying declaration in form of complaint lodged by deceased Madhuben at Exh.33 and dying declaration recorded by the Executive Magistrate, Exh.10, inspired confidence and were recorded when deceased Madhuben was conscious and in fit state of mind. (4) dying declarations recorded were corroborated by oral testimony of P.W.6, Amrutbhai Becharbhai Parmar, and P.W.7, Shantaben Becharbhai Parmar, who are brother and mother of deceased Madhuben; (5) evidence of P.W.5, Nandaben Manilal Parmar, who is neighbour of deceased Madhuben, also supported prosecution version that the deceased was conscious even after sustaining burn injuries at her residence. (6) evidence of P.I. Patel and Executive Magistrate R.P. Patel is reliable and trust-worthy and there was no reason for P.I. Patel or Executive Magistrate to falsely record dying declarations implicating the appellants; (7) two dying declarations, one recorded by P.I. Patel and the other recorded by Executive Magistrate, R.P.Patel, proved beyond reasonable doubt that the deceased Madhuben was treated with cruelty and on the night of January 11, 1994, the appellants and the juvenile offender, Jitu, poured kerosene on deceased Madhuben and set her on fire; (8) vardhi lodged from Shardaben Hospital also proved beyond reasonable doubt that deceased Madhuben was killed by the appellants by pouring kerosene on her body; (9) there was meeting of mind between the appellants and as a result of the meeting of mind, they had shared common intention to cause death of Madhuben by pouring kerosene on her body and setting her ablaze. In the ultimate decision, learned Sessions Judge convicted appellant No.1 for the offences under Sections 302 and 498(A) of the Indian Penal Code and sentenced him to undergo R.I. for life under Section 302 of Indian Penal Code and R.I. for two years under Section 498(A) of the Indian Penal Code, and convicted appellant No.2 for the offences under Section 302 read with Section 34 of the Indian Penal Code and sentenced him to undergo R.I. for life giving rise to filing of the present appeal by the appellants. 10. We have been taken through the entire evidence on record by learned Senior Advocate, Mr. K.J. Shethna, assisted by learned advocate Mr. Y.U. Malik, and learned Additional Public Prosecutor, Mr.K.G. Sheth. 11. Learned Senior Advocate, Mr. K.J. Shethana, submitted that first information report recorded by P.I. Patel did not bear endorsement of the Doctor to the effect that, when he recorded complaint of deceased Madhuben, she was conscious and in a fit state of mind. It is contended by learned Senior Advocate for the appellants that, as per the evidence of Dr. Pratik Shah, deceased had suffered second and third degree of burns of about 75% and she was not in a fit state of mind or was in a position to speak and, therefore, it should be held that it was not possible for her to give detailed version about the incident as mentioned in the FIR Exh.33. It is contended by learned Senior Advocate for the appellants that, as per the evidence of P.W.4, Amrutbhai, who is brother of deceased Madhuben, when he visited her at 10 a.m., she was not able to speak coherently and, therefore, it was not possible for her to lodge complaint before P.I. Patel at 10.45 a.m. It is contended by learned Senior Advocate for the appellants that evidence of P.I. Patel was not reliable and trustworthy as he had not noted down the vardhi in the log-book maintained in the wireless jeep. It is contended by learned Senior Advocate for the appellants that P.I.Patel had in most cavalier fashion, recorded first information report of Madhuben without obtaining endorsement of the Doctor who was on duty in the burns ward. It is contended by learned Senior Advocate for the appellants that, as per the evidence of Dr.Pratik Shah, both palms of the deceased including her thumbs were burnt and it was not possible for the deceased to give thumb mark on the so-called first information report Exh.33. It is contended by learned Senior Advocate for the appellants that, in the dying declaration recorded by the Executive Magistrate, which was produced at Exh.11, endorsement of the Doctor was obtained that, 'patient is conscious and well oriented at the time of dying declaration', but, since the said Doctor was not examined by the prosecution, it creates doubt about reliability and trustworthiness of dying declaration recorded by the Executive Magistrate. It is contended by learned Senior Advocate for the appellants that even before recording of dying declaration, certificate of Doctor ought to have been obtained that the patient was conscious and was in a fit state of mind. It is contended by learned Senior Advocate for the appellants that there was inconsistency between the dying declaration recorded by the Executive Magistrate and the complaint recorded by P.I. Patel. It is contended by learned Senior Advocate for the appellants that oral evidence of P.W.6, Amrutbhai and P.W. 7, Shantaben, (brother and mother of the deceased), did not prove beyond reasonable doubt that the deceased was treated with cruelty by appellant No.1. It is contended by learned Senior Advocate for the appellants that when P.W.6, Amrutbhai, brother of the deceased, visited her at Shardaben Hospital at 10 a.m., she was able to speak in broken words - 'I have burnt : I have burnt'. It is contended by learned Senior Advocate for the appellants that evidence of P.W.6, Amrutbhai, clearly suggests that Madhuben could not have been able to give detailed complaint before P.I. Patel at 10.45 a.m. and detailed version of the incident in the dying declaration recorded by the Executive Magistrate at 12 noon. It is contended by learned Senior Advocate for the appellants that endorsement of the Doctor below dying declaration that 'patient was conscious and well oriented' raises serious doubt in view of the oral evidence of P.W.6, Amrutbhai Becharbhai Parmar. It is contended by learned Senior Advocate for the appellants that the Executive Magistrate, in his oral testimony, had an audacity to depose that he did not remember whether the deceased was admitted in general ward or special ward or whether other patients were there in the ward. It is therefore contended by learned Senior Advocate for the appellants that the evidence of P.I. Patel and Executive Magistrate R.P.Patel, raises serious doubt as to whether they had in fact recorded so-called dying declarations of deceased Madhuben. Learned Senior Advocate for the appellants in the alternative submitted that evidence against appellant No.2 was very weak as he had not taken any part in causing cruelty on deceased Madhuben and allegation against appellant No.2 in two dying declarations also raises serious doubt about his involvement that he had shared common intention to kill Madhuben. It is, therefore, urged by learned Senior Advocate for the appellants that, in view of the improbable and untrustworthy evidence of the prosecution witnesses, benefit of doubt should be given to the appellants and the appeal be allowed and the conviction and sentence be set aside. Learned Senior Advocate for the appellants further submitted that, with regard to issuance of notice for enhancement of sentence against appellant No.1, even if it is held that appellant No.1 was found guilty as held by the Sessions Court, this was not a rarest of rare case where severe punishment of death sentence was called for. Learned Senior Advocate for the appellants submitted that, looking to the evidence of the prosecution witnesses, when the appellants are entitled to benefit of doubt, notice for enhancement of sentence issued against appellant No.1 be discharged. 12. Learned Additional Public Prosecutor Mr. K.G. Sheth, vehemently submitted that evidence of prosecution witnesses has proved beyond doubt that the deceased was treated with cruelty by appellant No.1. It is submitted by learned counsel for the Government that deceased Madhuben, who was in peak of her youth, would not have dared to commit suicide leaving behind her three minor children. It is submitted by learned counsel for the Government that the incident had taken place in the early morning hours of January 11, 1994 when the deceased was breast-feeding her minor daughter in the kitchen and appellant No.1 came and poured kerosene on her body and set her ablaze. It is submitted by learned counsel for the Government that involvement of appellant No.2 and juvenile offender, Jitu, has also been proved beyond doubt that they had taken active part in instigating appellant No.1 to pour kerosene on the deceased and set her on fire. Learned Additional Public Prosecutor further submitted that two dying declarations in the nature of first information report Exh.33 and the dying declaration Exh.11 recorded by the Executive Magistrate, proved beyond reasonable doubt that the appellants had shared common intention to cause murder of deceased Madhuben by pouring kerosene on her and setting her ablaze. It is submitted by learned counsel for the Government that endorsement made by the Doctor on the yadi sent to the Executive Magistrate and endorsement on the dying declaration to the effect that the patient was fully conscious and well oriented, read with oral evidence of Executive Magistrate, Mr. R.P. Patel, clearly indicates that the deceased was fully conscious and was in a fit state of mind to make statement when the dying declaration was recorded. It is submitted by learned counsel for the Government that first information report lodged by the deceased had become dying declaration after her death and the dying declaration recorded by the Executive Magistrate makes it abundantly clear that the appellants had subjected deceased Madhuben to cruelty and, therefore, conviction of appellant No.1 under Section 498(A) of the Indian Penal Code should be upheld. It is submitted by learned counsel for the Government that two dying declarations recorded by P.I. Patel and Executive Magistrate, R.P. Patel, proved beyond reasonable doubt that both the appellants had shared common intention to commit murder of the deceased and, therefore, they had poured kerosene on her and set her ablaze. Learned counsel for the Government, while addressing the Court on the question of enhancement of sentence, submitted that appellants had acted mercilessly in committing murder of the deceased while she was breast-feeding her minor daughter and then snatched the child and acted in most brutal manner by drenching the deceased with kerosene, and aided each other to commit ghastly murder of the deceased. It is therefore submitted by learned counsel for the