CR.A/18/2000 1/22 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 18 of 2000 For Approval and Signature: HONOURABLE MR.JUSTICE C.K.BUCH HONOURABLE MR.JUSTICE DN PATEL ========================================= 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 ? ========================================= LILABEN W/O VIRCHAND PATANI - Appellant(s) Versus STATE OF GUJARAT & 1 - Opponent(s) ========================================================= Appearance : MS SADHNA SAGAR for Appellant(s) : 1, MS DS PANDIT, LD.ADDL.PUBLIC PROSECUTOR for Opponent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE C.K.BUCH and HONOURABLE MR.JUSTICE D.N.PATEL Date : 15/12/2008 ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE D.N.PATEL) 1. The present appeal has been preferred by the appellant-orig.convict (hereinafter referred CR.A/18/2000 2/22 JUDGMENT to as 'the appellant') against the judgment and order of conviction and sentence dated 23rd September 1998 passed by the learned Additional Sessions Judge, Court No.23, Ahmedabad, in Sessions Case No.104 of 1998, whereby the present appellant has been convicted and sentenced for the offence punishable under Section 302 of the Indian Penal Code for Life Imprisonment and a fine of Rs.200/- and in case of default, further rigorous imprisonment for one month. 2. The facts of the prosecution case in nutshell are as under : 2.1 On 20th August 1997 in the City of Ahmedabad at about 21 hours, the present appellant poured kerosene on her husband-Virchandbhai Havabhai Patani and ablaze him. As per the case of prosecution, the Police registered the offence punishable under Section 307 of the Indian Penal Code because the injured was brought to the Civil Hospital. Upon information given by the Dr.Mustak Ahmed Gulam Rasul Shaikh, CR.A/18/2000 3/22 JUDGMENT Casualty Medical Officer, the Police Constable informed Meghaninagar Police Station, where it has been recorded as entry in the Police Station register (Ex.28) that the present appellant poured kerosene upon her husband- Virchandbhai (deceased) and he was ablaze by his wife at 21-15 hrs. of 20th August 1997. This entry was recorded at 22-45 hrs. on 20th August 1997 at Meghaninagar Police Station. The patient (deceased) was transferred to Burns Ward. Upon receipt of the aforesaid information from the Police Constable, the First Information Report (Ex.29) was registered at Meghaninagar Police Station on 21st August 1997 at 00-30 hours, wherein also it has been stated that when the victim was sleeping, his wife poured kerosene upon him and he was set on fire by her. Thereafter, the Yadi (Ex.10) was sent to Executive Magistrate for recording dying declaration. The dying declaration (Ex.11) was recorded by the Executive Magistrate on 21st August 1997. It was completed at 01-50 a.m. on 21st August CR.A/18/2000 4/22 JUDGMENT 1997. The endorsement was also made by PW-12 upon dying declaration that the patient was conscious. Thereafter, Virchand Patani-husband of appellant, expired and the offence punishable under Section 307 of the Indian Penal Code was altered to the offence punishable under Section 302 of the Indian Penal Code. Upon completion of investigation, the chargesheet was filed and Sessions Case No.104 of 1998 was registered against the present appellant and upon recording evidence, the appellant has been convicted for the offence punishable under Section 302 of the Indian Penal Code. 3. We have heard the learned counsel appearing for the appellant who has mainly submitted that there are a number of omissions, contradictions and improvements in the depositions of prosecution witnesses and, therefore, the judgment and order of conviction and sentence deserves to be quashed and set aside. CR.A/18/2000 5/22 JUDGMENT 3.1 It has also been argued by the learned counsel appearing for the appellant that PW-2- Ramilaben Virchandbhai, PW-3-Amthiben Govindbhai, PW-4 Barbarbhai Havabhai, have turned hostile and have not supported the case of prosecution and, therefore, the offence has not been proved beyond reasonable doubt against the present appellant. 3.2 It has also been argued that there is a time gap between the date of offence and death of Virchandbhai (victim), and therefore, the appellant at the most can be convicted for the offence punishable under Section 304 Part I of the Indian Penal Code as there was no intention of causing death of Virchandbhai by the appellant. This aspect of the matter has not been appreciated by the trial Court and, therefore also, the judgment and order of conviction and sentence passed by the trial Court deserves to be quashed and set aside. CR.A/18/2000 6/22 JUDGMENT 4. We have heard Ms.D.S. Pandit, learned Additional Public Prosecutor, appearing on behalf of respondent-State, who has mainly submitted that the prosecution has proved the offence in question beyond reasonable doubt. Looking to the evidence on record, especially Ex.28, which is an entry made by Police Station Officer in the Meghaninagar Police Station, it reveals the involvement of the present appellant. Thereafter, upon receipt of information from the hospital, the Police personnel of Meghaninagar Police Station had gone to the Civil Hospital and a complaint (Ex.29) was reduced into writing, wherein also it has been stated by the victim that the present appellant poured kerosene upon him and he was set on fire by the present appellant and upon receipt of burn injuries, he was brought by neighbours to the Civil Hospital. 4.1 It is also submitted by the learned Additional Public Prosecutor that thereafter the Yadi was sent to the Executive Magistrate for recording dying declaration. The dying declaration was CR.A/18/2000 7/22 JUDGMENT recorded at Ex.11, which was started at 01-35 a.m. and completed at 01-50 a.m. on 21st August 1997. There is also an endorsement by PW-12 Dr.Dinesh Ranchhodbhai Dakhara that the patient was conscious. Looking to this dying declaration also, it has been stated by Virchandbhai that the appellant poured kerosene on him and he was ablaze by her. The motive is also referred to in the FIR as well as in the dying declaration. On account of illicit relations with one Fulji, the appellant has committed the offence. Looking to the depositions of doctors who are PW-9, PW-10, PW-11 and PW-12; and looking to the postmortem note as well as the scene of offence panchnama and also the Inquest panchnama, there is enough corroboration to the dying declaration. In fact, the dying declaration is free from any tutoring. Looking to the evidence on record, there is no need to have any further corroboration of any evidence to the dying declaration, because as stated hereinabove, there is enough corroboration to CR.A/18/2000 8/22 JUDGMENT the dying declaration and, therefore, the present appeal may not be entertained by this Court. 5. Having considered the submissions made by learned counsel appearing for both the sides and looking to the evidence on record, it appears that the incident took place on 20th August 1997 at 21-15 hours in the City of Ahmedabad. Virchadbhai (deceased) was brought to the Civil Hospital at Ahmedabad for treatment as he had sustained burn injuries on the face, neck, chest, stomach, on the backside, etc.. The burn injuries were in the nature of First degree, Second degree and Third degree. The Police Constable, who was on duty at Civil Hospital, informed Meghaninagar Police Station about the offence. An entry was immediately made in the Register at Ex.28 that the said Virchandbhai has been brought to the Civil Hospital and his wife has poured kerosene on him and he was set on fire by her and he was referred to the Ward No.G/5. Thereafter, the Police personnel from CR.A/18/2000 9/22 JUDGMENT Meghaninagar Police Station, Ahmedabad City had rushed to the Civil Hospital and recorded FIR at Ex.29 given by Virchandbhai, who later on expired. 6. Looking to the depositions of doctors i.e. PW- 9 to PW-12, the patient (Virchandbhai) was conscious and the complaint was reduced into writing, wherein he has stated that the present appellant being the wife of Virchandbhai had illicit relations with one Fuljibhai and, therefore, she ablaze him. Looking to the depositions of Police witnesses i.e. PW-7 and PW-8, when the FIR was reduced into writing, the patient was conscious and whatever he had stated was reduced into writing and there is a thumb impression of Virchandbhai upon Ex.29. Thus, Ex.28 was reduced into writing first in time at 22-45 hours on 20th August 1997. Thereafter, the FIR was registered on 21st August 1997 at 00-30 a.m. Both these documents are consistent and involve present appellant. CR.A/18/2000 10/22 JUDGMENT 7. Looking to the deposition of PW-1 Ranjitsinh Veersinh Gohil, who is examined at Ex.9, it appears that he is the Executive Magistrate who recorded the dying declaration. Looking to the deposition of this PW-9, he received Police Yadi from Meghaninagar Police Station for recording dying declaration at about 01-05 a.m. on 21st August 1997. Thereafter, he had gone to the hospital and the dying declaration was reduced into writing. There is also endorsement of the doctor upon the said dying declaration to the effect that the patient was conscious at the relevant point of time of recording of dying declaration. The said dying declaration is at Ex.11. Looking to this dying declaration, it was stated by Virchandbhai (deceased) that the appellant had an illicit relations with one Fuljibhai and, therefore, she poured kerosene upon Virchandbhai (deceased) and he was set on fire. Thus, Ex.28 (Yadi), Ex.29 (FIR) and Ex.11 (dying declaration) are the documents which reveal the offence of murder of Virchandbhai. Looking CR.A/18/2000 11/22 JUDGMENT to the cross-examination of this witness, nothing is coming out in favour of the appellant. There is no material to show that the dying declaration (Ex.11) is a result of product of : (a) imaginations, (b) tutoring, or (c) prompting. On the contrary, in the present case Virchandbhai (deceased) made oral dying declaration also before independent witness PW-9 Dr.Mustak Shaikh (of Civil Hospital, Ahmedabad), which has been recorded by the doctor in case history at Ex.33. There is also an entry at Police Station (Ex.28) and FIR at Ex.29, over and above the dying declaration recorded by PW-1 Executive Magistrate at Ex.11. Looking to other corroborative evidence as narrated hereinabove, the dying declaration at Ex.11 is trustworthy, reliable, was made voluntarily and has credibility and there is unalloyed truth in the dying declaration at Ex.11. CR.A/18/2000 12/22 JUDGMENT It has been held in the decision in the case of Dashrath alias Champa and others v. State of Madhya Pradesh, reported in AIR 2008 SC 316, in paragraph nos.13 and 14 as under : “13. In the light of the above principles, the acceptability of alleged dying declaration in the instant case has to be considered. The dying declaration is only a piece of untested evidence and must like any other evidence, satisfy the Court that what is stated therein is the unalloyed truth and that it is absolutely safe to act upon it. If after careful scrutiny the Court is satisfied that it is true and free from any effort to induce the deceased to make a false statement and if it is coherent and consistent, there shall be no legal impediment to make it basis of conviction, even if there is no corroboration. [See Gangotri Singh v. State of U.P. (JT 1992(2) SC 417). Goverdhan Raoji Ghyare v. State of CR.A/18/2000 13/22 JUDGMENT Maharashtra (JT 1993(5) SC 87), Meesala Ramakrishnan v. State of Andhra Pradesh (JT 1994(3) SC 232) and State of Rajasthan v. Kishore (JT 1996(2) SC 595). 14. There is no material to show that dying declarations were result of product of imagination, tutoring or prompting. On the contrary, they appear to have been made by the deceased voluntarily. It is trustworthy and has credibility.” 8. Looking to the Inquest panchnama and looking to the panchnama of scene of offence at Exs.15 and 17 respectively, which are proved by the PW-7 and PW-8, who are Police Witnesses, it is revealed that the smell of kerosene was coming from the dead body of Virchandbhai. There were burn injuries upon the dead body of Virchandbhai and looking to the scene of offence panchnama also, it appears that there was a smell of kerosene in the house of the CR.A/18/2000 14/22 JUDGMENT appellant. This is corroborative to the evidence at Exs.11, 28 and 29. 9. Looking to the Arrest Panchnama of the appellant at Ex.24, the clothes of the appellant were seized by the Police and the same were sent to the Forensic Science Laboratory. Looking to the report of the Forensic Science Laboratory at Ex.20, it transpires that the particles of Hydro- Carbones of the kerosene were found from the clothes of the appellant, which are at Marks 4, 5 and 6 as per the report of the Forensic Science Laboratory. Thus, looking to this report of the Forensic Science Laboratory also, there is a corroboration to the dying declaration. Thus, looking to the depositions of Executive Magistrate, Doctors and Police Witnesses, it is proved by the prosecution beyond reasonable doubt that the present appellant has committed murder of her husband Virchandbhai. No error has been committed by the trial Court in appreciating these CR.A/18/2000 15/22 JUDGMENT witnesses and we see no reason to deviate from the conclusion arrived at by the trial Court. 10. It is contended by the learned counsel appearing for the appellant that some of the close relatives of the appellant have turned hostile and, therefore, the prosecution has not proved the case against the appellant beyond reasonable doubt. This argument is not accepted by this Court, mainly for the reason that looking to the depositions of hostile witnesses, they are (1) PW-2-Ramila Virchandbhai, daughter of the appellant, who was aged 14 years when her deposition was recorded and (2) PW-3-Amthiben Govindbhai, who is the cousin of PW-2. Looking to these depositions, it appears that they have given their depositions only with a view to favour present appellant. Likewise, PW-4-Bharmalbhai Havabhai, who is the brother of Virchandbhai (deceased), has also turned hostile. Suffice it to say that looking to the evidence of PW- 1-Executive Magistrate, who has recorded the dying declaration at Ex.11, he is the CR.A/18/2000 16/22 JUDGMENT trustworthy and reliable witness. There is nothing on record that Virchandbhai was tutored. On the contrary, looking to the evidence as discussed hereinabove, right from Ex.28 onwards, there is a consistent documentary evidence at Exs.28, 29 and 11, which are corroborated by the panchnama of scene of offence and report of the Forensic Science Laboratory. The clothes of the appellant were also having Hydro Carbon particles of kerosene. Looking to the evidence given by the independent witnesses from PW-9 onwards who are doctors, they have specifically stated that Virchandbhai (deceased) had stated before the PW-9- Dr.Mustak Shaikh, that his wife i.e. present appellant, had poured kerosene on him at 09-00 p.m. and she set him on fire. In fact, this tentamounts to an oral dying declaration of the victim before an independent witness. Looking to the deposition of this PW-9 and his cross-examination, he has stated that he had given treatment to Virchandbhai when he was CR.A/18/2000 17/22 JUDGMENT brought to the hospital. He is a trustworthy and reliable witness. The patient was conscious looking to the case history recorded by this witness at Ex.33 that the present appellant poured kerosene upon the patient namely Virchandbhai and he was blazed by the appellant. There is also smell of kerosene from the body of the patient as per the history papers at Ex.33. Thus, looking to the deposition given by this witness as well as other witnesses at Exs.10,11 and 12, the prosecution has proved its case beyond reasonable doubt against the present appellant. The hostile witnesses are very close relatives and they are partisan witnesses and merely because they have turned hostile, it cannot be said that the appellant is an innocent or has not committed murder of her husband Virchandbhai. There is ample evidence against the appellant as stated hereinabove right from Ex.11 (dying declaration), Ex.28 (Police Station Entry), Ex.29 (FIR), Ex.33 (case history recorded by CR.A/18/2000 18/22 JUDGMENT PW-9, who is the doctor of hospital before whom Virchandbhai had stated first in point of time that the appellant had poured kerosene upon him and he was set on fire by her. As a cumulative effect of the aforesaid evidence, no error has been committed by the trial Court in convicting the appellant for committing murder of her husband Virchandbhai. 11. It is contended by the learned counsel appearing for the appellant that as the patient expired after some days, the offence does not fall under Section 302 of the Indian Penal Code, but it falls under Section 304 Part I of the Indian Penal Code. This contention of the learned counsel appearing for the appellant is not accepted by this Court for the reason that looking to the deposition given by PW-9-Dr.Mustak Shaikh, who had given treatment to Virchandbhai first in point of time on 20th August 1997, he has stated that there were burn injuries on the face, on the neck, on the backside, on the chest, on both sides of face and on the CR.A/18/2000 19/22 JUDGMENT stomach of the patient which were of first degree, second degree and third degree, which reveal the intensity of burn injuries. There were injuries on both the upper limbs and face. Looking to the deposition of PW-11- Dr.Chandrakant Darji, he has also stated in his deposition that there were burn injuries on the face, on the ears, on both the sides of chest, on the neck, on the stomach, on the bottom part of right leg; and his both the hands were fully burnt. Looking to the Inquest Panchnama at Ex.15, there were bandages applied upon the dead body of Virchandbhai on both the sides of face, from neck to the waist, on both the hands, on ankle, on both the legs, on thigh of left leg, etc. Thus, looking to the severe burn injuries which have been stated by the doctor as well as which are reflected in the Inquest Panchnama and looking to the intensity of the burn injuries which are of first degree, second degree and third degree respectively; and also looking to the deposition given by PW-1, the CR.A/18/2000 20/22 JUDGMENT death of Virchandbhai was caused due to burn injuries and due to shock on account of burn injuries. Even as per Column No.23 of the postmortem note, which is at Ex.22, the said Column No.23 reads as under : “The cause of death is shock due to burns” 12. Thus, looking to the aforesaid evidence, we see no reason to alter the judgment and order of conviction and sentence from the offence punishable under Section 302 of the Indian Penal Code to Section 304 Part I of the Indian Penal Code. The death of Virchandbhai has taken place on account of burn injuries and due to shock because of burn injuries and merely because the patient had expired after a couple of days i.e. on 03rd September 1997, from the date of incident, the appellant is not entitled to get benefit of reduction in the sentence by altering the conviction from Section 302 of the Indian Penal Code to Section 304 Part I of the Indian Penal Code as prayed for. If there is any doubt as to CR.A/18/2000 21/22 JUDGMENT whether the victim has expired due to septicemia or because of burn injuries, at the most the appellant can canvass the aforesaid argument of altering the judgment and order of conviction and sentence for the offence punishable under Section 302 of the Indian Penal Code, but in the facts and circumstances of the case present case, there is no doubt looking to the deposition of PW-9, PW-10, PW- 11 and PW-12 to be read with Inquest Panchnama, postmortem note and dying declaration, that Virchandbhai had expired because of the burn injuries and shock on account of the burn injuries, which were caused by the present appellant by pouring kerosene on him and setting him on fire and, therefore, we are not inclined to alter the order of sentence from Section 302 to Section 304 Part I of the Indian Penal Code. 13. In view of aforesaid observations and discussion, the present appeal is hereby dismissed. The judgment and order of conviction and sentence dated 23rd September CR.A/18/2000 22/22 JUDGMENT 1998 passed by the learned Additional Sessions Judge, Court No.23, Ahmedabad, in Sessions Case No.104 of 1998, is hereby upheld. The bail bond executed by the appellant shall stand cancelled. The appellant is hereby directed to surrender herself before the trial Court on or before 30th January 2009, failing which the trial Court shall issue a non- bailable warrant for arrest of the appellant so that she is sent to prison to serve the substantive sentence imposed upon her. (C.K. Buch, J) (D.N. Patel, J) Aakar