IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No 745 of 1997 with CRIMINAL APPEAL No 1137 of 1997 For Approval and Signature: Hon'ble MR.JUSTICE M.H.KADRI and Hon'ble MR.JUSTICE H.H.MEHTA ============================================================ 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 concerned : NO Magistrate/Magistrates,Judge/Judges,Tribunal/Tribunals? -------------------------------------------------------------- BABUBHAI LAXMANBHAI Versus STATE OF GUJARAT -------------------------------------------------------------- Appearance: 1. Criminal Appeal No. 745 of 1997 MRS BHARTI D BHATT for Appellant. MR PM VYAS for Appellant. MS REKHA H KAPADIA for Appellant. MR HIREN P VYAS for Appellant. MS MONA B RAVAL for Appellant. MS BR GAJJAR APP for Respondent. 2. Criminal Appeal No. 1137 of 1997 MS BR GAJJAR APP for Appellant. MR DR BHATT for Respondent. -------------------------------------------------------------- CORAM : MR.JUSTICE M.H.KADRI and MR.JUSTICE H.H.MEHTA Date of decision: __/10/2002 CAV JUDGEMENT (Per : MR.JUSTICE H.H.MEHTA) #. As these two appeals are arising from one judgment Ex.60 dated 19/6//1997 rendered by the learned Additional Sessions Judge, Valsad at Navsari (who will hereinafter be referred to as the "learned Judge of the trial Court") in Sessions Case No. 136 of 1995 whereby the appellant of Criminal Appeal No. 745 of 1997 is convicted and sentenced and respondents of Criminal Appeal No. 1137 of 1997 are acquitted of the offences for which the charge was framed against them, at the request of the learned Advocates for the parties of these two appeals, these two appeals are heard, decided and disposed of by this common judgment. #. The appellant of Criminal Appeal No. 745 of 1997, who was the accused No.1 in aforesaid Sessions Case No. 136 of 1995, has, by filing Criminal Appeal No. 745 of 1997 under Sec.374(2) of the Criminal Procedure Code, 1973 (for short "Cr.P.C."), challenged the correctness and legality of aforesaid judgment Ex.60 dated 19/6/1997 rendered in Sessions Case No. 136 of 1995 by the learned Additional Sessions Judge, Valsad at Navsari, whereby he has been convicted under Sec. 235(2), Cr.P.C. for offences punishable under Secs. 302,307, and 436 of the Indian Penal Code and is sentenced for the offence punishable under Sec.302, I.P.C. to undergo life imprisonment and to pay a fine of Rs.7,000/- and in default to pay a fine, to undergo further Rigorous Imprisonment for one year, for offence punishable under Sec.307, I.P.C. he is sentenced to undergo Rigorous Imprisonment for 10 years and to pay a fine of Rs.5,000/and in default to pay a fine, to undergo further Simple Imprisonment for six months and for offence punishable under Sec. 436, I.P.C. he is sentenced to undergo Rigorous Imprisonment for five years and to pay a fine of Rs.5,000/- and in default to pay a fine, to undergo further Simple Imprisonment for six months. The learned Judge of the trial Court directed that the accused No.1 shall undergo all the sentences concurrently. It was further ordered that if the accused No.1 pays a fine as per aforesaid order, an amount of Rs.15,000/-, out of total amount of fine be paid to victim Urmilaben Govindbhai whose husband Govindbhai died in the incident. #. The State Government has, by filing Criminal Appeal No. 1137 of 1997 under Sec.378(1), Cr.P.C. challenged the aforesaid judgment Ex.60 dated 19/6/1997 rendered in Sessions Case No. 136 of 1995 by which the original accused Nos. 2,3 and 4 were acquitted under Sec. 235(1) of Cr.P.C. of offences punishable under Sec. 302 read with Sec. 114 of I.P.Code, under Sec. 307 read with Sec.114 of I.P.Code and under Sec. 436 read with Sec. 114 of I.P.Code. #. The facts leading to these two appeals in a nut shell are as follows: 4.1 Deceased Govindbhai Laxmanbhai Champaneria was residing with his wife Urmilaben (P.W.2) in house situated opposite to Gram Panchayat Office in village Saribujrang (Tal. Gandevi, Dist. Valsad). Said Govindbhai had only one daughter named Nayana who is married and is staying with her husband, abroad in Africa. Govindbhai is doing business of preparing one Part (Patti) which is used in Textile Industry at Udhna and his wife Urmilaben was doing manual household labour work at Surat. Both husband and wife were commuting by train in between Amalsad and Surat. 4.2 Accused No.1 Babubhai Laxmanbhai is elder brother of Govindbhai Laxmanbhai, whereas accused No.3 Bhanuben is the wife of accused No.1. Accused No. 2 -Aswinbhai and accused No.4 -Anitaben are the son and daughter-in-law of accused Nos. 1 and 3 respectively. For the sake of convenience, accused will be referred to hereinafter as A-1, A-2, A-3 and A-4. 4.3 Deceased Govindbhai and Urmilaben were staying in one house which was running in the name of father of the deceased and A-1 in Government Records. From record, it appears that the Kachha house in which the deceased and his wife Urmilaben were residing, was consisting of two rooms. Room towards west was divided into two parts by making partition with the help of Galvanized Iron-Sheets in such a way that each part has its own opening towards the west. The portion towards north was in use of the deceased and Urmilaben and portion towards south was being used by all the accused. Each portion has its own loft and one can see as to what is happening in the loft of southern portion, from northern portion. The second room of that house was towards east and it was being used by all the accused. It is also the case of the prosecution that one Pacca built house of A-1 is situated adjacent to aforesaid house towards north and it was being exclusively used by A-1 and A-3. 4.4 Incident took place at about 2-00 a.m. in the mid-night on 10/2/1995. As stated by the deceased Govindbhai in his complaint Ex.47, in the morning at about 6-30 hrs. of 9/2/1995, he and his wife had left their village for Surat by Valsad Local Railway Train. Both husband and wife returned to their house in the evening at about 7-30 p.m. It is the case of the prosecution that when they opened the gate and entered into their house, they found that smell of Kerosene was emitting from the house. They were under impression that Kerosene might have been spilt over, from the container and therefore, they did not bother much for that smell. Urmilaben prepared meals for their dinner and after taking their dinner, they went to their beds to have their sleep at about 9-00 p.m. 4.5 At about 2-00 a.m. in the midnight, deceased Govindbhai awoke because of some sound from loft being heard by him and saw with the help of light of torch in the loft. He saw that his elder brother Babubhai Laxmanbhai Champaneria (A-1), his wife Bhanuben Babubhai Champaneria (A-3), his son Aswin Babubhai (A-2) and Anita Aswin (A-4) were there in the loft and they poured petrol from carboy on Govindbhai as well as his wife Urmila (P.W.2). All the accused were uttering "today we will kill you". Thereafter, accused ignited something and threw that article on deceased and Urmilaben as a result of which suddenly there was a fire following blaze. Deceased and Urmilaben sustained serious burn injuries due to the fire. Both of them raised shrieks for help. When they were trying to open the doors of their house, they found that the doors were shut from outside. It is the case of the prosecution that as the deceased and Urmilaben raised shrieks, all the accused ran away from the loft. 4.6 Coincidently, at that time two police persons i.e. P.W.3 Valliuddin Usnuddin, Police Constable and P.W.4 Ashokbhai Rajaram were on night petrolling duty by moving in Jeep and when they were passing on the road abutting to Saribujrang Gram Panchayat Office. They saw that one house had caught fire. P.W. 3 Valliuddin got their vehicle halted then and there and both police persons went running towards that house. Constable Ashokbhai was trying to open the doors of that house. Valli Uddin and driver of that jeep tried to call the persons residing nearby. The driver of that jeep informed the Police Station by giving wireless message. Meanwhile, one Firebrigade Van came there. Police Constable Ashokbhai broke opened that doors of the house. That police persons saw that on doors being broken, one lady first came out from that house and following her, one male person was coming out of the house. Both were burning by fire. As per the case of the prosecution, that lady who first came with burn injuries, was P.W.2 Urmilaben wife of the deceased Govindbhai, whereas the male person who followed her was the deceased Govindbhai. They had sustained severe burn injuries. #. It appears from the record that as a result of information given by the Jeep driver on wireless message, Head Constable Gamanbhai Gulabbhai of Amalsad Out Post sent a Yadi ex.20 to P.S.I. Gandevi. On receipt of that Yadi, Entry No.2/95 in Police Station Diary was made in Gandevi Police Station at about 4-00 a.m. on 10/2/1995. As per the evidence of P.W. 3 Valliuddin, he immediately took Govindbhai and Urmilaben, by taking them in Jeep, to Primary Health Center, Amalsad. They reached Primary Health Center, Amalsad at 3-00 a.m. As per the case unfolded by the prosecution, P.W.7 Dr. Dipakkumar Mohanlal Patel was on duty as Medical Officer of Primary Health Center at Amalsad. As per his evidence, at about 3-00 a.m. one police person had brought one lady and one male person to him and both had sustained burn injuries. As P.W.7 Dr. Dipakkumar found that both had sustained severe burn injuries, he immediately referred that two persons to Mengusi General Hospital at Bilimora. Thereupon, P.W.3 Valliuddin immediately shifted Govindbhai and Urmilaben to Mengusi General Hospital at Bilimora. At Mengusi General Hospital at Bilimora, it was told that these two persons had sustained severe burn injuries, and therefore, they should be taken to Navsari Civil Hospital. From record, it appears that a 'refer note' Ex.42 prepared by Medical Officer of Mengusi General Hospital, Bilimora and addressed to Chief Medical Officer, Navsari Civil Hospital, Navsari was given to P.W. 3 Valliuddin. Immediately thereafter, two injured persons were shifted to the Civil Hospital at Navsari. As per record, they reached civil Hospital at Navsari at about 5-00 a.m. At that time, P.W.8 Dr. Ajaykumar Jankiprasad Sharma who was a Medical Officer was present on duty in the Civil Hospital at Navsari. As per evidence of Dr. Sharma, at 5-00 a.m. on 10/2/1995, Urmilaben and Govindbhai who had sustained burn injuries were brought by police to him along with a reference note of Medical Officer of Mengusi General Hospital, Bilimora. Dr. Sharma examined both the persons one by one. As per deposition of Dr. Sharma, Govindbhai told Dr. Sharma that he was burnt by his elder brother, while Urmilaben informed him that the elder brother of her husband had burnt her. They both also informed him that their hut was set on fire. As per evidence of Dr. Sharma, he immediately prepared the medical case papers wherein he noted down history given by deceased Govindbhai and Urmilaben. Dr. Sharma immediately started to give medical treatment to both the injured persons. Meanwhile, Dr. Sharma informed P.S.O. of Navsari Town Police Station by telephonic message at about 7-25 hrs. Thereupon, P.S.O. of Navsari Town Police Station made entry No.5/95 in the Station Diary at 7-25 a.m. on 10/2/1995. Immediately, thereafter P.S.O. of Navsari Town Police Station wrote a Yadi Ex.50 to the Executive Magistrate of Navsari. Simultaneously, P.S.O. of Navsari Town Police Station informed P.W.9 P.S.I. Henri Jullius Kin by giving him a Vardhi, as a result of which, P.W. 9 Henri immediately rushed to the Civil Hospital, Navsari and he recorded a complaint Ex.47 of injured Govindbhai Laxmanbhai in the Hospital at about 8-15 a.m. That complaint was sent to P.S.O. of Navsari Police Station for its registration. That complaint came to be registered for offences punishable under Secs. 307-114 of I.P.Code. As the offences took place within the jurisdiction of Gandevi Police Station, that complaint was sent to Gandevi Police Station where it was registered as CR.No. I 11/95 at 14-20 hrs. From record it appears that the Yadi Ex.50 was first taken to Dr. Sharma. Dr.Sharma put an endorsement in margin of the Yadi Ex.50 to the effect that the patient was conscious and could speak. That Yadi was received by P.W.9 Mohanbhai Kikabhai Mistry, Deputy Mamlatdar-cum-Executive Magistrate of Navsari at about 9-15 a.m. on 10/2/1995. He, by taking him with said Yadi Ex.50, rushed to the Civil Hospital, Navsari. He contacted the Doctor in the Hospital and collected information as to whether Urmilaben and Govindbhai were conscious or not. Doctor informed him that both the patients were conscious and their dying declarations could be recorded. Hence P.W.9 Mohanbhai who was the Executive Magistrate, first recorded dying declaration of Urmilaben Exh.51 during the period from 9-20 a.m.to 9-35 a.m. Thereafter, he recorded dying declaration of deceased Govindbhai Ex.52 during the period between 9-40 a.m. and 10-10 a.m. #. P.S.O. of Gandevi Police Station entrusted the investigation to P.W.10 P.S.I. Navinchandra Vitthalbhai Desai. He first went to the Civil Hospital, Navsari and recorded further statements of the complainant, Urmilaben and other witnesses. He thereafter went to village Sari Bujrang and drew a panchnama of scene of offence. He also drew a panchnama of damage caused to the property. During the treatment, complainant Govindbhai Laxmanbhai died at 4-10 a.m. on 12/2/1995. Therefore, the Investigating Officer drew an Inquest Panchnama Ex.17 during the period from 9-45 a.m. to 10-15 a.m. Thereafter, the Investigating Officer wrote a yadi to the learned J.M.F.C. Gandevi requesting him to add an offence punishable under Sec.302, I.P.Code in the FIR registered at CR.No.I 11/95. He further conducted investigation of the case and ultimately he arrested all the accused on 13/2/1995. He sent muddamal articles seized from the scene of offence along with forwarding letter Ex.55 to the Forensic Science Laboratory for analysis. On receipt of the report Ex.56 of Forensic Science Laboratory, he filed the chargesheet in the Court of the learned J.M.F.C., Gandevi on 3/5/1995. That chargesheet came to be registered as Criminal CaseNo.694 of 1995. Thereafter, on 3/11/1995, the learned J.M.F.C. Gandevi passed committal order under Sec.209, Cr.P.C. and committed the case to the Court of Sessions, Valsad at Navsari. On receipt of the papers along with muddamal articles, the learned Sessions Judge, Valsad at Navsari registered the case as Sessions Case No. 136 of 1995. #. The learned Judge of the trial Court framed charge Ex.9 on 18/12/1996. On recording plea of the accused, they have not pleaded guilty to the charge and claimed to be tried. Hence, the prosecution has examined following 11 witnesses to prove the guilt of the accused: (1) P.W. 1 Arvindbhai Jinabhai Patel (Panch Witness) at Ex.27. (2) P.W.2 Urmilaben Govindbhai Champaneria at ex.30 (victim and injured person). (3) P.W.3 Head Constable Valliuddin Usnuddin at Ex.33 (4) P.W. 4 Police Constable Ashok Rajaram at Ex34. (5) P.W.5 Dhansukhbhai Maganbhai (Panch Witness) at Ex.35. (6) P.W.6 Dr.Jagdishprasad Ramsing Gupta at Ex.37. (7) P.W.7 Dr. Dipakkumar Mohanlal Patel at Ex.39. (8) P.W.8 Dr.Ajaykumar Jankiprasad Sharma at Ex.40. (9) P.W.9 Henari Jullius Kin (P.S.I. of Navsari Police Station) at Ex.46. (10) P.W.9 (P.W.10) Mohanbhai Kikabhai Mistry (Executive Magistrate) Ex.49. (11) P.W.10 (P.W.11) Navinchandra Vitthalbhai Desai (P.S.I. Gandevi Police Station) at Ex.54. #. The prosecution has also produced following important documentary evidence along with other documents in support of its case: (1) Panchnama of scene of offence Ex.28. (2) Panchnama of assessment of damage caused to property Ex.29. (3) Copy of dying declaration of Urmilaben Govindbhai, got produced by accused at Ex.31. (4) Sketch with explanatory note of scene of offence and surrounding properties Ex.36. (5) Certificate of injuries sustained by accused No.1 Babubhai Laxmanbhai Ex.38. (6) A bunch of medical case papers of Urmilaben Govindbhai Ex.41. (7) A refer note of Medical Officer, Mangusi General Hospital, Bilimora issued to C.M.O. Civil Hospital, Navsari along with a bunch of medical case papers of deceased Govindbhai, Ex.42 collectively. (8) Post Mortem Notes Ex.43. (9) Certificate with regard to cause of death of deceased Govindbhai Ex.44. (10) Original complaint Ex.47. (11) Yadi of P.S.O. Navsari Town Police Station addressed to Executive Magistrate Ex.50. (12) Dying declaration of injured Urmilaben Ex.51 produced and proved by Executive Magistrate. (13) Dying declaration of deceased Govindbhai Ex.52. (14) Forwarding letter addressed to Forensic Science Laboratory Ex.55. (15) Report of Forensic Science Laboratory Ex.56. #. On evidence of prosecution being declared as closed, the learned Judge of the trial Court recorded further statements of each accused separately. Circumstances appearing against the accused were brought to the notice of and explained to each accused in their respective further statements recorded under Sec.313, Cr.P.C. ##. All the accused have mechanically denied the case of the prosecution. Still however, they have admitted following facts in their further statements: (1) Accused No.1 is an elder brother-in-law of Urmilaben and accused Nos. 2,3 and 4 are the son, wife and daughter-in-law of accused No.1. (2) Urmilaben was residing with her husband in their own house situated in village Sari-bujarang and their house was adjacent to house of the accused. (3) The house in which Urmilaben, her husband -deceased and accused were residing, was of the ownership of Laxmanbhai -father of the deceased and accused No.1. (4) Urmilaben and deceased had sustained bodily burn injuries but it is their defence that they sustained such injuries in the accident. (5) At about 2-00 a.m. in the early morning of 10/2/1995, witness Police Constable Ashokbhai in company of other police persons was on night petrolling duty and when they were passing near corner of "Teachers' Society", they saw that one hut had caught fire from its top portion, and therefore, that police persons halted their vehicle at that place. At that time, there was one bang and they heard cries of one woman and one male person for help, from inside the hut. Thereupon, they went near the gate of that hut and tried to open the doors of the hut but they found that one wire was wounded-up in front portion of the gate. They opened the wire and on opening the doors of the hut, first one lady came out from the hut and by following her, one male person who had sustained burn injuries came out from the hut. (6) It is their common defence that deceased and Urmilaben were keeping enimical relations with them (accused) and therefore, Urmilaben has given a false evidence. (7) Accused Nos. 1 and 3 have in their own defence stated in their further statements that they are residing in their own separate house and that they had no dispute whatsoever with deceased Govindbhai. They have also stated that their son Aswin and Anitaben (Aswinbhai's wife) are staying separately from them in Gayatri Society and Aswinbhai is carrying on his own business. (8) When accused No.1 was heard on point of quantum of sentence, he has stated "He is an aged old person having disease of laprocy. (9) Accused Nos. 2 and 4 have in their defence stated that they are residing separately from accused Nos. 1 and 3, in Gayatri Society since 1/5/1987 and that accused no.2 is doing his own business. (10) Accused have submitted their written arguments at ex.59. ##. After hearing the arguments of learned Advocates for both the parties and after analysing and appreciating evidence led by the prosecution, the learned Judge of the trial Court came to a conclusion that the deceased Govindbhai died culpable homicidal death and because of pouring petrol on the deceased Govindbhai and Urmilaben and by throwing on them an ignited match-stick by accused no.1, deceased Govindbhai sustained severe bodily burn injuries and as a direct result of these burn injuries, Govindbhai died and therefore, accused No. 1 has committed an offence punishable under Sec.302, I.P.Code. He has further come to a conclusion that because of aforesaid acts of accused No.1, Urmilaben sustained such severe bodily burn injuries which were in ordinlary course of nature sufficient to cause her death but because of timely treatment, she has survived, and therefore, accused No.1 has committed an offence punishable under Sec.307, I.P.Code. He has also come to a conclusion that because of aforesaid acts, the house and household articles of deceased and Urmilaben caught fire and in that fire, the house and household articles were heavily damaged and destroyed, and therefore, he has committed an offence punishable under Sec. 436, I.P.Code. By appreciating the evidence, he has come to a conclusion that accused Nos.2 to 4 have not abetted the accused No.1 in committing the aforesaid offences punishable under Secs. 302-307 and 436 of I.P.Code, and therefore, the learned Judge of the trial Court has, by rendering judgment Ex.60 dated 19/6/1997, convicted the accused No.1 and inflicted sentences as referred to in Para. 2 hereinabove. Simultaneously, by not holding accused Nos. 2 to 4 guilty for the offences for which they were charged, the learned Judge of the trial Court has acquitted the accused Nos. 2 to 4 of offences of abetment in committing the offences committed by accused No.1. ##. Being aggrieved against and dissatisfied with aforesaid judgment of conviction and sentence, accused No.1 has preferred Criminal Appeal No. 745 of 1997, while the State of Gujarat has preferred an appeal being Criminal Appeal No. 1137 of 1997 against accused Nos. 2 to 4. ##. We have heard Mr.P.M.Vyas, learned Advocate for the appellant (original accused No.1) in Criminal Appeal No. 745 of 1997 and Mr. D.R.Bhatt, learned Advocate for the respondents (original accused Nos. 2 to 4) in Criminal Appeal No. 1136 of 1997 and Ms. B.R.Gajjar, learned APP for the State in both the appeals in detail at length. ##. Mr.P.M.Vyas, learned Advocate for the appellant (original accused No.1) in Criminal Appeal No. 745 of 1997 has taken us through the oral as well as documentary evidence on record and the impugned judgment challenged in these appeals. Mr. Vyas, learned Advocate for the convict accused No.1 has argued that the learned judge of the trial Court has not appreciated the evidence in its proper and correct perspective manner and that he has come to a wrong conclusion, and therefore, the order of conviction passed against the accused No.1 is erroneous and bad in law. He has further argued that story advanced in the complaint is highly improbable and in view of probability factor with regard to nature of incident, the deposition of Urmilaben cannot be accepted as true and credit-worthy. He has further argued that the prosecution has changed the story from one stage to another by advancing the case that accused poured petrol on deceased and Urmilaben and lateron they have changed the story by saying that Kerosene was poured, and therefore, the case has become doubtful. He has further argued that looking to the facts and circumstances of the case, the dying declaration on which the learned Judge of the trial Court has placed reliance for convicting accused No.1, is far from truth and unreliable. It cannot be said to be genuine, reliable and trustworthy. He has further argued that in view of this, if the dying declarations are taken out from the evidence, then there is no evidence against the accused No.1 and therefore, the appeal preferred by accused No.1 deserves to be allowed and accused No.1 who is a patient of leprosy, be acquitted. ##. Mr. P.M.Vyas has placed reliance on following authorities in support of his submissions. They are: (1) Thanedarsing Vs. State of U.P. reported in 2002 SCC (Cri.) 153; (2) Kajal Sen and others Vs. State