CR.A/238/1999 1/37 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 238 of 1999 For Approval and Signature: HONOURABLE MR.JUSTICE R.P.DHOLAKIA : HONOURABLE MR.JUSTICE KS JHAVERI : ========================================================= 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 ? ========================================================= BHANUBHAI SHANABHAI ZALA - Appellant(s) Versus STATE OF GUJARAT & 1 - Opponent(s) ========================================================= Appearance : MR GM AMIN for Appellant(s) : 1, MR HL JANI APP for Opponent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE R.P.DHOLAKIA and HONOURABLE MR.JUSTICE KS JHAVERI Date : 05/05/2008 CR.A/238/1999 2/37 JUDGMENT CAV JUDGMENT (Per : HONOURABLE MR.JUSTICE R.P.DHOLAKIA) 1.0 This Appeal is directed against the judgment and order dated 05.02.1999 passed by the learned Addl. Sessions Judge, Kheda at Nadiad in Sessions Case No. 142 of 1998 whereby, the appellant, original accused, was convicted for the offences punishable u/s. 498-A & 302 of the Indian Penal Code [for short, “the IPC”]. For conviction u/s. 498-A IPC, the appellant was sentenced to undergo rigorous imprisonment for three years with fine of Rs.5000/- and in default of payment of fine, simple imprisonment for a further period of six months; while for conviction u/s. 302 IPC, the appellant was sentenced to undergo rigorous imprisonment for life with fine of Rs.5000/- and in default of payment of fine, simple imprisonment for a further period of two years. Both the sentences were ordered to run concurrently. CR.A/238/1999 3/37 JUDGMENT 2.0 The facts in brief, as emerging from the record, are as under; 2.1 On 06.03.1998, at around 1100 hrs., while Bhuriben, the wife of the appellant, original accused, was in her house, the appellant came in a drunken condition and picked up a quarrel with Bhuriben. During that process, the appellant, original accused, closed the doors of the house from the inside, poured kerosene on Bhuriben and thereafter, set her ablaze. As a result thereof, victim – Bhuriben sustained severe burn injuries of the 1st, 2nd & 3rd degrees. During the interregnum period, the appellant, original accused, fled the scene of offence. 2.2 On hearing the shouts of the victim, a crowd gathered at the scene of offence. The relatives of the appellant, original accused, took the victim to a private Hospital named “Varsha Surgical Hospital”, situated in Odhav CR.A/238/1999 4/37 JUDGMENT area of Ahmedabad City. In the said Hospital, the victim was given necessary medical treatment. Here, it is pertinent to note that though it was a medico-legal case, neither the relatives of the appellant, original accused, nor the Doctor concerned had informed about the said incident to the police authority. When the father of the victim came to know about the said incident through his nephew, he and his wife came to the Hospital where the victim was admitted. At that time, the victim was totally unconscious. 2.3 On the next day, i.e. 07.03.1998, when the victim became conscious, her parents inquired from her regarding the said incident. At that time, the victim informed them that on 06.03.1998, at around 1100 hrs., the appellant, original accused, came to the house in a drunken condition and picked up a quarrel with her and during that process, he closed the doors of the house, sprinkled kerosene on her and thereafter, set her ablaze. On hearing the same, the father CR.A/238/1999 5/37 JUDGMENT of the victim decided to file a complaint as it was a serious offence. On the next day, at around 1000 hrs., the Doctor of said “Varsha Surgical Hospital” gave a telephonic intimation regarding the admission of the victim to his Hospital to Odhav Police Station, which was noted down by the P.S.O., who was on duty at the relevant point of time, in the Station Register. The P.S.O., in turn, handed over a 'yaadi' to P.S.I. - Ghanshyambhai Tribhovanbhai Pandya for the purpose of carrying out necessary investigation. The said P.S.I. went to “Varsha Surgical Hospital” and made necessary preliminary inquiry. He noted down the complaint given by the father of the victim and also sent a 'yaadi' to the concerned Executive Magistrate for recording the dying declaration of the victim. As the incident had taken place outside the jurisdiction of Odhav Police Station, the complaint was registered as C. R. No.'0' of 1998 of Odhav Police Station u/s. 307 IPC. CR.A/238/1999 6/37 JUDGMENT 2.4 On the same day, i.e. on 08.03.1998, between 1210 hrs. - 1230 hrs., the dying declaration of the victim was recorded by the Executive Magistrate after following due procedure. The complaint given by the father of the victim was sent to Kathlal Police Station for the purpose of registering the offence, as the alleged offence had taken place within the jurisdiction of Kathlal Police Station, and ultimately, it came to be registered as Kathlal Police Station I – C. R. No. 40 of 1998 u/s. 307 IPC. Investigation into the alleged offence was handed over to P.S.I. - Harendrasinh Kiritsinh Rana of Kathlal Police Station. In the meanwhile, as the condition of the victim had started to deteriorate, she was shifted to L. G. Hospital, Ahmedabad at around 1400 hrs. on 08.03.1998. At L.G. Hospital, the victim was given necessary medical treatment. 2.5 On 09.03.1998, as the condition of the victim had improved, the further statement of the CR.A/238/1999 7/37 JUDGMENT victim was recorded by the P.S.I. of Kathlal Police Station, after following due procedure. Thereafter, the Investigating Officer went to the scene of offence and made necessary inquiry. A ‘panchnama’ with respect to the place of incident was prepared in the presence of ‘panchas’. Necessary 'muddamal' articles were collected. As cogent evidence was found against the appellant, he was arrested on 09.03.1998. Arrest ‘panchnama’ was prepared in the presence of ‘panchas’ and thereafter, the appellant was sent to judicial custody. 2.6 On 16.03.1998 the victim succumbed to the injuries. Inquest ‘panchnama’ was prepared in the presence of 'panchas'. ‘Marnottar’ form was filled up and necessary arrangements were made for sending the dead body for performing post- mortem. A note was sent to the concerned Magistrate for the purpose of adding offence u/s. 302 IPC in the complaint. Further investigation was carried out and statements of several CR.A/238/1999 8/37 JUDGMENT witnesses were recorded. The ‘muddamal’ articles so collected were sent to F.S.L. for examination along with a forwarding letter. On receipt of the F.S.L. Report, Post-mortem Report and other Reports, they were kept in the investigation file. 2.7 On completion of investigation, charge- sheet was filed before the Court of learned J.M.F.C., Kapadvanj. As the case was exclusively triable by the Court of Sessions, the learned Magistrate committed the case to the District & Sessions Court, Kheda at Nadiad and it was numbered as Sessions Case No. 142 of 1998. The case was then transferred to the learned Addl. Sessions Judge for disposal on merits. On production of the appellant, original accused, the learned Addl. Sessions Judge framed the charge and as the appellant, original accused, pleaded not guilty to the charge leveled against him, trial was conducted. CR.A/238/1999 9/37 JUDGMENT 3.0 In order to prove the guilt of the appellant, original accused, the prosecution has examined in all eleven witnesses, namely, PW – 1 Pramod Hajarilal Jain at Exhibit – 10 is the Executive Magistrate who recorded the dying declaration of the victim, PW – 2 Dr. Yogendra Dashratlal Shah at Exhibit – 13 is the Doctor in whose Hospital the victim was given treatment for the period from 06.03.1998 – 08.03.1998, PW – 3 Bhikhaji Mangaji at Exhibit – 19 is the father of the victim as also the complainant in this case, PW – 4 Ghanshyambhai Tribhovanbhai Pandya at Exhibit – 22 is the P.S.I. of Odhav Police Station who had noted down the complaint on 08.03.1998, PW – 5 Rajeshkumar Bhikhabhai Zala at Exhibit – 24 is a 'panch' witness who has been declared 'hostile' by the Court below, PW – 6 Ranjitsinh Virsinh Gohel at Exhibit – 28 is the Executive Magistrate who performed the inquest 'panchnama', PW – 7 Dr. Manish Tulsidas Kapadia at Exhibit – 32 is the Medical Officer who performed the Post-mortem of the deceased, PW – 8 CR.A/238/1999 10/37 JUDGMENT Dr. Dharmila Gunwantbhai Shah at Exhibit – 34 is the Medical Officer who was In-charge R.M.O. at L. G. Hospital, PW – 9 Harendrasinh Kiritbhai Rana at Exhibit – 36 is the Investigating Officer, PW – 10 Chatrasinh Mathurbhai at Exhibit – 41 is the P.S.O. of Kathlal Police Station and PW – 11 Dr. Madhu Vitthaldas at Exhibit – 43 is the Medical Officer of L. G. Hospital who had also given necessary treatment to the victim at the relevant point of time. 3.1 The prosecution also relied upon several documentary evidence, more particularly, the complaint at Exhibit – 20, the statement of the victim recorded by the police at Exhibit – 37, the Certificates issued by Varsha Surgical Hospital at Exhibits – 14 & 15, the Post-mortem Report at Exhibit – 33, the telephone 'wardhi' recorded by PW – 2 at Exhibit – 23, the forwarding letter to the F.S.L. at Exhibit – 38, the Receipt of the F.S.L. at Exhibit – 39, the F.S.L. Report at Exhibit – 40, the dying CR.A/238/1999 11/37 JUDGMENT declaration at Exhibit – 12, the 'yaadi' to record the dying declaration at Exhibit – 11, the School Leaving Certificate at Exhibit – 21 and the medical case-papers of the victim at Exhibit – 35. 3.2 On submission of the closing purshis, the further statement of the appellant, original accused, u/s. 313 of the Cr.P.C. was recorded. After hearing learned counsel for the respective parties, the learned Addl. Sessions Judge passed the impugned judgment whereby, the appellant, original accused, was convicted u/s. 498-A and 302 IPC. While delivering the said judgment, the Court below also issued Notice u/s. 344 Cr.P.C. against PW – 2 in the said Sessions Case [i.e. the appellant of Criminal Appeal No. 240/1999] to show cause as to why he should not be punished for giving / fabricating false evidence in the proceedings of the said case. Being aggrieved by the impugned judgment and order, the appellant, original accused, has approached this Court by CR.A/238/1999 12/37 JUDGMENT way of this Appeal. 4.0 Mr. G. M. Amin, learned Advocate for the appellant, original accused, has submitted that from the evidence on record, it is established beyond doubt that the victim died an accidental death. He has submitted that even if the case of the prosecution is believed to be true, there is no eye-witness to the alleged incident in question. Hence, the Court below has committed serious error in convicting the appellant, original accused, for the alleged offence. 4.1 Learned Advocate has contented that the complaint at Exhibit – 20 is an after-thought filed only with a view to falsely implicate the appellant, original accused, in the alleged offence since the same has been filed after a long delay. He has submitted that the said delay caused in filing the complaint has also not been explained by the prosecution. CR.A/238/1999 13/37 JUDGMENT 4.2 Learned Advocate has further contented that the dying declaration of the victim at Exhibit – 12 cannot be said to be reliable and trustworthy inasmuch as it does not get support from any other oral or documentary evidence on record, more particularly, the police 'yaadi' sent to the Executive Magistrate at Exhibit – 11 and the entry made by the P.S.O. of Odhav Police Station in the Station Diary at Exhibit – 23, which are important pieces of evidence. Therefore, the dying declaration requires sufficient corroboration. He has, therefore, submitted that looking to the entire oral as well as documentary evidence available on record, this is a fit case wherein the appellant, original accused, deserves to be acquitted from the alleged offence by granting him the benefit of doubt. 5.0 Mr. H. L. Jani, learned APP appearing on behalf of the respondent – State, has submitted that the oral evidence on record in the form of CR.A/238/1999 14/37 JUDGMENT deposition of the complainant – PW–3 Bhikhaji Mangaji at Exhibit – 19 and the documentary evidence on record in the form of dying declaration at Exhibit – 12 and the further statement of the victim at Exhibit - 37, establish beyond doubt the guilt of the appellant, original accused. Hence, the Court below was completely justified in convicting the appellant, original accused, for the alleged offence. 6.0 We have heard learned counsel for the respective parties and have perused the entire oral as well as documentary evidence available on record. The fact that the victim died as a result of the burn injuries is not disputed by the learned Advocate for the appellant, original accused. Even otherwise, the said aspect is established from the medical evidence on record in the form of Post-mortem Report at Exhibit – 33, the Inquest 'panchnama' at Exhibit - 30 and the oral evidence of the Doctor [PW – 7 Dr. CR.A/238/1999 15/37 JUDGMENT Manish Tulsidas Kapadia at Exhibit – 32] who has performed the post-mortem. The Court below has discussed the said aspect in detail in the impugned judgment. We are in complete agreement with the reasonings given by the Court below qua the same and therefore, do not find it necessary to discuss the same in detail in this judgment and accordingly, hold that the victim died a homicidal death. 7.0 The prosecution has examined the father of the victim – Bhikhaji Mangaji, who is also the complainant, as PW – 3 at Exhibit – 19. In his deposition, he has stated that at about ten days prior to the date of the alleged incident, the victim had come to his house and informed him that the appellant had been extending mental as well as physical torture to her and that the appellant used to quarrel with her after consuming liquor. Some days later, the appellant came to his house along with his relatives and convinced him that henceforth he would not CR.A/238/1999 16/37 JUDGMENT consume liquor and that he would also not physically and mentally harass the victim. On account of the said assurance given by the appellant and his relatives, he sent the victim to her matrimonial house. He has further deposed that on the date of the alleged incident, his nephew informed him that the victim has sustained burn injuries and that she has been admitted in a Hospital at Ahmedabad. Therefore, he along with his wife and elder son went to the said Hospital. When they reached the Hospital at around 2345 hrs., they noticed that the victim had sustained burn injuries on major part of her body. On the next day, when the victim became conscious, he inquired from her about the said incident. At that time, the victim informed him that the appellant, after consuming liquor, had quarreled with her and thereafter, set her ablaze after pouring kerosene on her. He has further deposed that after making necessary inquiry from the victim, he filed a complaint before Odhav Police Station, which was registered as Odhav Police CR.A/238/1999 17/37 JUDGMENT Station I - C. R. No.'0' of 1998. 7.1 This witness has been cross-examined at length before the Court below. From his cross- examination, it has come out that the victim had sustained the burn injuries not on account of the alleged malfunction of the cooking-stove kept in her house, as it has come on record that the said stove was found to be in a perfectly good condition when the complainant had visited her house on 07.03.1998. It has also come out that during the entire period of hospitalization of the victim and until her death, the appellant had not visited her. Nothing contrary has come out from his cross-examination, which may lead us to believe the evidence led by this witness to be untrue or unreliable. 8.0 The evidence led by the complainant at Exhibit – 19 gets support from the complaint at Exhibit – 20 filed on 08.03.1998. Nothing contradictory has come on record and the CR.A/238/1999 18/37 JUDGMENT averments made therein, wholly support the say of the complainant before the Court below at Exhibit – 19 in toto. It is true that there is a delay of one day in filing the complaint. It is a matter of record that the victim was admitted in the Hospital on 06.03.1998 at around 1730 hrs. and that when the complainant and his other family members reached the Hospital in question, the victim was unconscious. The said fact is also established from the evidence of PW – 2 Yogendra Dashrathlal Shah at Exhibit – 13, in whose Hospital the victim was admitted, at the first place, for necessary treatment. Thereafter, on 07.03.1998, when the victim became conscious, she narrated the history of the incident to the complainant in detail and, on the next day, i.e. on 08.03.1998, the complaint was filed. 8.1 Looking to the facts and circumstances of the case, we do not find that there was any unreasonable delay in filing the complainant which may create doubts in our minds about its CR.A/238/1999 19/37 JUDGMENT genuineness. Hence, the contention raised by the learned Advocate for the appellant that the complaint has been filed after a long delay is devoid of any merits and is, therefore, rejected. 9.0 The other important evidence is of PW – 4 Ghanshyambhai Tribhovanbhai Pandya at Exhibit – 22, who was serving as a P.S.I., Odhav Police Station, at the relevant point of time. In his deposition, he has categorically stated that on 08.03.1998, while he was discharging his duties, he received a 'yaadi' from the P.S.O. regarding the admission of the victim at “Varsha Surgical Hospital”. He has further deposed that in pursuance of the said 'yaadi', he went to “Varsha Surgical Hospital” and inquired about the condition of the victim from the concerned Doctor. On inquiry, he realized that the dying declaration of the victim was required to be recorded. Therefore, he prepared 'yaadi' [Exhibit – 11], obtained the endorsement of the concerned Doctor regarding the condition of the victim on CR.A/238/1999 20/37 JUDGMENT it at about 1100 hrs. and thereafter, sent the same to the Executive Magistrate for the purpose of recording the dying declaration. In the meantime, he also recorded the complaint of the father of the victim. Some time later, the Executive Magistrate arrived at “Varsha Surgical Hospital” and recorded the dying declaration of the victim. Thus, from the evidence of this witness, i.e. PW – 4 at Exhibit – 22, it has come out that he had prepared the 'yaadi' [Exhibit – 11] for the purpose of calling the Executive Magistrate for recording the dying declaration of the victim and that on the said 'yaadi' [Exhibit – 11] he had also obtained the endorsement of the concerned Doctor regarding the condition of the victim along with the timing. 10.0 Another important evidence which supports the case of the prosecution is the dying declaration of the victim at Exhibit – 12. The said dying declaration has been recorded by the Executive Magistrate – Pramod Hajarilal Jain [PW CR.A/238/1999 21/37 JUDGMENT – 1 at Exhibit – 10] on 08.03.1998. In the said dying declaration, more particularly, in reply to Question No. 13, the victim has stated as under; “Ten days ago, I went to my parental house on account of disconcert. Thereafter, my husband came to pick me up and assured me that henceforth he would not consume liquor. On the said assurance, he brought me back to the matrimonial home. Yesterday, my husband came home in a drunken condition. When I reminded him about not consuming liquor, a quarrel took place and the door was closed. Thereafter, my husband poured kerosene on me from a black-handled Can and set me ablaze. In this way, he tried to kill me.” 10.1 From the above, it is evident that the victim has stated in unequivocal terms the entire incident in detail along with the role played by the appellant. It may be noted that the dying declaration of the victim has been recorded after following due procedure of law. Thus, it is established from the record that before recording the dying declaration, the Executive Magistrate has inquired from the concerned Doctor as to whether the victim is in a condition to give such CR.A/238/1999 22/37 JUDGMENT declaration or not. The said Doctor has certified that the victim was in good mental condition to give such declaration at the relevant point of time. Thus, only after ascertaining the medical condition of the victim from the concerned Doctor, the dying declaration was recorded. The victim has clearly narrated the history as to how she had sustained the burn injuries along with the role played by the appellant. 10.2 Here, it is pertinent to note that on the 'yaadi' [Exhibit – 11], the time which has been noted by the concerned Doctor is “12.10 pm”. Thus, it is a matter of record that on the said 'yaadi' [Exhibit – 11], there are two endorsements of the concerned Doctor, viz. (i) At about 11.00 am when the P.S.I. [PW – 4 at Exhibit – 22] had obtained an endorsement on it regarding the condition of the victim and (ii) At about 12.10 pm when the Executive Magistrate arrived at “Varsha Surgical Hospital” and inquired from the concerned Doctor regarding the condition of the CR.A/238/1999 23/37 JUDGMENT victim and made an endorsement to that effect on it. The said fact has also been deposed by the Executive Magistrate in his deposition as PW – 1 at Exhibit – 10. Over and above, it is also established from the evidence of the Executive Magistrate that before recording the dying declaration, he had also inquired from the victim regarding her ability to give the dying declaration and only after getting a satisfactory reply, he has recorded the same. 10.3 The Executive Magistrate [PW – 1 at Exhibit – 10] has been cross-examined at length before the Court below. However, nothing contrary has come out from his cross-examination which may lead us to believe the evidence led by this witness to be untrue or unreliable. We have carefully scrutinized the dying declaration and are of the considered opinion that the same is not the result of any tutoring, prompting or imagination. Therefore, we believe that the dying declaration is completely reliable and CR.A/238/1999 24/37 JUDGMENT trustworthy. 11.0 The dying declaration of the victim at Exhibit – 12 gets support from the further statement of the victim at Exhibit – 37 recorded by the P.S.I. of Kathlal Police Station on 09.03.1998 at L. G. Hospital, which can also be treated as a dying declaration. In the said statement also, the victim has categorically narrated about the entire incident in detail along with the role played by the appellant. Thus, the dying declaration at Exhibit – 12 gets support from the further statement of the victim at Exhibit – 37 and also the oral evidence of the complainant – Bhikhaji Mangaji [PW – 3 at Exhibit – 19] and PW – 9 Harendrasinh Kiritsinh Rana at Exhibit – 6. 11.1 Thus, on three different occasions, i.e. firstly, before the complainant, secondly, in the form of dying declaration at Exhibit – 12 and thirdly, in the form of further statement at CR.A/238/1999 25/37 JUDGMENT Exhibit – 37, the victim has stated about the entire incident in detail. On all the aforesaid three occasions, the victim has categorically stated about the entire incident along with the role played by the appellant. They are consistent and support each other on all material aspects. 12.0 At this juncture, it would be relevant