State Of Gujarat vs Jayrajbhai Punjabhai Varu

2) Brief facts:

(b) On 10.03.2003, Rekhaben was admitted to the Government Hospital, Amreli with 90 per cent burn injuries. A First Information Report (FIR) being No. 7/03 got registered under Section 307 of the Indian Penal Code, 1860 (in short ‘the IPC’) wherein she stated that on 10.03.2003, at about 5 o’clock in the morning, when all other family members were sleeping in the house, an unknown person came near her and told her that he had come to take her. By saying so, he took her into the kitchen, poured kerosene on her and by lighting the matchstick set her on fire and went away from the place and, consequently, she started burning in flames. She further gave a statement that the unknown person was an outsider who was wearing white clothes. On hearing her cries, other family members also woke up and admitted her in the hospital at Amreli. It may be mentioned here that the above said FIR was registered on the basis of the statement given by the deceased herself on 10.03.2003, at about 7:30 a.m., in the hospital to Shri Bhikhu Karsanbhai, P.S.O., Amreli City which was treated as a complaint. In the said statement, the thumb impression of Rekhaben was identified by Vala Jaskubhai Suragbhai – the father of the deceased.

(c) On the very same day, at 8:25 a.m., she made a statement before the Executive Magistrate, Amreli and narrated the whole incident. In the afternoon, Rekhaben succumbed to her injuries. On the basis of the statement given by the deceased, Jayrajbhai Punjabhai Varu-the respondent herein, Punjabhai Lakhabhai Varu-father-in-law, Manuben Punjabhai-mother-in- law and Ramjuben Punjabhai-sister-in-law were arrayed as accused and a chargesheet was filed under Sections 302, 201 and 34 of the IPC and the case was committed to the Court of Sessions and numbered as Sessions Case No. 20/2003.

(d) The Sessions Judge, Amreli, vide order dated 30.06.2003, convicted the husband of the deceased under Section 302 of the IPC and sentenced him to suffer rigorous imprisonment for life while acquitting the other accused persons.

7) It is relevant to point out here that in both the statements mentioned above, the deceased has not named her husband or his family members. Though when a specific question was put to her that what exactly happened on that night, she narrated that on 10.03.2003, at about 5 o’clock in the morning, when all other family members were sleeping in the house, an unknown person came near her and took her into the kitchen. She further narrated that he poured kerosene on her and set her on fire and went away from the place. She further gave a statement that the unknown person was an outsider who was wearing white clothes. On hearing her cries, other family members also woke up and admitted her in the hospital at Amreli. There is no denying the fact that the deceased was in her matrimonial home at the time of the incident and all other family members were also present in the house at the relevant time. In both the dying declarations recorded by two independent witnesses after following the due process of law, she gave a statement that the person was unknown and there was no involvement of her in-laws or husband. Both the statements are consistent and there is no contradiction as to the role of the respondent herein. From a perusal of the statements made before the Executive Magistrate as well as the police officer, it becomes very clear that there was no involvement of the respondent herein in the commission of offence.

There is no presence of police at the time when above deposition is recorded.

11) The court has to weigh all the attendant circumstances and come to the independent finding whether the dying declaration was properly recorded and whether it was voluntary and truthful. Once the court is convinced that the dying declaration is so recorded, it may be acted upon and can be made a basis of conviction. The courts must bear in mind that each criminal trial is an individual aspect. It may differ from the other trials in some or the other respect and, therefore, a mechanical approach to the law of dying declaration has to be shunned.

13) The burden of proof in criminal law is beyond all reasonable doubt. The prosecution has to prove the guilt of the accused beyond all reasonable doubt and it is also the rule of justice in criminal law that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other towards his innocence, the view which is favourable to the accused should be adopted.

14) After considering the evidence and the judgments of the courts below, we are of the opinion that the evidence available on record and the sole evidence of the father of the deceased as compared to the dying declaration do not inspire confidence in the mind of this Court to make it the basis for the conviction of the respondent-accused. Hence, the appeal fails and is accordingly dismissed.

JULY 11, 2016.