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CR.A/1236/1999 6/ 6 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
APPEAL No. 1236 of 1999
For
Approval and Signature:
HONOURABLE
MR.JUSTICE A.L.DAVE
HONOURABLE
MR.JUSTICE BANKIM.N.MEHTA
=========================================
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 ?
=========================================
SUNIL
DEVISING RAJPUT
Versus
STATE
OF GUJARAT
=========================================
Appearance :
MR
RS PANJWANI for the Appellant
MR HH PARIKH, APP for the
Respondent
=========================================
CORAM
:
HONOURABLE
MR.JUSTICE A.L.DAVE
and
HONOURABLE
MR.JUSTICE BANKIM.N.MEHTA
Date
: 10/03/2010
ORAL
JUDGMENT
(Per
: HONOURABLE MR.JUSTICE BANKIM.N.MEHTA)
The
appellant convict has challenged the judgment and order of conviction
and sentence rendered by learned Additional Sessions Judge, Vadodara
on 16.10.1999 convicting him for the offences punishable under
sections 302 and 498-A of the IPC and sentencing him to undergo life
imprisonment for the offence under section 302 of the IPC and to
undergo RI for one year for the offence punishable under section
498-A of the IPC.
2. According
to the prosecution, the accused was married to deceased Bhanuben and
there was marital discord between them. It was alleged that on
21.8.1998 at about 8:00 in the morning, the accused poured kerosene
over Bhanuben and ignited the matchstick. On account of that, she
sustained severe burn injuries and succumbed to the injuries in the
Hospital.
3. On
the basis of the first information report lodged by deceased
Bhanuben, offence was registered and investigation was started.
During the course of investigation, dying declaration of Bhanuben was
recorded and various panchnamas were drawn and statements of the
witnesses were recorded. At the end of investigation, charge sheet
came to be filed against the accused for the aforesaid offences. As
the offence was triable by the Sessions Court, the case was committed
to the Sessions Court and it was registered as Sessions Case No.9 of
1999. The learned Additional Sessions Judge framed charge for the
aforesaid offences against the accused. The accused denied having
committed the offence and claimed to be tried. Therefore, the
prosecution adduced evidence. On completion of recording of
evidence, the incriminating circumstances appearing in the evidence
against the accused were explained to him. The accused in his
further statement recorded under section 313 of the Code of Criminal
Procedure, 1973, stated that he is innocent and he has three minor
children and there is no one to look after them. It was also stated
that at present his mother was keeping the children and she is aged
about 65 years and therefore, mercy should be shown. After hearing
the learned Additional Public Prosecutor and learned advocate for the
accused, the trial Court recorded that the prosecution has
successfully proved the charge levelled against the accused beyond
reasonable doubt and therefore, convicted him. Being aggrieved by
the said decision, the accused has preferred this appeal.
4. We
have heard learned advocate Mr. Panjwani for the appellant and
learned APP Mr. Parikh at length and in great detail. We have also
perused the impugned judgment and record and proceedings of the trial
Court.
5. Learned
advocate for the appellant has restricted his arguments and that he
does not dispute the incident, but the deceased committed suicide and
therefore, the appellant accused could not have been convicted for
the murder. He has also submitted that the dying declaration suffers
from infirmity as the doctor has not made endorsement on the dying
declaration with regard to state of mind of the declarant. He has
relied upon the decision of Kanti Lal v. State of Rajasthan with
Arvind Kumar v. State of Rajasthan reported in 2009(2) GLH 688. He
has also submitted that the dying declaration and the FIR were
allegedly recorded at the same time which could not have been done
and therefore, the learned trial Judge committed an error in relying
upon both these documents and therefore, the impugned judgment is
required to be set aside.
6. Per
contra, learned APP has submitted that the dying declaration is
trustworthy, cogent and reliable as the doctor has made endorsement
with regard to state of mind of the deceased on the yadi sent by the
authority to the Executive Magistrate and it is not true that the FIR
and the dying declaration were recorded at the same time. He has
also submitted that the evidence indicates that the deceased and the
accused were married before about 3 and ? years and there is nothing
on record to indicate that the injuries were suicidal and therefore,
no interference is warranted in the impugned judgment and therefore,
the appeal deserves to be dismissed.
7. The
evidence of witness Dr. Kishor Pramodray Desai (Exh-11) who performed
the postmortem, indicates that the deceased had burn injuries on her
entire body. According to the doctor, said burn injuries were not
possible on account of suicide. The postmortem report (Exh-12)
indicates that the cause of death was shock on account of burns.
This evidence clearly indicates that the deceased did not commit
suicide and it was a homicidal death, therefore, the submission that
the deceased committed suicide, cannot be accepted.
8. The
prosecution examined Executive Magistrate PW 4 Lataben Rohitchandra
at Exh-24. The witness recorded dying declaration of deceased
Bhanuben. The evidence of this witness indicates that on receipt of
yadi Exh-25, she went to the Hospital, inquired from the doctor about
the health of the patient and was informed by the doctor that the
patient was conscious and in a position to give her dying
declaration. It also indicates that the opinion was obtained on yadi
Exh-25. The evidence of this witness further indicates that the
deceased was conscious throughout recording of the dying declaration.
The witness has been cross-examined by the accused. The prosecution
produced yadi given to the Executive Magistrate at Exh-25. The
endorsement made by the doctor indicates that the patient is
conscious and oriented. The endorsement was made at 12:00 p.m. The
dying declaration is produced at Exh-26. It is recorded between
12:05 and 12:35 hrs. It was tried to suggest that there is
discrepancy in the timing between the yadi and dying declaration and
therefore, the dying declaration could not have been relied upon, in
our view, the difference is of only about five minutes. There may be
difference in timings of watches of the two different persons.
Therefore, this difference of five minutes is insignificant and on
that count, we cannot brush aside the dying declaration.
9. Before
recording of the dying declaration, endorsement of the doctor with
regard to state of mind of the deceased was obtained on the yadi.
Therefore, it cannot be said that no endorsement in that regard was
obtained on the dying declaration and therefore, this submission
cannot be accepted. The decision of Kantilal (supra) relied upon by
the appellant is not applicable, as there is endorsement of Doctor on
yadi Exh-25.
10. The
deceased also lodged FIR with regard to the incident. The
prosecution has produced the FIR at Exh-34. It is alleged in the FIR
that the accused was responsible for the burn injuries. The
prosecution examined PW 7 Babubhai Ishwarbhai Patel (Exh-33), who
recorded the FIR. The evidence of this witness indicates that he
went to the Hospital at 11:00 a.m. and recorded the FIR, Exh-34.
This evidence clearly indicates that before recording the dying
declaration between 12:10 and 12:35 hrs, the FIR was already lodged,
therefore, the contention that the dying declaration and the FIR were
lodged at the same time cannot be accepted. It is also submitted by
the learned advocate for the appellant that the injuries were found
on the accused, but the prosecution has not explained the injuries.
In our considered view, in view of the fact that the accused has
taken an absolutely false defence and denied having his involvement
in the incident, prosecution was not required to explain the injuries
and therefore, this submission also cannot be accepted.
11. In
view of above evidence, it clearly emerges that the deceased
sustained homicidal burn injuries and the accused was responsible for
such burn injuries. Therefore, the learned trial Judge was justified
in recording conviction of the accused under section 302 of the IPC.
12. As
regards the conviction under section 498-A of the IPC, there is no
cogent, reliable and convincing evidence to connect the accused with
the offence. Therefore, the learned trial Judge committed error in
convicting the accused for the offence under section 498-A of the
IPC. Therefore, the conviction thereunder is required to be set
aside.
12. In
view of above, the appeal partly succeeds. The judgment and order of
conviction and sentence rendered by learned Additional Sessions
Judge, Vadodara on 16.10.1999 in Sessions Case No.9 of 1999 for the
offence under section 302 of the IPC is sustained and conviction
under section 498-A of the IPC is set aside.
(A.L.
DAVE, J.)
(BANKIM.N.MEHTA,
J.)
shekhar/-
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