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CR.A/276/2005 19/ 19 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
APPEAL No. 276 of 2005
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 ?
=========================================================
HARIJAN
CHAMAR BECHARJIBHAI RAMJIBHAI & Anr.
Versus
STATE
OF GUJARAT
=========================================================
Appearance
:
MR
BM MANGUKIYA for
Appellants.
MR. M.R.MENGDEY, ADDL.PUBLIC PROSECUTOR for the
State.
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE A.L.DAVE
and
HONOURABLE
MR.JUSTICE BANKIM.N.MEHTA
Date
: 18/03/2010
ORAL
JUDGMENT
(Per
: HONOURABLE MR.JUSTICE A.L.DAVE)
The
appellants were accused in Sessions Case No.70/2000 decided by the
Sessions Court, Bhavnagar, on 6.1.2005. They were charged with
offences punishable under Section 302 read with Section 114 of the
Indian Penal Code [ IPC for short] and Section 498-A read with
Section 114 of IPC, and came to be convicted for the said offences.
They were sentenced to imprisonment for life, with a fine of Rs.
500/- each, in default to undergo S.I for 30 days, for the offence of
murder of Hansaben, wife of appellant No.1. For the offence
punishable under Section 498-A IPC, they were sentenced to
imprisonment for a period of three years with a fine of Rs.100/-
each, in default to undergo imprisonment for 15 days. Both the
sentences were ordered to run concurrently and benefit of set off was
given to the appellants by judgment and order dated 6.1.2005 impugned
herein.
2. The
brief facts of the prosecution case are that appellant No.1,
Becharbhai, was married to deceased Hansa about 10 years prior to the
incident, which occurred on 22.1.2000. The allegation was that
appellant No.2, mother of appellant No.1 and mother-in-law of
deceased Hansaben, used to cause harassment to the deceased on the
ground of household work, and appellant No.1 used to lend support to
her.
2.1 As
per the prosecution case, on 22.1.2000 at about 4.00 P.M., appellant
No.2 poured kerosene on the deceased while she was preparing tea and
appellant No.1 ignited the deceased. The deceased suffered extensive
burns and ultimately succumbed to the same. The deceased was taken to
hospital by appellant No.1 with the help of others and was given
treatment. As it was a medico-legal case, police was informed.
Police arrived at the hospital and intimated Executive Magistrate for
recording dying declaration. The police also recorded F.I.R. On the
basis of the FIR offence was registered and was investigated.
Ultimately, the police having found sufficient material to connect
the appellants with the crime, filed charge sheet against the
appellants in the Court of learned J.M.F.C. Shihor, who, in turn,
committed the case to the Court of Sessions, Bhavnagar, where
Sessions Case No.70/2000 came to be registered.
3. The
trial Court framed charges against both the appellants/accused at
Exh.6 to which they both pleaded not guilty and claimed to be tried.
3.1 The
Sessions Court, after considering the evidence, found that the
charges levelled against the appellants were proved and, therefore,
convicted both of them for the offences punishable under Section 302
as well as Section 498-A IPC. Hence, this appeal by the convicts.
4. Heard
learned advocate Mr.B.M.Mangukiya for the appellants and learned
A.P.P. Mr.Mengdey for the State, at length and in great detail.
5. Learned
advocate Mr. Mangukiya, appearing for the appellants, submitted that
the trial Court has convicted both the appellants on the basis of two
dying declarations, one in the form of the FIR and the other before
the Executive Magistrate. There is no other evidence to implicate the
appellants. According to Mr.Mangukiya, neither of the dying
declarations would inspire confidence of the Court. According to
him, if the dying declaration before the Executive Magistrate
(Exh.15) is seen, there are interpolations in the dying declaration
regarding timing and even the language which is purported to have
been used by the deceased. He submitted that if the evidence of the
Investigating Officer is seen, he has admitted that he filed a wrong
charge sheet. Mr.Mangukiya submitted that the Doctor has, in terms,
stated that the burn injuries appear to be suicidal in nature and
accidental burns were not possible. He submitted that the trial Court
has overlooked the fact that the appellants themselves took the
victim to the hospital. It was a case of either suicide or accident,
but not homicide, in any case. Mr.Mangukiya submitted that the
documents would go to show that initially accidental death was
registered, which was then converted into a murder. He then
submitted that all these factors having not been considered by the
trial Court, the appeal may be allowed and the conviction may be set
aside.
6. Learned
A.P.P. Mr.Mengdey has opposed this appeal. According to him, there
are some over-writings in the Time Column of the dying declaration
before the Executive Magistrate (Exh.15), but they are genuine
mistakes, as can be seen from other contemporaneous documents. He
submitted that over-writings or interpolations would certainly raise
a doubt, but the doubt has to be a reasonable one and here that
element of doubt being reasonable is absent. He submitted that
conjoint reading of other contemporaneous record rules out the
possibility of tempering. Mr. Mengdey submitted that there are two
dying declarations recorded by independent persons, who have no axe
to grind against the appellants. No animosity, grudge or grievance is
alleged either against the Executive Magistrate or against the Police
Officer, who recorded the dying declarations. Mr.Mengdey submitted
that it is true that the Doctor has opined that the burn injuries
appear to be suicidal in nature, but that is only an opinion of the
doctor and it would not override or abrogate the evidence in the form
of dying declaration recorded by the competent and independent
government officials, who have no interest in either of the parties.
The dying declarations are consistent and clearly implicate the
appellants in the offences with which they were charged. Mr.Mengdey,
therefore, submitted that the appeal may be dismissed.
7. We
have examined the record and proceedings of the case in the context
of rival sides submissions.
8. Mr.Mangukiya
is right when he says that the prosecution case depends mainly on the
dying declarations of the deceased in the form of FIR and one before
the Executive Magistrate. It is also revealed from the record that
relatives of the deceased have not supported the prosecution case.
These pieces of evidence, therefore, will have to be examined very
carefully.
8.1
The dying declaration (Exh.15) was recorded by PW.1 Hasmukhrai
Shantilal Trivedi, Executive Magistrate, examined at Exh.13. In his
evidence, he has stated that he received Yadi (Exh.14) and had put
his initials in the margin of Yadi to acknowledge the receipt
thereof. He thereafter went to Sir T. Hospital and met the doctor on
duty, showed him the Yadi received by him from the police. Thereafter
the doctor took him to the Burns Ward where the deceased was being
treated. The doctor examined victim Hansaben physically to know
whether she was conscious or not and thereafter put an endorsement on
the form of dying declaration. Thereafter the doctor went away and
the witness remained in the cabin along with the patient. He
introduced himself as the Executive Magistrate and asked her to state
as to what had happened. He then recorded her dying declaration as
stated by the declarant. After recording the declaration, he took
thumb impression of Hansaben, as she was not literate and was not in
a position to sign. He himself put an endorsement and attested the
thumb impression of Hansaben and called the doctor and inquired about
the state of health of the deceased and the doctor put endorsement to
the effect that Hansaben was conscious when her statement was
recorded. That dying declaration was produced at Exh.15. The
recording of dying declaration lasted for about 30 to 35 minutes.
8.2
This witness has been cross-examined at length. During his
cross-examination, it is revealed that the Yadi was received by him
at his Office at about 8.05 hours in the evening. It also reveals
that he reached the hospital within five minutes and within 2-3
minutes he was at the place where the patient was; after consulting
the doctor. He admits that in the dying declaration (Exh.15) there is
an over-writing of the time of receipt of Yadi i.e. 20.05 hours. He
also admits that the time of recording of dying declaration indicated
to be 20.05 hours, which is then scored out and in the bracket 20.35
is written. He also admits that he had not put his initial over
there. Similarly, questions regarding grill in the kitchen was also
put and the witness has explained that initially the deceased spoke
about the room and then the kitchen and, therefore, he made necessary
changes in the dying declaration in that regard.
8.3 As
such, on close scrutiny of the evidence, we do not find anything
turning on the cross-examination to render the recording of the dying
declaration doubtful. On the contrary, we find that there is no
over-writing in the dying declaration (Exh.15) in respect of time of
receipt of yadi. It is, in fact, written, scored out and separately
time was indicated as 20.05 hours. What is scored out is 8
and it appears that the Executive Magistrate probably wanted to
indicate the time in twelve hours mode and then thought of indicating
it in twenty four hours. Fact however is that there is no
overwriting. If we see the Yadi (Exh.14), it contains specific
endorsement of the Executive Magistrate indicating the time of
receipt of Yadi to be 20.05 hours. The argument about manipulation of
time, therefore, does not survive.
8.4 The
dying declaration (Exh.15), if seen, would indicate that its
recording was started at 20.35 hours and was completed at 20.55
hours. There is over-writing in noting the time of commencement of
recording of dying declaration and it has immediately been written
down in the bracket as 20.35 . Though no initials are made
there, at the bottom of the dying declaration it is recorded that
the recording was completed at 20.55 hours. During his
cross-examination the Executive Magistrate has indicated that the
recording of dying declaration lasted for about 30 to 35 minutes. If
we consider this, then the time of commencement of recording of dying
declaration would tally and can be said to have been correctly
mentioned/noted. Incidentally, there is no correction in the time of
completing the recording of declaration.
8.5 The
other argument that is advanced is that the evidence of the
investigating officer, who recorded the FIR, would reveal that the
time of recording of FIR and the time of recording dying declaration
are same, which would mean, either of the two is incorrect and
recording of dying declaration by the Executive Magistrate is not
genuine. In this context, if the evidence of investigating officer
Mr.Sahdevsinh Jitubha Gohil recorded at Exh.29, is seen, he has
stated initially that he went to the hospital, inquired about the
health of the deceased and recorded her FIR and thereafter sent Yadi
(Exh.14) to the Executive Magistrate. The FIR was concluded at 20.30
hours and, therefore, recoding of it must have started prior to 20.30
hours. The evidence of the Executive Magistrate indicates that he
recorded the dying declaration between 20.05 hours and 20.55 hours.
It is, therefore, contended that both, the dying declaration and the
FIR were recorded simultaneously. Even the investigating officer has
stated that after recording the FIR, he sent Yadi to the Executive
Magistrate and, therefore, no reliance could have been placed by the
trial Court on the dying declarations for convicting the
appellants.
8.6 In
this context, it may be recorded that the investigating officer has,
in his examination-in-chief, initially stated that he recorded the
FIR and thereafter sent Yadi (Exh.14) to the Executive Magistrate for
recording dying declaration. However, during his cross-examination,
he has stated that it was his mistake to have stated that after
recording FIR, he sent Yadi to the Executive Magistrate. According to
the investigating officer, he had first sent Yadi to the Executive
Magistrate for recording dying declaration i.e. prior to recording
the FIR. We are prepared to accept this explanation in view of the
fact that his evidence was recorded on 13.8.2004, practically four
years after filing of the charge sheet. Such mistakes cannot wipe
out the effect of contemporaneous record. The Yadi was already
received by the Executive Magistrate at 20.05 hours and that can be
seen from Exh.14. Therefore, sending Yadi by the investigating
officer after recording FIR which was concluded at 20.30 hours would
not be a correct statement of fact, but only a mistake. In fact, if
the dying declaration Exh.15 and FIR Exh.30 are seen, they would
clearly reveal that after recording of the FIR was over at about
20.30 hours, recording of the dying declaration Exh.15 was commenced
from 20.35 hours. If the time of 20.35 hours appearing in the
initial part of Exh.15 was manipulated or changed so as to suit the
prosecution case, there would have been manipulation/change at the
end of the dying declaration where it was indicated that recording of
dying declaration was over at 20.55 hours, but there is no change or
alteration or modification or manipulation at the end. This argument,
therefore, does not appeal to us much.
9. It
was then contended that the evidence of the doctor has been ignored
by the trial Court. The Doctor, in his evidence, has stated that in
his opinion the deceased had not suffered accidental burn injuries,
but the injuries were suicidal in nature. Mr.Mangukiya, therefore,
vehemently argued that this would
rule out the possibility of homicidal burns being caused for death of
the deceased.
9.1 The
evidence of the doctor is in the form of opinion, which he had formed
upon examining the patient. It would not override or abrogate the
effect and impact of direct evidence as to the occurrence in the form
of dying declaration before the Executive Magistrate and the FIR,
which are found to be genuine and trustworthy. The situation may be
different if the medical evidence (not opinion) runs totally contrary
to the version of an eye witness.
9.2 We
distinguish the medical opinion and medical evidence. Medical
evidence would be what is/was seen or noticed by the doctor while
examining the patient or finding of fact on the basis of pathological
or other investigations. On the other hand, medical opinion would
mean his view or opinion formed on the basis of what he has medically
examined and cause of result/death. Therefore, in the instant case,
we have to to give a close look at the opinion of the doctor, who has
after examining the burn injuries,
opined that they were suicidal. It is not the case of either side
that the deceased suffered suicidal burns. Therefore, the opinion
makes no dent in the prosecution case.
10. It
was also argued that the thumb impressions on the dying declaration
and the FIR were got up and fake. In support of this argument, it was
contended that it has come in the evidence that the deceased suffered
about 95% burns all over her body and that, as her arms were burnt,
she could not have put the thumb impression and even if it was put,
it would not show ridges of it, which were clearly visible in the
dying declaration (Exh.15). In this context, doctor’s evidence is
relevant. The doctor has stated that both the upper limbs were burnt
and upper limbs would include part of the hand from shoulder upto
fingers. It has also come in the evidence of the doctor that if the
skin is burnt, it would not show the lining and ridges of the skin.
In light of this evidence, it was contended that since both the upper
limbs were burnt, the thumb impression of the deceased, which shows
the lines and marks of ridges, could not have been obtained. In this
context, we may refer
to the cross-examination of the doctor, where the doctor, in terms,
has stated that the deceased had put thumb impression on the dying
declaration Exh.15
in his presence. We notice that nowhere the doctor has stated that
the palms of the deceased were burnt and upper limb would include
from shoulder up-till fingers. Thus, when the Executive Magistrate
has certified that he had obtained thumb impression of the deceased
on the dying declaration and when it emerges during the course of
cross-examination of the doctor that he saw the thumb impression of
the deceased being taken by the Executive Magistrate, we have no
reason to doubt their versions. They are independent witnesses and
are not shown to have any grievance or prejudice against the
appellants. There is no reason to disbelieve the version of such
independent government officials.
11. It
was then contended that the neighbours and the treating doctor have
not been examined by the prosecution. In our opinion, non-examination
of these witnesses has not caused any prejudice to the appellants
when the prosecution case is duly established by independent, cogent
and reliable evidence. It is the quality of evidence which is
relevant and not quantity.
12. The
next argument was that, initially, the offence was registered as an
accidental death. In this context, our attention was drawn to
document Exh.14, which is the Yadi written by the police officer to
the Executive Magistrate. We rest content only by saying that there
is no reference to any accidental death. What is referred to is an
occurrence and not accidental death. The argument, therefore, cannot
sustain.
13. It
was argued that as per the dying declaration, kerosene was removed
from a stove in a small bowl, which was then poured on the victim and
then the victim was set on fire. It was the case of the defence that
such a small quantity of kerosene could not have caused such
extensive burns. It was opined by the doctor that the victim had
stated the manner in which the incident had occurred, and once the
dying declaration was found to be reliable, it would not be
permissible to go into such questions which would call for drawing
surmises or inferences and then drawing conclusions.
14. In
the light of the foregoing discussion, we are of the view that there
is no reason to doubt or suspect the genuineness or correctness of
the dying declaration (Exh.15) and the FIR (Exh.30), both of which
implicate both the appellants. It is clear that both the appellants
have participated in causing the death of the victim by pouring
kerosene on her and setting her to fire.
15. No
other contention was raised or judgment was cited by the learned
advocate for the appellants.
16. However,
before we conclude our judgment, we notice that both the appellants
are convicted for the offences of murder of Hansaben punishable under
Section 302 IPC and Section 498-A IPC for causing harassment to
Hansaben. In this context, we may notice that the parents of Hansaben
have not supported the case about harassment by the appellants. Not
only that, if the dying declaration is closely examined, it would go
to show that the allegations are against appellant No.2,
mother-in-law, about taunting the deceased on household issues. There
are no other attributions even to mother-in-law and,
therefore, in our view, in light of the provisions contained in
Section 498-A IPC, it would not fall within the meaning of ‘cruelty .
The conviction of both the appellants under Section 498-A IPC,
therefore, cannot be sustained.
17. Resultantly,
this appeal is partly allowed. The conviction of both the appellants
recorded by the Sessions Court, Bhavnagar, in Sessions Case No.
70/2000, by judgment and order dated 6.1.2005, for the offence
punishable under Section 498-A of the Indian Penal Code is hereby set
aside and they are acquitted of the said offence. Fine, if paid in
respect of this offence, be refunded to the appellants.
Conviction
recorded and sentence awarded to both the appellants by the Sessions
Court, Bhavnagar, in Sessions Case No. 70/2000, by judgment and order
dated 6.1.2005, for the offence of murder of Hansaben is hereby
confirmed.
[A.L.Dave,J.] [Bankim
N.Mehta,J.]
(patel)
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