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CR.A/1287/2005 7/ 7 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
APPEAL No. 1287 of 2005
For
Approval and Signature:
HONOURABLE
MR.JUSTICE A.L.DAVE
HONOURABLE
MR.JUSTICE R.M.CHHAYA
=============================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
YES
2
To
be referred to the Reporter or not ? YES
3
Whether
their Lordships wish to see the fair copy of the judgment ? NO
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 ? NO
5
Whether
it is to be circulated to the civil judge ? NO
=============================================
CHAMPABEN,
WIDOW OF UMEDJI @ KANUJI MAGANJI - Appellant(s)
Versus
THE
STATE OF GUJARAT - Opponent(s)
=============================================
Appearance
:
MR MAHENDRA K PATEL for
Appellant(s) : 1,
MR KL PANDYA, APP for Opponent(s) :
1,
=============================================
CORAM
:
HONOURABLE
MR.JUSTICE A.L.DAVE
and
HONOURABLE
MR.JUSTICE R.M.CHHAYA
Date
: 22/02/2011
ORAL
JUDGMENT
(Per : HONOURABLE MR.JUSTICE A.L.DAVE)
1. The
appellant is convicted by Sessions Court, Patan for the offence of
having committed murder of her son-in-law Jagdishbhai Dahyabhai by
pouring kerosene on him and setting
him ablaze on 25.10.1999 at about 8.00 p.m., in her house near
Bageswar Mahadev Temple, Patan and hence this appeal.
2.
The prosecution case in brief is that the appellant, her daughter and
her son-in-law Jagdishbhai Dahyabhai were staying together at the
appellant’s house near Bageswar Mahadev Temple at Patan. It is
further case of the prosecution that the appellant was maintaining
some illicit relationship which was objected to by her son-in-law,
and therefore, on 25.10.1999 at about 8.00 p.m., upon the deceased
Jagdishbhai rebuking the appellant about her relationship, she poured
kerosene on his person and set him to fire. After the incident, the
deceased went to his parental house. Before his mother and father he
gave an oral dying declaration about the appellant having set him to
fire. On the next day of the incident the deceased was taken to
hospital. He also lodged an FIR with the police. In the FIR also he
gave the same reason for his injuries. The Executive Magistrate
recorded dying declaration, where also he gave the same reason for
his burns injuries. Deceased Jagdishbhai ultimately succumbed to
the injuries after about 9 days. The FIR which was initially lodged
for attempt to murder thus became an FIR for murder by adding Section
302 of the Indian Penal Code. The police investigated the case and
filed chargesheet in the Court of J.M.F.C., Patan who, in turn,
committed the case to the Court of Sessions and Sessions Case No.339
of 2002 came to be registered. Charge was framed against the accused
at Exh.13. She pleaded not guilty to the charge and claimed to be
tried.
3. Considering
the evidence led by the prosecution, the trial court came to a
conclusion that the prosecution was successful in establishing charge
of murder against the appellant and therefore convicted the appellant
for the offence of murder and sentenced her to undergo imprisonment
for life and to pay a fine of Rs.200/-, in default, to undergo
further simple imprisonment for one month, by judgment and order
dated 10.6.2005, rendered in Sessions Case No.339 of 2002. This has
given rise to the present appeal.
4. Learned
advocate Mr.Mahendra Patel for the appellant submitted that the
trial court has erred in relying on the dying declaration before the
Executive Magistrate. The evidence of the endorsement made by doctor
about the conscious state of mind of the deceased, as emerging from
the deposition of the doctor and that of the Executive Magistrate are
in conflict and therefore the dying declaration ought not to have
been accepted by the trial court. He submitted further that, in
fact, it was an incident of suicide which has been given the
shape/colour of a murder. Since the deceased used to drink and did
not work, he was abused by his relatives particularly, his
mother-in-law, which developed in him a sense of repentance, and
he, therefore, set himself to fire and committed suicide.
Mr.Patel submitted that the evidence of other witnesses is doubtful
and therefore the appeal may be allowed and the conviction may be
set aside.
5. Learned
APP Mr.K.L.Pandya has opposed this appeal. According to him, the
evidence of endorsement does not hit the dying declaration recorded
by the Executive Magistrate inasmuch as it inspires confidence.
Mr.Pandya submitted that the endorsement by the doctor is only a rule
of prudence and not a necessity of law. If an independent officer
like Executive Magistrate satisfies about the conscious state of mind
of such declarant and records the dying declaration in absence
of any other lacuna in recording the dying declaration, the dying
declaration becomes valid and may be accepted at face value.
Mr.Pandya submitted that the other doubts raised by learned advocate
for the appellant are not good enough to brush aside consistent
evidence in the form of dying declaration before Executive
Magistrate, oral dying declaration before father and mother of the
deceased and the FIR by the deceased himself. Mr.Pandya, therefore,
submitted that the judgment and order may not be interfered with in
exercise of appellate jurisdiction.
6. We
have examined the record and proceedings in context of rival side
submissions and we find that the guilt of the accused-appellant is
proved through the evidence of the Executive Magistrate Jayantilal
Nanalal Contractor at Exh.39. He states that he had recorded the
dying declaration between 1.45 to 1.50 at night hours, and before
doing so, he consulted the doctor. The doctor, on the other hand,
states that he was consulted by the Executive Magistrate at 1.50
hours, and after verifying the condition of the patient, he put his
endorsement at that point of time. The discrepancy is, therefore,
only question whether the endorsement is made before recording the
dying declaration or after recording the dying declaration. Against
this, the fact remains that the endorsement was made by the doctor
and it was made after examining the patient. It is to be noted that
the deceased succumbed to the injuries only after 8 days of such
dying declaration.
7. It
is also to be noted that what is stated in the dying declaration
about the cause of death by the deceased is corroborated by evidence
of Laxmiben Dahyabhai, P.W. 3 (Exh.21), before whom he had given
oral dying declaration on the same line. Similar is the situation
with the evidence of his father Dahyalal Mohanlal Bhil (Exh.19).
8.
An attempt is made to assail the prosecution case by saying that
daughter of the accused and wife of the deceased, Jashiben, is not
examined by the prosecution. In cross-examination of the
Investigating Officer, Chimanlal Sankalchand Nayak (Exh.44), it was
put to him that he had recorded the statement of Jashiben
Jagdishkumar, which he admits. He admits that, in that statement,
Jashiben stated that there was a dispute between her husband and her
mother on her husband having taken liquor. She then stated that she
had gone to attend nature’s call and when she came back, her
husband was already ablaze. This attempt on the part of defence
fails to prove that the deceased had set himself to fire.
Differently put, this small titbits of doubtful circumstances do not
abrogate the direct, strong and independent evidence in the form of
dying declaration recorded by the Executive Magistrate so also the
FIR recorded by the police, as given to them by the deceased.
9. The
overall assessment of evidence thus would be that there is no reason
to doubt the dying declaration which establishes the guilt of the
accused-appellant and the doubts which are raised cannot be
considered to be reasonable doubts, which would be good enough to
render the evidence in the form of dying declaration unbelievable.
We do not find any merits in the appeal. The appeal must fail and
stands dismissed.
(
A.L. DAVE, J. )
(
R.M. CHHAYA, J. )
syed/
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