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CR.A/581/2001 17/ 19 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
APPEAL No. 581 of 2001
For
Approval and Signature:
HONOURABLE
MR.JUSTICE A.M.KAPADIA
HONOURABLE
MR.JUSTICE Z.K.SAIYED
=========================================================
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 ?
=========================================================
MAHESHBHAI
DHANJIBHAI PARMAR - Appellant(s)
Versus
STATE
OF GUJARAT - Opponent(s)
=========================================================
Appearance
:
THROUGH
JAIL for Appellant(s)
: 1,MR JM BUDDHBHATTI for Appellant(s) : 1,
MR. K.C.SHAH,
ASSISTANT PUBLIC PROSECUTOR for Respondent(s) :
1,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE A.M.KAPADIA
and
HONOURABLE
MR.JUSTICE Z.K.SAIYED
Date
: 8/08/2008
ORAL
JUDGMENT
(Per
: HONOURABLE MR.JUSTICE A.M.KAPADIA)
Challenge
in this Appeal under Section 374 of the Code of Criminal Procedure
(?Sthe Code?? for short) is to the correctness of the judgment and
order dated 4.7.2001 rendered in Sessions Case No. 101 of 1999 by
the learned Additional Sessions Judge, Bharuch, by which the sole
Appellant (?Sthe Accused?? for short) has been convicted for
commission of the offence punishable under Section 302 of the Indian
Penal Code (?SIPC?? for short) and sentenced to suffer
imprisonment for life and fine of Rs.5000/- in default of payment of
fine to undergo further RI for 3 years.
The
prosecution case as disclosed from FIR, which is in the nature of
dying declaration and the dying declaration recorded by the
Executive Magistrate, and unfolded during trial is as under:
(i) It
is the case of the prosecution that deceased Jashodaben gave her
statement before PW-15 Kanjibhai Roopjibhai Parmar, PSI, Jhagadiya
Police Station, while she was in Bharuch Civil Hospital for
treatment on account of burn injuries, wherein, inter alia it is
alleged that she is residing with her children at Jhagadia Motaval
Faliya, Jhagadia and was doing miscellaneous labour and household
work. Her marriage was performed with Khushalbhai Fulabhai Motala
17 years back. She has two sons named Rohan and Nilesh and two
daughters named Daxa and Pragna. Her husband Khushalbhai Fulabhai
had expired two years prior to incident due to heart attack. One
Mahesh Dhanji Parmar, aged 25 years, residing opposite to her house,
came in contact with her and used to visit her house. He is also
doing miscellaneous labour work. He proposed her to marry him by a
simple ceremony of ?Sful-har?? and thereby set up a house. She
told him that her sons and daughters have become major and yet they
are not married. So he may find a girl and marry. He did not agree
and of and on pressurized her to marry. She tried to persuade him
not to come to her house. However, he was visiting her house by
consuming liquor. He was quarreling with her on this issue in
presence of her daughters and was beating her. She very much tried
to persuade him but he did not agree. On 31.1.1999 (Sunday), Mahesh
Dhanji came in drunken condition to her house at about 9:30 or
10:00 in the night. He told her ?Shave I prepared his food??.
She informed ?Swhy should she prepare his food??. She had
nothing. Then she prepared something and gave it to her children
and made them to sleep. He quarreled by saying ?Syou have prepared
food for your children and why not for me??. He became angry. He
said that she does not want to marry him and so she has not prepared
his food. Thus he gave her two to four slaps and said he shall set
her on fire as she has not prepared his food. She also said ?Slet
me see how you set me on fire??. She felt that he is speaking in
drunken condition and would do nothing. Then he opened the cover of
the stove in the kitchen and sprinkled kerosene on her body and
shoulder by holding her hand. At that time also she felt that he
was threatening her and would not set her on fire. So she did not
protest. Mahesh became very much angry after sprinkling the
kerosene. He lightened a match-stick from a match box and threw on
her. So, it was a sudden fire. She had put on a polyester gown
which caught fire. She started burning. Mahesh left her hand. She
started shouting. Her children got up by hearing her shouts and
started weeping. At that time Mahesh threw small mattresses on her
and tried to extinguish the fire. Out of her two daughters, one
daughter brought water and poured on her body. The fire was
extinguished. This incident of setting fire happened in her
kitchen. She ran towards the bedroom from the kitchen after the
fire and fell down near the cupboard. Her daughters also poured
water on her and tried to save her. Mahesh came to her house in the
night after her children slept. There was altercation in the
kitchen for about thirty to forty five minutes and then kerosene was
sprinkled on her and she was set on fire. When Mahesh came to her
house, the door was closed. He entered from the back side and set
her on fire. Her children awakened on hearing the shouts and poured
water on her and opened the front door of her house. People rushed
to her house. Though the mattresses were thrown on her body, the
fire did not extinguish and Mahesh ran away from the back door. On
receiving this news, her Jethani (wife of her husband’s elder
brother) and elder son Dinesh, residing near her house, rushed
there. They took her to Jaghadia referral hospital, where only a
peon was available, who told the son of her Jeth (Husband’s
elder brother) to take her to Civil Hospital, Bharuch immediately
and to get her admitted immediately. Thus they have brought her in
Civil Hospital in Bharuch and admitted her. She is under the
treatment. At the time when she gave statement before PW-15
Kanjibhai Roopjibhai Parmar, PSI, she was conscious and she has
stated the aforesaid facts in full sound state of mind. Mamlatdar
has recorded her statement and she has stated the facts in reply to
his query.
(ii)
The aforesaid complaint was recorded by PW-15 Kanjibhai Roopjibhai
Parmar in Bharuch Civil Hospital and beneath the same he has
obtained thumb impression of Jashodaben. The said statement is on
record at Exh. 39. Prior to recording of the statement, PW-15 had
already started investigation. During the course of investigation he
has drawn the panchnama of the scene of offence and recorded the
statements of four eyewitnesses. He has arrested the Accused after
drawing the panchnama of his person and the clothes were also
recovered from him. During the course of treatment Jashodaben died.
Thereafter, he has received the vardi from the PSO that Jashodaben
had died and therefore, he has added the offence of murder
punishable under Section 302 IPC. The extract of the said station
diary is on record at exh.40. Thereafter he has entrusted the
investigation to PW-16 Yakubbhai Emroz Bhatiya, PSI. After taking
over the investigation, he has held the inquest on the dead body of
Jashodaben and sent the same for PM. He has also obtained the dying
declaration recorded by the Executive Magistrate and sent the
muddamal to FSL for chemical analysis.
(iii) After
receipt of the PM report, FSL report and the dying declaration
recorded by the Executive Magistrate, as sufficient incriminating
evidence was found against the Accused for commission of the offence
punishable under Section 302 IPC, he filed charge sheet in the Court
of learned JMFC, Jhagadia.
(iv) As
the offence under Section 302 is exclusively triable by the Court of
Sessions, the learned JMFC, Jhagadia committed the case to the Court
of Sessions, Bharuch. The learned Additional Sessions Judge, to whom
the case was made over for trial, framed charge against the Accused
for commission of the offence punishable under Section 302 IPC.
(v) The
charge was read over and explained to the Accused. The Accused
pleaded not guilty to the charge and claimed to be tried.
Therefore, he was put to trial by the learned Additional Sessions
Judge, Bharuch in Sessions Case No. 101 of 1999.
(vi) In
order to bring home the charge leveled against the Accused, the
prosecution has examined in all 16 witnesses and relied upon their
oral testimony, details of which have been narrated in paragraph 5
of the impugned judgment and order.
(vii) To
prove the culpability of the Accused, the prosecution has also
produced in all 12 documents and relied upon the contents of the
same, the details of which are mentioned in paragraph 6 of the
impugned judgment and order.
(viii) After
recording of evidence of the prosecution witnesses was over, the
trial Court explained to the Accused, the circumstances appearing
against him and recorded his further statement under Section 313 of
the Code. In his further statement, the Accused denied the case of
the prosecution in its entirety. He has stated that a false case has
been filed against him. However, he has neither led any
evidence nor examined any witness in support of his defence.
(ix) On
appreciation, evaluation, analysis and scrutiny of the evidence on
record, the trial Court came to the conclusion that the Accused has
sprinkled kerosene on deceased Jashodaben and set her ablaze to
cause her death. The prosecution has proved that Jashodaben died a
homicidal death as the Accused has sprinkled kerosene on the
deceased Jashodaben and set her ablaze to cause her death, on the
basis of the two DDs, one in the form of a complaint at Exh. 39 and
the another recorded before the Executive Magistrate at exh.12 as
well as eyewitnesses. Thus the involvement of the Accused for
commission of the the offence of murder of Jashodaben under Section
302 has been proved by the prosecution beyond reasonable doubt.
(x) The
prosecution has also proved the motive behind the murder, as the
deceased Jashodaben refused to marry the Accused and therefore, the
Accused was minded to kill her, therefore, there was a knowledge as
well as the intention of doing the act by the Accused.
(xi) On
the aforesaid finding, the trial Court has convicted the Accused for
commission of the offence punishable under Section 302 IPC and
sentenced to suffer imprisonment for life and fine of Rs.5000/- in
default to undergo further RI of 3 years, giving rise to instant
Appeal at the instance of Accused, which has been filed by the
Accused through the jail authorities.
Mr.
J.N.Buddhbhatti, learned advocate of the Accused has submitted that
the case of the prosecution is based on two DDs as well as four eye
witnesses. However, looking to the burn injuries, it is doubtful
whether deceased was physically and mentally fit to give the DDs.
It was not possible for her to give the DD, therefore, she was unfit
to give the DD. So far as eyewitnesses are concerned, they are the
family members of deceased Jashodaben and they dislike the Accused
as the Accused wanted to marry their mother Jashodaben, therefore
possibility of falsely ropping the Accused in the murder of
Jashodaben cannot be ruled out, therefore, no reliance can be placed
on the oral testimony of those eyewitnesses. He, therefore,
submitted that both the DDs are got up with a view to falsely rope
the Accused in the offence of murder. He, therefore urged that the
impugned judgment and order suffers from non-appreciation of
evidence in its proper perspective, the same therefore, deserves to
be quashed and set aside by allowing this Appeal and thereby
acquitting the Accused of the offence with which he was charged.
In
counter submission, Mr. K.C.Shah, learned APP for the Respondent ?
State of Gujarat has supported the impugned judgment and order by
contending that there is no infirmity or illegality committed by the
trial Court in appreciating the evidence of two sets of dying
declarations; one in the form of a complaint (exh. 39) and another
recorded by PW-15 Executive Magistrate at exh.12. It is also
emphasized by him that there are four eyewitnesses and there is no
reason to discard their oral testimony. They saw the Accused
sprinkling kerosene and setting their mother Jashodaben ablaze by
the Accused. He, therefore, urged to dismiss the Appeal by
confirming the judgment and order of conviction and sentence
recorded against the Accused by the trial Court.
This
Court has considered the submissions advanced by the learned
advocates appearing for the parties and perused the impugned
judgment and order. This Court has undertaken a complete and
comprehensive appreciation of all vital features of the case and the
entire evidence on record, which is read and re-read by the learned
advocates of the parties with reference to broad and reasonable
probabilities of the case. This Court has examined the entire
evidence on record for itself independently of the learned Judge of
the trial Court and considered the arguments advanced on behalf of
the Accused and infirmities pressed, scrupulously with a view to
find out as to whether the trial Court has rightly recorded the
order of conviction and sentence.
There
is no dispute to the fact that deceased Jashodaben had died an
unnatural death due to burn injuries. To prove this fact, the
prosecution has examined and relied upon the oral testimony of PW-13
Dr. Sunil Dattarav, who has performed the PM on the dead body of
Jashodaben and issued PM report, which is on record at Exh.35. A
conjoint reading of oral testimony of Dr. Sunil Dattarav at Exh. 33
and the PM report, it is seen that in his evidence PW-13, has inter
alia testified that deceased Jashodaben had received extensive burn
injuries and died because of shock following extensive burn
injuries. Therefore, it has to be held that deceased Jashodaben had
died an unnatural death because of burn injuries received by her.
As
per the prosecution case, deceased Jashodaben had died a homicidal
death because the Accused has sprinkled kerosene on Jashodaben and
set her ablaze. To prove this fact, the prosecution mainly relied
upon 2 sets of DDs, one in the form of a complaint at Exh.39 and the
another recorded by the Executive Magistrate at Exh.12. As well as
four eyewitnesses.
Before
appreciating the evidence of the witnesses, before whom the dying
declarations were made by the deceased, it would be relevant to
notice the law relating to dying declaration. In case of Paniben
v/s State of Gujarat, 1993 (2) GLR, 985,
the Supreme Court has formulated the principle laid down in several
judgments of the Supreme Court governing dying declarations. A
Division Bench of this Court in the case of State
of Gujarat v. Maniben, 2001 (2) GLR 1749,
has very succinctly stated the law in this regard as under:
?SSection
32(1) of the Evidence Act, 1872 is an exception to the general rule
that hearsay evidence is not admissible evidence or that unless
evidence is tested by cross-examination, it is not
credit-worthy. Under section 32(1) when a statement is made by a
person as to the cause of death or as to any of the circumstances,
which result in his death, in cases in which the cause of that
person?”s death comes into question, such a statement, oral or in
writing made by the deceased to the witness is a relevant fact and is
admissible in evidence. The statement made by the deceased called the
dying declaration, falls in that category provided it has been made
in a fit mental condition. It is well settled that conviction can be
based on the dying declaration itself provided it is satisfactory and
reliable. If there are more than one dying declarations, then the
Court has to scrutinize all the dying declarations to find out if
each of them passes the test of being trustworthy. The Court must
further find out whether different dying declarations are consistent
with each other in material particulars before accepting and relying
upon the same. A dying declaration made by a person on the verge of
his death has a special sanctity, as at that solemn moment, a person
is most unlikely to make any untrue statement. The sanctity attached
to dying declaration is that a person on the verge of death would not
commit sin of implicating somebody falsely. The shadow of impending
death is by itself the guarantee of truth of the statement made by
the deceased regarding cause or circumstances leading to his death.
The general principle on which this species of evidence is admitted
is that they are declarations made in extremity, when the person is
at that point of death and when every hope of this world is gone. At
that point of time every motive to falsehood is silenced and the mind
is induced by the most powerful consideration to speak the truth.
Such a solemn situation is considered by the law as creating an
obligation equal to that which is imposed by a positive oath
administered in a Court of Justice. A dying declaration, therefore,
enjoys almost a sacrosanct status as a piece of evidence, coming as
it does from the mouth of the deceased victim. Once the statement of
dying person and the evidence of the witnesses testifying to the same
passes the test of careful scrutiny of the Court, it becomes very
important and reliable piece of evidence and if the Court is
satisfied that the dying declaration is true and free from any
embellishment such a dying declaration by itself can be sufficient
for recording conviction without looking for any corroboration.
However, if there are any infirmities of such nature warranting
further assurance then the Court has to look for corroboration. The
rule of corroboration requires that the dying declaration be
subjected to close scrutiny since the evidence is untested by
cross-examination. The dying declaration must be accepted, unless
such declaration can be shown not to have been made in expectation of
death or to be otherwise unreliable. Any evidence adduced for this
purpose can only detract from its value, but does not affect its
admissibility. One of the important tests of reliability of dying
declaration is that the person who recorded it must be satisfied that
the deceased was in a fit state of mind. Generally, the following
three tests have been devised in judicial pronouncement in order to
answer the question whether the dying declaration is true: (1) Was
the victim in a position to identify the assailant/s? (2) Whether the
version narrated by the victim is intrinsically sound and accords
with probabilities? and (3) Whether any material part is proved to be
false by other reliable evidence???
In
the light of the principles laid down in the above-referred to two
decisions, we may now proceed to consider the evidence on record
relating to dying declarations and examine both the dying
declarations independently to ascertain the veracity of each
declaration.
Now
so far as the first DD is concerned, it is in the form of a
complaint, which is on record at Exh.39, which was recorded by PW-15
Kanjibhai Rupjibhai. It is inter alia stated therein that
Jashodaben was residing with her children at Jhagadia Motaval
Faliya, Jhagadia and was doing miscellaneous labour and household
work. Her marriage was performed with Khushalbhai Fulabhai Motala
17 years back. She had two sons named Rohan and Nilesh and two
daughters named Daxa and Pragna. Her husband Khushalbhai Fulabhai
had expired two years back due to heart attack. One Mahesh Dhanji
Parmar proposed her to marry him. She denied. On 31.1.1999 (Sunday),
Mahesh Dhanji came in drunken condition to her house at about 9:30
or 10:00 in the night and picked up quarrel with her and threatened
her to set her ablaze. Then he sprinkled kerosene on her body and
lightened a match-stick from a match box and threw on her. So, it
was a sudden fire. She started shouting. Her children awakened on
hearing the shouts and poured water on her and opened the front door
of her house. People rushed to her house. Though the mattresses
were thrown on her body, the fire did not extinguish and Mahesh ran
away from the back door. On receiving this news, her Jethani
(wife of her husband’s elder brother) and elder son Dinesh, residing
near her house, rushed there. They took her to Jaghadia referral
hospital, where only a peon was available, who told the son of her
Jeth (Husband’s elder brother) to take her to Civil Hospital,
Bharuch immediately and to get her admitted immediately. Thus they
brought her in Civil Hospital in Bharuch and admitted her. To
prove the aforesaid statement, the prosecution has also examined
PW-15 Kanjibhai Roopjibha at Exh.38. He has in term deposed with
regard to recording the statement of deceased after drawing the
panchnama about the physical and mental condition of Jashodaben.
On
reappraisal of the aforesaid DD there is no manner of doubt that
PW-15 Kanjibhai Roopjibhai after ascertaining about the physical and
mental condition of Jashodaben had recorded her statement. As per
the narration given by Jashodaben she has given the statement as to
how the incident had taken place and as to how the Accused had
sprinkled kerosene on her and set her ablaze. She has also stated
about the motive behind it. Therefore, there is no reason to
discard the DD which is in the form of the complaint at Exh.39.
Now,
this takes us to examine the second DD which was recorded by the
Executive Magistrate which is on record at Exh.12. To prove this
fact, the prosecution has examined and relied upon the oral
testimony of PW-4 Mohanbhai Mangabhai at Exh.10, Circle Officer in
Mamlatdar Office, Bharuch. He received the police yadi for
recording the evidence of deceased Jashodaben. He, therefore, went
to the burn ward of the Civil Hospital. He himself has verified
whether Jashodaben was able to reply and thereafter he started
interrogating Jashodaben and tried to get the information about the
incident. Before him, Jashodaben had in term stated about the
incident. Jashodaben had stated that on 31.1.1999 the Accused came
to her house in drunken condition and picked up quarrel and
thereafter sprinkled kerosene from stove on her and set her ablaze.
The said DD is on record at Exh.12. It is true that on reappraisal
of the evidence of PW-4 Mohanbai Mangabhai, he has not obtained the
certificate from the Doctor about the physical and mental condition
of the deceased prior to recording of the statement. But that is
not fatal to the prosecution case as there are four eyewitnesses to
the incident. Therefore, this evidence can be used for
corroboration of the oral testimony of the eyewitnesses and
therefore can be relied and acted upon.
In
order to prove the culpability of the Accused, the prosecution has
also examined 4 eyewitnesses. In this connection, the prosecution
has relied upon the oral testimony of PW-1 Daxaben Khushalbhai at
Exh.7 ? daughter of deceased Jashodaben, PW-2 Praghaben
Khushalbhai at Exh.8 ? daughter of deceased Jashodaben, PW-3
Rohanbhai Khushalbhai at Exh.9 ? son of deceased Jashodaben and
PW-6 Nilesh Khushalbhai at Exh.16 ? son of deceased Jashodaben.
In their oral testimonies, all of them have unequivocally and in
clear terms stated about the incident which had taken place. The
sum and substance of their oral testimonies is that on the day of
incident, i.e. 31.1.1999 the Accused came to their house. Prior to
that also the Accused used to come to their house and picked up
quarrel with Jashodaben. The Accused wanted to marry their mother
which was not agreeable to Jashodaben. Therefore, the Accused had
assaulted Jashodaben by sprinkling kerosene on her and thereafter
setting her ablaze. It may be noted that the above four witnesses
have been cross-examined by the learned advocate but nothing
substantial has been brought out from their evidence which would
impeach their credibility.
On
overall reappraisal of two sets of dying declarations; one in the
form of a complaint at Exh.39 and the another recorded by the
Executive Magistrate at Exh.12 and also the oral testimony of four
eyewitnesses, according to us, the complicity of the Accused for
commission of the offence of murder is duly proved and established
beyond reasonable doubt. Therefore, it has to be held that deceased
Jashodaben had died a homicidal death after receiving the burn
injuries by the Accused and there is no escape from the conclusion
that the Accused had sprinkled kerosene on deceased Jashodaben and
set her ablaze and on receiving the burn injuries deceased
Jashodaben succumbed to the same. Therefore, the complicity of the
Accused for commission of the offence of murder of Jashodaben,
punishable under Section 302 IPC is proved beyond reasonable doubt.
We
find ourselves in complete agreement with the finding, ultimate
conclusion and the resultant order of conviction and sentence
recorded by the trial Court, as according to us, no other finding,
conclusion and order, is possible except the one reached by the
trial Court, which is required to be affirmed by us.
Seen
in the above context, there is no reason or justifiable ground to
interfere with the impugned judgment and order of conviction and
sentence passed by the trial Court, and as the Appeal lacks merit,
deserves to be dismissed by confirming the judgment and order passed
by the trial Court.
For
the foregoing reasons, the Appeal fails and accordingly it is
dismissed. Resultantly the judgment and order of conviction and
sentence dated 4.7.2001 rendered in Sessions Case No.101 of 1999 by
the learned Additional Sessions Judge, Bharuch, is hereby confirmed
and maintained.
(A.M.Kapadia,J)
(Z.K.Saiyed,J)
Jayanti*
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