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CC/2/2007 2/ 26 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
CONFIRMATION CASE No. 2 of 2007
WITH
CRIMINAL
APPEAL No.1171 of 2007
For Approval
and Signature:
HONOURABLE
MR.JUSTICE C.K.BUCH
HONOURABLE
MR.JUSTICE DN PATEL
=========================================
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 ?
=========================================
STATE
OF GUJARAT - Appellant(s)
Versus
THAKORE
DASHRATHJI SHIVUJI - Respondent(s)
=========================================================
Appearance
:
MR
HL JANI, LD.ADDL. PUBLIC PROSECUTOR for
Appellant(s) : 1,
MR JM BAROT for Respondent(s) :
1,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE C.K.BUCH
and
HONOURABLE
MR.JUSTICE DN PATEL
Date
: 15/10/2008
COMMON
ORAL JUDGMENT
(Per
: HONOURABLE MR.JUSTICE C.K.BUCH)
The
present Criminal Confirmation Case has been registered on account of
the reference received from the Court of learned Additional
Sessions Judge, Fast Track Court No.3, Mehsana, wherein the said
learned Additional Sessions Judge has awarded Capital Punishment to
the respondent herein-Dashrathji Shivuji Thakor, who is the
appellant of Criminal Appeal No.1171 of 2007, resident of village
Virta, Taluka Mehsana, District Mehsana, while dealing with Sessions
Case No.51 of 2007. It is submitted in the said report made by the
learned trial Judge that the judgment and order of conviction and
sentence awarding Capital Punishment to the respondent herein dated
30th August 2007 may be confirmed by this Court in light
of the provisions of Sections 366(1) and 366(2) of the Code of
Criminal Procedure, 1973. The said report says that the respondent
at the time of awarding sentence was intimated about his right to
assail the said judgment and order of conviction and death sentence
imposed, within a period of 30 days, if he so desires. This Court
has received certified copy of the judgment and order as well as the
R & P of Sessions Case No.51 of 2007.
The
very judgment and order of conviction and sentence has been assailed
by the respondent-appellant by way of preferring Criminal Appeal
No.1171 of 2007 before this Court. This Court (Coram : R.P. Dholakia
and K.S. Jhaveri, JJ) has admitted the said appeal and has also
ordered that the said appeal be heard along with present
Confirmation Case No.2 of 2007.
Shri
H.L. Jani, learned Additional Public Prosecutor and Shri J.M. Barot,
learned counsel appearing for the respondent, who is appellant of
Criminal Appeal, have jointly submitted that considering the nature
of proceedings, both these proceedings i.e. Confirmation Case No.2
of 2007 and Crimnal Appeal No.1171 of 2007, may be heard and decided
simultaneously by a common judgment.
Shri
H.L. Jani, learned Additional Public Prosecutor and Shri J.M. Barot,
learned counsel appearing for the respondent-convict, have taken us
through the oral as well as documentary evidence led during the
course of trial and also the judgment and order of conviction and
sentence awarding death penalty to the respondent-convict. Shri H.L.
Jani, while making submissions, in response to the query raised by
the Court, has submitted that considering the totality of facts and
circumstances of the case and the basic case placed against the
respondent-convict, the extreme penalty i.e. death penalty, was not
required to be imposed in the present case and the imprisonment for
life to the respondent-convict would have been the most adequate and
sufficient punishment. The learned trial Judge before imposing the
death penalty ought to have considered the facts and circumstances
of the case vis-a-vis the other relevant aspects which are required
to be considered closely before imposing the extreme penalty. Shri
H.L. Jani, learned Additional Public Prosecutor, has also pointed
out more than two decisions of the Apex Court where the Apex Court
has considered various aspects while dealing with the rarest of rare
cases. According to Shri Jani, the observations made by the Apex
Court if are considered, the present case would not fall in the
category of the rarest of rare case and, therefore, the death
penalty may not be confirmed by this Court. However, it is submitted
by Shri Jani, learned Additional Public Prosecutor, that there is a
strong case on merit and no error which can be said to have been
committed by the learned trial Judge for holding the
respondent-convict guilty for the charge of offence punishable under
Section 302 of the Indian Penal Code and, therefore, According to
Shri H.L.Jani, it is a case where the respondent-convict ought to
have been imposed imprisonment for life.
During
the course of submissions, Shri J.M. Barot, learned counsel
appearing for the respondent-convict, has submitted that this is a
case where the respondent-convict, even as per the case of the
prosecution, committed offence when he was under the influence of
Alcohol and the death of victim is nothing but undue anger of
respondent-convict. According to the prosecution, the
victim-Vinaben, who was the wife of respondent-convict, had no
cordial relations with respondent-convict, who was her husband, and
there were instances of quarrels between them and on account of the
same she occasionally used to go to her parental home and
ultimately, she used to come back to co-habit with her husband
i.e.respondent-convict. On the date of incident, Vinaben had just
returned from her parental home. When Vinaben and respondent
-convict were returning from her parental home, there was a quarrel
between them and the respondent-convict being habitual drunkard had
beaten his wife Vinaben (deceased) prior to the incident on the way
to her matrimonial home. Thereafter, the respondent-convict had left
the house and he had returned after sometime. After returning, he
had poured kerosene on his wife Vinaben and enkindled her and bolted
the house from outside ruthlessly. On hearing the shouts of victim
Vinaben, the people in the neighbouring area had rushed to rescue
the victim Vinaben and they had extinguished the fire.
So
this is a case, according to Shri Barot, whether according to the
prosecution, the respondent-convict has killed his wife on account
of suspicion as to the character of his wife, but this offence
though grave would not fall in the category of a heinous crime and
hence, the extreme penalty in such or similar cases is not normally
awarded by the Courts and on establishment of guilt, the accused
person is being sent to jail for life. So it would be at the most a
case where the learned trial Judge ought to have felt satisfied by
imposing imprisonment for life.
The
appeal preferred by the respondent-convict herein is an appeal under
Section 374 read with Section 386 of the Code of Criminal Procedure,
1973. Therefore, while upholding the judgment and order of
conviction and sentence this Court has to record its findings on
merits, more particularly on the strength of the evidence available
on record. Shri J.M. Barot, learned counsel appearing for the
respondent-convict, has taken us through the charge framed which is
at Ex.5. It reflects the basic case of the prosecution which reads
as under :
?S(1)
That on 17.12.2007 when the complainant-Thakor Vinaben was in the
house of Dashrathji Shivuji situated at village Virta, Tal. &
Dist. Mehsana, you the accused-Thakor Dashrathji alias Kaluji
Shivuji, who had married to the victim complainant Vinaben prior to
four years of the incident and you used to demand money often from
the complainant who was your wife during the marriage span and as the
complainant did not pay the same, by getting instigated and by
beating her often as well as by giving her physical and mental
harassment and also by falsely doubting her and thereby beating and
harassing her, have committed offence punishable under Section 498(A)
of the Indian Penal Code.
(2)
Further on 17.02.2007 at 03-00 p.m. when the complainant-Vinaben
was present at home, you the accused by bolting the house, pouring
kerosene lying in the Tin on the complainant Vinaben and igniting her
and by bolting the door of the house, had run away, whereby she died
at the Civil Hospital. Thus, you the accused have committed the
offence punishable under Section 302 of the Indian Penal Code by
committing murder of the complainant Vinaben by pouring kerosene and
igniting her.??
To
establish the guilt of the respondent, the prosecution has led oral
as well as documentary evidence and it would be sufficient to
consider the evidence led by PW-3 Hamir Thakor at Ex.14 and PW-4
Shivuji Thakor at Ex.15. The evidence of PW-10 Tejiben at Ex.23,
mother of the respondent-convict, according to us, is also relevant.
The learned trial Judge has appropriately considered the said part
of evidence of PW-10 Tejiben. The medical evidence led by Dr.P.P.
Soni at Ex.8, who performed the autopsy, is found sufficient by the
learned trial Judge to hold that the death of Vinaben is a homicidal
death which had occurred on account of burn injuries sustained by
Vinaben. It is not a case that the death of Vinaben was on account
of the injuries other than burn injuries. So there was no need for
us to go into detail discussion of the entries made in the
postmortem note prepared by Dr.P.P. Soni. The most vital part of
evidence, according to us, which even in absence of aforesaid
evidence is sufficient to link the respondent-convict with the crime
is the dying declaration of Vinaben. There are more than one dying
declaration on record and all of them, according to us, are found
proved applying the provisions of the Indian Evidence Act.
As
the victim Vinaben was inflicted burn injuries by pouring kerosene
and igniting her, her relatives had taken her to hospital. So the
doctor was supposed to ask the cause for injury sustained by her.
The case papers of the Government Hospital, Mehsana, at Ex.49 show
that the victim Vinaben had told the doctor that she had sustained
those injuries because her husband had poured kerosene on her and
thereafter ignited her and he is the person responsible for causing
injuries. According to prosecution, the incident had occurred
sometime prior to 02-30 p.m. i.e. in the afternoon hours. So in
couple of minutes, she had disclosed the identity of the person who
was responsible for causing injuries i.e. respondent-her husband.
After her admission in the hospital, she was taken Female Burns
Ward. The history was again asked to victim Vinaben and she had
narrated the same thing before the doctor who admitted her in the
hospital. The entire case papers also show that similar history was
given by the victim Vinaben earlier. The doctors are the independent
witnesses. The case papers are produced during the course of trial.
As such the genuineness of the same is not under challenge since
during the court of trial the witnesses have proved the same. It is
settled that the dying declaration may not be a detailed dying
declaration. A statement regarding cause of death is precisely
stated than such the statement would fall in the category of Section
32 of the Indian Evidence Act. According to us, the history given to
the doctor can be given the weightage of dying declaration within
the meaning of Section 32 of the Indian Evidence Act. Fortunately,
Vinaben being a young lady of about 30 years was able to even on
account of 95% burn injuries. The Police Inspector, Mehsana, had
recorded the said complaint and he has proved the said complaint
stating in detail as to how he recorded the complaint of the
complainant-Vinaben (deceased) and obtained her thumb impression
below the complaint at Ex.36. The said FIR is also a dying
declaration. The FIR being a detailed FIR describing the contingency
under which the Vinaben was victimized by her husband on different
occasions and at the time of incident when he ultimately poured
kerosene and ignited her. Vinaben has also narrated that prior to
two days of the incident in question, she had been to her parental
home with her youngest daughter Aasha and they were there for two
days and on the date of incident at about 09-00 a.m., they were
returning to village Virta i.e. at her matrimonial home, along with
her husband. At that time some derogatory remarks were made by her
husband impliedly impeaching her for looking at other persons moving
in town Patan and she was beaten there. It appears that since then
the respondent-convict must have decided to deal with the victim
Vinaben in his own manner and he was not able to forgive her for her
alleged conduct at town Patan. It is mentioned in the FIR that her
husband was suspecting her character and therefore only, he poured
kerosene and ignited her. Even cross-examination has also been made
of the said Police Inspector, Mehsana, who has proved the complaint,
but according to us, this Police Inspector has stood to the test of
cross-examination. True it is that a person who has sustained more
than 90% burn injury may not be in a physical and mental state of
mind to narrate the incident in such a detail, but there is nothing
on record to show that she had become unconscious any time prior to
recording of her complaint. In the deposition of the father of the
respondent-convict, one thing has come on record wherein he has
stated that when she was being taken to hospital, she was conscious.
It is in evidence that the respondent-convict had also attempted to
jump in to the jeep car while the victim-Vinaben was being shifted
to the hospital, however, he was snubbed.
No
suggestion was made by the defence as to whether the victim-Vinaben
had ever turned unconscious. The hospital case papers do not
indicate that prior to recording of the complaint of Vinaben, any
strong sedation was inserted into her body so that she can be
relieved of the pain. Here when the genuineness of the complaint
given by her in detail is required to be scanned, the Court cannot
ignore one more fact which is brought on record i.e. dying
declaration at Ex.13 recorded at 05-10 p.m. on 17th
February 2007 i.e. on the date of incident. The said dying
declaration has been proved by PW-2 Chetnaben Damodar Modi-Executive
Magistrate, by her deposition at Ex.11. This witness has proved the
entire procedure of recording of the dying declaration by her and
the dying declaration at Ex.13 recorded in Question and Answer
Format shows that victim Vinaben was conscious even at 05-10 p.m.
The endorsement of the doctor was obtained by the Executive
Magistrate at the top of the dying declaration at 05-10 p.m. i.e.
before recording of dying declaration. This endorsement has been
proved by the doctor so also by the Mamlatdar in their depostions
and the genuineness of the said endorsement is not found seriously
challenged. So a patient who was conscious at 05-10 p.m. cannot be
presumed to be either unconscious or under some disturbed state of
mind when her complaint came to be recorded by the Police Inspector,
Mehsana Police Station. The victim-Vinaben had matrimonial ties with
the respondent-convict of 14 years and had four children. An Indian
woman having four children and having matrimonial ties of 14 years
at least would not try to implicate her husband in such a serious
crime. The fact of having bolted the door from outside rules out the
possibility of commission of suicide by the victim Vinaben on
account of alleged mental torture. In the dying declaration recorded
by the Executive Magistrate, she has stated that at about 03-00 p.m.
after consuming liquor, on account of the said quarrel, the
respondent-convict had beaten up the victim Vinaben and thereafter,
poured kerosene on her and ignited her; and at last he bolted the
door of their house from outside. She has further stated that on
account of burn injuries she had started shouting and the people in
the neighbouring area had gathered on listening her shouts. They had
rushed to rescue her. Her mother-in-law and brother-in-law (elder
brother of her husband) had taken her to the hospital and when she
was brought out of her house, her mother-in-law and others were
outside her house. So in brief practically she has narrated the
entire incident which had occurred. When this statement is found
consistent with the story given by her to both the doctors who
admitted her in the hospital and then to the Police Inspector who
recorded her complaint, it would not have been possible for the
learned trial Judge or any Court to say that the dying declaration
recorded by the Executive Magistrate should be viewed with any
shadow of doubt though the same is recorded after several hours.
However, it appears that she had never been under the influence of
sedation. There is no evidence on record which go to show that she
was under the influence of sedation given to her. The persons who
recorded the complaint also were conscious that they may be examined
as to the mental status of the victim and, therefore, the Police
Inspector at the time he recorded the complaint had obtained the
certificate as to the consciousness of the victim Vinaben on the
paper on which he was recording the complaint and in the same way,
the Executive Magistrate also obtained necessary endorsement of the
doctor as stated hereinabove. So irrespective of the evidence of the
mother-in-law of the victim or father-in-law of the victim and other
witnesses, the respondent-convict could have been linked with the
crime even in absence of any other evidence when consistent four
dying declarations read with postmortem note proved by the doctor,
according to us, are sufficient forms of evidence under which the
respondent-convict could have been held guilty and, therefore, he
has been rightly held guilty by the learned trial Judge.
Considering
the nature of offence as well as the manner and method in which the
offence has been committed, it was not possible for the learned
trial Judge to hold the respondent-convict guilty for any charge
lesser than the charge of offence punishable under Section 302 of
the Indian Penal Code.
It
is settled legal position that in a case based on dying declaration,
if the dying declaration is found truthful and sound and the Court
is able to listen the ring of truth, then even from the single
statement of the victim, which can be accepted and received in
evidence as dying declaration under Section 32 of the Indian
Evidence Act, there is no need to even seek for any corroboration.
Seeking of corroboration is not a rule of law but the rule of
prudence, even then in the present case, the dying declaration at
Ex.13 recorded by the Executive Magistrate is found corroborated by
the FIR, two types of case papers recording history given by the
victim herself and the nature of injuries found on her body. When
this evidence straight way corroborates the dying declaration at
Ex.13, according to us, there was no scope to interfere with the
guilt found established by the learned trial Judge. According to us,
there is neither any element of error in appreciating the evidence
nor any element of perversity while holding the respondent-convict
guilty for the offence punishable under Section 302 of the Indian
Penal Code and hence, the respondent-convict is required to be
punished accordingly.
We
have considered the statements made by Shri H.L. Jani, learned
Additional Public Prosecutor and Shri J.M. Barot, learned counsel
appearing for the respondent-convict, on the point of quantum of
punishment. When it is submitted by learned Additional Public
Prosecutor that this is not a case wherein the death penalty could
have been imposed, there is no need for us to go into detailed
discussion. However, it is necessary for us to record the submission
made by Shri Jani is the most genuine one and it is based on settled
law. In the case of Prithvi (minor) v. Mamraj and others, reported
in 2004(15) SCC 279, the Apex Court has held, on facts, that the
case before the Apex Court was not the rarest of rare case. In this
decision, the Apex Court was dealing with a case of multiple
murders. One of the accused was awarded death penalty, who was found
the ring leader of the co-accused who committed the offence. The
conviction was found justified. The accused had assaulted the
victim-deceased with lathis when they were sleeping and the accused
were annoyed by declaration of deceased and there was some dispute
in reference to agricultural land. Though the person killed was
sleeping at the time of incident, the Apex Court found that this
case cannot be said to be the rarest of rare case because the Apex
Court considered the number of facts and circumstances of the case
and the circumstances were not suggestive of the situation where it
can be recorded that the case would fall in the category of the
rarest of rare case. The second decision is in the case of
Surendrapal Shivlal v. State of Gujarat, reported in 2005(3) SCC
127. In the cited decision, the appellant-accused was awarded death
sentence on account of killing a minor after committing rape on her
by abducting her in the middle of the night while she was sleeping
from her home. There were some altercations between the accused and
the mother of the victim girl. The Court found that the accused
guilty for the rape and murder of the girl, even then on facts and
circumstances of the case found that ultimately the case of
prosecution rests upon circumstantial evidence i.e. circumstance of
last seen together and the conduct of the accused prior to the
incident. So such a case, therefore, cannot be said to be the rarest
of rare case. The Apex Court held that the death penalty was not
warranted.
It
is possible for us to pose a question where any mechanism or formula
can be worked out under which a particular case can be placed in the
category of the rarest of rare case. The answer obviously would be
in the negative. Each criminal case has its own facts and its
shadow. The impact of deterrence whether the offence is
anti-national or heinous one, should reach to each corner of the
country. Here we would like to reproduce the relevant part of the
observations made by the Apex Court in the case of Prajeet
Kumar Singh v. State of Bihar, reported in 2008 AIR SCW 4202,
which are as under :
?S17.
A Constitution Bench of this Court in the case of Bachan Singh v.
State of Punjab, (1980) 2 SCC 684, has laid down certain guidelines
for imposing death sentence which have been culled out by a 3-Judge
Bench of this Court in Machhi Singh and Others v. State of Punjab,
(9183) 3 SCC 470, and accordingly the following propositions emerge
from Bachan Singh (supra) :
(i)
The extreme penalty of death needs to be inflicted except in the
gravest cases of extreme culpability.
xxx xxx
(iii)
Life imprisonment is the rule and death sentence is an exception. In
other words death sentence must be imposed only when life
imprisonment appears to be an altogether inadequate punishment
having regard to the relevant circumstances of the crime, and
provided, and only provided, the option to impose sentence of
imprisonment for life cannot be conscientiously exercised having
regard to the nature and circumstances of the crime and all the
relevant circumstances.??
So
in view of aforesaid, we are of the view that the submissions made
by Shri H.L. Jani, learned Additional Public Prosecutor, and Shri
J.M. Barot, learned counsel appearing for the respondent-convict,
are required to be accepted and accepting their submissions we
incline to say that the present case does not fall in the category
of the rarest of rare case. The extreme penalty of death was not
warranted. So we are not inclined to accept the request extended by
the learned Additional Sessions Judge to confirm the death penalty
imposed by him on account of the guilt established. This extreme
penalty is required to be commuted to rigorous imprisonment for
life.
As
we have stated earlier, the judgment and order of conviction and
sentence is absolutely legal and is not required to be interfered
with at all. The only penalty, therefore, left which can be imposed
is the imprisonment for life. So the respondent-convict is required
to be imposed imprisonment for life for the offence punishable under
Section 302 of the Indian Penal Code.
In
view of aforesaid observations and discussion, the present
Confirmation Case No.2 of 2007 is
hereby dismissed. The Capital Punishment imposed upon
respondent-Dashrathji Shivuji Thakor is not confirmed.
So
far as Criminal Appeal No.1171 of 2007 is concerned, the same is
partly allowed. The judgment and order of conviction of the
appellant-Dashrathji Shivuji Thakor for the offence of murder of
his wife Vinaben Dashrathji Thakor is confirmed and the appellant is
ordered to undergo IMPRISONMENT FOR LIFE instead of Capital
Punishment imposed upon him by the trial Court.
Before
parting with the order, it is necessary for us to mention that we
have considered certain circumstances while accepting the
submissions made by Shri H.L. Jani that in the present case the
respondent-convict at the time of commission of offence was young
man of 30 years. He is the member of a downtrodden society and
resident of a very small village. The family of the
respondent-convict does not have any financial resources. The
respondent-convict was not even able to engage a lawyer to defend
himself when he was being tried by the Court of Sessions. When he
committed the offences, even as per the say of the prosecution and
incident narrated by the victim Vinaben, he was under the influence
of Alcohol. It appears that perhaps the learned trial Judge failed
in appreciating this fact situation which was available on record,
otherwise the learned trial Judge perhaps might not have imposed
such an extreme penalty of death.
(C.K.
Buch, J)
(D.N.
Patel, J)
Aakar
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