Gujarat High Court
Dineshbhai Alias Gemabhai Chandubhai ... vs State Of ... on 11 February, 2014
Author: Jayant Patel
Bench: Jayant Patel
R/CR.A/484/2010 CAV JUDGEMNT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL APPEAL NO. 484 of 2010
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE JAYANT PATEL
and
HONOURABLE MR.JUSTICE Z.K.SAIYED
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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 ?
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DINESHBHAI ALIAS GEMABHAI CHANDUBHAI NIZAMA....Appellant(s)
Versus
STATE OF GUJARAT....Opponent(s)/Respondent(s)
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Appearance:
HL PATEL ADVOCATES, ADVOCATE for the Appellant(s) No. 1
MR HL JANI, APP for the Opponent(s)/Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE JAYANT PATEL
and
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R/CR.A/484/2010 CAV JUDGEMNT
HONOURABLE MR.JUSTICE Z.K.SAIYED
Date : 11/02/2014
CAV JUDGEMNT
(PER : HONOURABLE MR.JUSTICE Z.K.SAIYED)
1. The appellant - original accused has challenged the judgment and order dated 10.2.2010 rendered by the learned Additional Sessions Judge, Vadodara, in Sessions Case No.106 of 2009. The accused was charged with commission of offence punishable under Section 302 of the Indian Penal Code. By impugned judgment, accused was convicted under Section 302 of the Indian Penal Code and sentenced to life imprisonment with fine of Rs.5,000/ and in default of payment of fine, he was sentenced to R.I. of further one year.
2. Briefly stated the prosecution version was that the complainant Bhailal Mohanlal Raval filed a complaint with Vadodara Taluka Police Station bearing CR No.I71 of 2009 on 1.6.2009 stating that his granddaughter had Page 2 of 24 R/CR.A/484/2010 CAV JUDGEMNT married with Sanjaybhai Chhaganbhai Raval on 15.5.2009 and she was invited to his house before about a week of the incident and, thereafter, he knew that the appellant was having love affair with his daughter Anjuben. On 1.6.2009 at about 6:45 a.m. his daughter and wife had woken up. The complainant had gone to answer the nature's call and his wife had gone to Village : Singhrot for getting milk. At about 7:00 a.m. when the complainant went near his house, he found his daughter Anjuben in burning condition near his house in the open space of house of Manubhai Chandubhai. He had seen the appellant running away from Anjuben towards his house. In the meantime, his daughter shouted for help and he had extinguished the fire by covering her body with mattress. In the meantime, Shankarbhai Ranchhodbhai Nizama - P.W.No.4, Ex.32, Santosh Chimanbhai - P.W.No.5, Ex.33 and Vijay Chimanbhai - P.W.No.3, Ex.31 had come for rescue. At that time, Anjuben Page 3 of 24 R/CR.A/484/2010 CAV JUDGEMNT informed them that she was having love affair with the appellant and the appellant used to call her, but she did not respond to his invitation and therefore, when she had gone to open space of house of Manubhai at about 7:00 a.m. on 1.6.2006, the appellant sprinkled kerosene on her body and set her ablaze. Santosh Chimanbhai - P.W.No.5 called 108 mobile van and thereafter, Anjuben was shifted to S.S.G. Hospital, Vadodara, where she disclosed the same facts to the doctor and at about 11:00 a.m. thereafter she expired.
3. Charge was framed against the accused at Ex.4 to which he pleaded not guilty.
4. The prosecution examined the following witnesses to bring home the guilt of the accused : Witness No. Ex. Name of witness 1 9 Bhailalbhai Mohanbhai Raval -
complainant.
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2 12 Sushilaben Bhailalbhai Raval -
mother of deceased.
3 31 Vijaybhai Chimanbhai Nizama -
independent witness.
4 32 Shankarbhai Ranchhodbhai Nizama -
independent witness.
5 33 Santoshbhai Chimanbhai Nizama
independent witness.
6 34 Sanjaybhai Jagdishbhai Raval
independent witness.
7 35 Dr.Pritesh Sunderlal Shah - medical
officer.
8 37 Dilipbhai Jagubhai Sorathiya -
investigating officer.
9 53 Dr.Sunil Bipinchandra Bhatt -
medical officer.
5. The prosecution in support of its case produced the following documentary evidence: Sr. No. Ex. Description of document 1 10 Complaint.
2 11 Receipt of handing over deadbody. 3 13 Report of Section 157 of the Criminal Procedure Code.
4 14 Panchnama of place of offence. 5 15 Inquest Panchnama.
6 16 Postmortem form.
7 17 Panchnama of search of house of accused.
8 18 Panchnama of person of accused. 9 19 Postmortem note.
10 20 Copy of case history.
11 21 Ravanginondh.
12 22 Receipt of FSL of muddamal. 13 23 FSL report.
14 24 Kachcha map of place of offence. Page 5 of 24
R/CR.A/484/2010 CAV JUDGEMNT
15 25 Yadi written to FSL officer to
visit place of offence.
16 26 Preliminary report of FSL officer.
17 27 Yadi handed over to P.S.O.
18 28 Yardhi of hospital.
19 29 Yadi written for postmortem.
20 30 Yadi given to Babubhai, P.S.O.
A.S.I.
21 36 Injury certificate of deceased
Anjuben.
22 38 Hospital vardhi dated 1.6.2009.
23 39 Letter written to Executive
Magistrate to fill inquest form of dead body.
24 40 Letter written to C.P.S.I. to hand over dead body to father of the deceased.
25 41 Letter of custody of dead body after postmortem.
26 42 Letter written to Medical Officer for search of person of accused. 27 43 Report of Jamnabhai Hospital of accused.
28 44 Letter written to Taluka Development Officer to prepare map of place of offence.
29 45 Letter written to give case history.
30 46 to Receipt sticked on muddamal. 52
6. The prosecution has examined witnesses, complainant, investigating officer, panchas, as well as inquest, panchnama of place of offence, panchnama of mudamal, medical expert opinion were produced.
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7. After prosecution evidence was over, further statement of the accused was recorded under Section 313 of Criminal Procedure Code. The accused had also submitted written explanation.
8. Bhailalbhai Mohanbhai Raval, P.W. No.1 at Ex.9 is the complainant and he in his examinationinchief deposed that, he is father of the deceased Anjuben. On the date of incident i.e. 1.6.2009 at 7 O'clock in the morning he went to attend nature's call, his wife went to purchase milk and his daughter - Anjuben was at home. When he returned to home after attending the nature's call, he saw his daughter - Anjuben in burning condition. The place of incident was open space adjoining to his residence. He is declared hostile. In the crossexamination, he has admitted that when he saw his daughter burning, at that time, he had seen the appellant Gemabhai Chandubhai Page 7 of 24 R/CR.A/484/2010 CAV JUDGEMNT Nizama running to his house and his daughter was shouting. It is admitted by him that out of Court they have settled the said issue. The complaint given by the complainant is produced at Ex.10. Thus, it appears that this witness has tried to help the accused.
9. In support of the prosecution case the prosecution has also examined Sushilaben Bhailal Raval, P.W. No.2 at Ex.12. She is wife of the complainant. She in her evidence has deposed that she was not present at the time of the incident. At about 7 O'clock when she returned to home after purchasing milk, she saw many people had gathered near her house and her daughter - Anjuben had received burn injuries. Thereafter 108 mobile van was called and Anjuben was shifted to Government hospital, where she was declared dead. In the crossexamination, this witness has denied the facts of the prosecution case.
10. The prosecution has examined Vijaybhai Page 8 of 24 R/CR.A/484/2010 CAV JUDGEMNT Chimanbhai Nizama, P.W. No.3 at Ex.31. He is declared hostile. The prosecution has also examined Shankarbhai Ranchhodbhai Nizama, P.W. No.4 at Ex.32. He is declared hostile and Santoshbhai Chimanbhai Nizama, P.W. No.5 at Ex.33, he is also declared hostile. Even in crossexamination of these witnesses made by the learned public prosecutor, the prosecution has failed to bring out any material document in support of the prosecution case.
11. Dr.Pritesh Sunderlal Shah, P.W. No.7 at Ex.35 in his evidence has deposed that he was present at S.S.G.Hospital, Vadodara, on 1.6.2009. At around 8:50 in the morning injured Anjuben was brought to the hospital. He had asked Anjuben regarding incident and she disclosed before him that on 1.6.2009 at around 7 O'clock at Singhrot, accused Gemabhai Chandubhai Nizama had sprinkled kerosene over her body and set her ablaze. Page 9 of 24
R/CR.A/484/2010 CAV JUDGEMNT When this witness examined and took her case history, she was conscious. She had burn injuries on face, stomach, back side and on both the hands and legs. For further treatment she was shifted to Surgery Department, where she expired during the treatment on 1.6.2009 at around 1:50 noon. Thereafter the dead body was sent for postmortem. Certificate Ex.36 is also issued by this witness. In crossexamination of this witness the defence has not made any question to this witness that what was actual condition of the deceased and whether she was able to speak or not. The case history given in the form of dying declaration before this witness is not challenged by the defence. The defence has failed to put any question to this witness in order to rebut his version. As per evidence of this witness, prosecution has produced vardhi Ex.28 given by A.S.I. of Raopura Police Station, Vadodara, on duty at hospital. From the contents of the said Page 10 of 24 R/CR.A/484/2010 CAV JUDGEMNT vardhi involvement of the accused in the offence in question is disclosed.
12. Prosecution has examined Dilipbhai Jagubhai Sorathiya, P.W. No.8 at Ex.37, Investigating Officer and he in his evidence has deposed that on 1.6.2009 he was on duty at Vadodara Taluka Police Station, he received vardhi Ex.28 from the A.S.I. on duty at hospital that Anjuben, daughter of Bhailalbhai is seriously burnt. She was brought to the hospital for treatment. It is proved by this witness that deceased Anjuben was thereafter shifted to emergency ward where she expired and complainant - father of the deceased had given complaint Ex.10. From the contents of the said vardhi involvement of the present appellant in the offence is disclosed. This witness has proved the contents of Ex.10 complaint and report Ex.13 given under Section 157 of the Criminal Procedure Code. He has carried out inquest Page 11 of 24 R/CR.A/484/2010 CAV JUDGEMNT panchnama of place of offence Ex.14 and 15. The dead body was shifted for postmortem and thereafter accused was arrested and panchnama of search of his house was carried out at Ex.17 and panchnama of person of accused was carried out at Ex.18. He received postmortem note Ex.20 and he prepared ravanginondh Ex.21. The muddamal was seized and sent to FSL for analysis. He prepared map of place of offence Ex.24. During the course of investigation FSL expert was called by vardhi Ex.25. Preliminary report prepared by the FSL officer is produced at Ex.26. The Executive Magistrate was called for recording dying declaration of Anjuben but before recording of the dying declaration Anjuben expired. In crossexamination of this witness the defence has put a suggestion that prior to visit of the Executive Magistrate deceased Anjuben expired. The defence has failed to establish its defence regarding the complaint and muddamal recovered from the place of offence. Page 12 of 24
R/CR.A/484/2010 CAV JUDGEMNT Even the defence has failed to contradict contents of deposition of doctor and the case history given by the deceased to the doctor.
13. Heard Mr.Vijay Patel, learned counsel for the appellant. He has contended that P.W.No.1 Bhailal Mohanlal Raval, father of the deceased at Ex.9 has clearly stated in his crossexamination that he did not know who had set ablaze his daughter Anjuben and he did not ask his daughter as to how she got burnt. He has also stated that he has given the name of the appellant on the basis of suspicion. He has contended that Dr.Pritesh Shah, P.W. No.7, examined at Ex.35, has deposed that the deceased informed him that on 1.6.2009 at about 7 O'clock in the morning the appellant sprinkled kerosene and lit the fire. He has contended that this witness has admitted in his crossexamination that he has not given treatment to the deceased. He has contended that the policeman is not examined Page 13 of 24 R/CR.A/484/2010 CAV JUDGEMNT as per Section 145 of the Evidence Act. He has contended that it was duty of the prosecution to prove the contents of the vardhi that person was required to be examined. He has read the case history given by the deceased before the doctor and contended that there are contradictions in the version of the deceased and therefore, dying declaration cannot be said as trustworthy and reliable.
14. On the other hand, learned APP Shri H.L.Jani vehemently relied on the oral evidence of the complainant and documentary evidence and panchnama and contended that the complainant Bhailal Mohanlal Raval was declared hostile but prior to declaring him hostile this witness has admitted the complaint Ex.10 given by him and thumb impression is also proved by him. He has read contents of complaint Ex.10 and contended that from the contents of the complaint, Page 14 of 24 R/CR.A/484/2010 CAV JUDGEMNT presence of the accused is proved at the place of offence. He has read Ex.28 vardhi and contended that Dy.A.S.I. Varshanbhai Goidabhai was informed by Dr.Pritesh Shah who is a doctor and a public servant. As per his instruction to the A.S.I. said Ex.28 vardhi was given. He has read contents of said vardhi and contended that from the said vardhi it is proved beyond reasonable doubt that present appellant - accused sprinkled kerosene over the body of the deceased and set her ablaze. He has also read contents of the medical certificate of the deceased issued by Dr.Pritesh and contended that name of the present accused is given by the deceased and thus involvement of the appellant and case history given by the deceased Anjuben is proved beyond reasonable doubt. He has read contents of the vardhi Ex.38 and contended that even in the second vardhi also role and name of the appellant is shown. He has read oral evidence of the Page 15 of 24 R/CR.A/484/2010 CAV JUDGEMNT P.W.No.7 and evidence of the Investigating Officer and contended that muddamal was recovered from the place of offence and was sent to FSL expert for analysis. He has drawn attention of the Court to Ex.23, report of the FSL and analysis of muddamal and contended that from the analysis report, soil recovered from the place of offence as well as from the clothes of the accused presence of the kerosene was found. He has further contended that as per circumstantial evidence and dying declaration made before the doctor it is trustworthy, reliable and acceptable and when defence has failed to prove its defence and therefore, the appeal be dismissed.
15. We have heard the learned counsel for the respective parties and gone through the materials produced before us. We have also considered the submissions advanced by the learned counsel for the rival parties. We Page 16 of 24 R/CR.A/484/2010 CAV JUDGEMNT have gone through the impugned judgment and order passed by the learned Judge and oral as well as documentary evidence produced on the record. It is true that P.W. No.1 - complainant, father of the deceased examined by the prosecution is declared hostile but prior to such declaration he has admitted complaint Ex.10 given by him. It is admitted by him that when his daughter Anjuben was burning he saw present appellant was running to his house. No doubt, other witnesses are declared hostile and they have not supported the case of the prosecution. We have minutely perused the complaint Ex.10 and oral evidence of the Dr.Pritesh P.W.No.7, who is an independent witness and public servant before whom deceased Anjuben disclosed that on 1.6.2009 at 7 O'clock appellant - accused sprinkled kerosene over her body and set her ablaze. From the evidence of the doctor, it has come out that when the doctor took the history, the deceased was conscious and she Page 17 of 24 R/CR.A/484/2010 CAV JUDGEMNT had burn injuries on face, stomach, back side and on both the hands and legs. In the present case, case history given by the deceased before the doctor is material evidence for the prosecution and involvement of the present appellant is shown by the deceased in her version before the doctor therefore it was the duty of the defence to come out from the said allegations made by the deceased in connection with the said offence, but the defence has failed to falsify the said oral dying declaration given by the deceased before the doctor by cross examining him.
16. The general principle on which this species of evidence is admitted that they are declarations made, when the party is at the point of death when every hope his word is gone, when every motive to falsehood is silenced, and the mind is induced by the most powerful considerations to speak the truth; a Page 18 of 24 R/CR.A/484/2010 CAV JUDGEMNT situation so solemn and so lawful is considered by the law as creating an obligation equal to that which is imposed by a positive oath administered in the Court of justice. The principle on which dying declaration admitted in evidence is indicated in legal maxim "nemo moriturus proesumitur mentiri, a man will not meet his maker with a lie in his mouth".
17. Section 32(1) relates to the statement made by a person before his death. Two categories of statements are made admissible in evidence and further made them as substantive evidence. They are; (1) his statement as to the cause of his death; (2) his statement as to any of the circumstances of the transaction which resulted in his death. The second category can envelope a far wider amplitude than the first category. The words "statement as to any of the circumstances" are by themselves capable of Page 19 of 24 R/CR.A/484/2010 CAV JUDGEMNT expanding the width and contours of the scope of admissibility. When the word "circumstances" is linked to "transaction which resulted in his death", the subsection casts the net in a very wide dimension. Anything which has a nexus with his death, proximate or distant, direct or indirect, can also fall within the purview of the sub section. As the possibility of getting the maker of the statements in flesh and blood has been closed once and for all, the endeavour should be how to include the statement of a dead person within the sweep of the subsection and not how to exclude it therefrom. Admissibility is the first step and once it is admitted the Court has to consider how far it is reliable. Once that test of reliability is found positive, the Court has to consider the utility of that statement in the particular case.
18. In the instant case during her case Page 20 of 24 R/CR.A/484/2010 CAV JUDGEMNT history the deceased has stated before the medical officer about the accused. She has told the medical officer that the accused had sprinkled kerosene over her body and set her ablaze. This fact is fortified by the deposition of the doctor wherein he has stated that while giving case history the deceased was in conscious state of mind. Thus, the case history given by the deceased before the medical officer as confirmed by the medical officer in his oral evidence proves the involvement of the accused in the instant case.
19. We have also considered report of the FSL expert. From the examination of the muddamal articles sent to the FSL and from the clothes of the accused, presence of the kerosene is found and it is not explained by the present appellant - accused by rebutting the same in crossexamination as well as in the statement recorded under Section 313 of Page 21 of 24 R/CR.A/484/2010 CAV JUDGEMNT the Criminal Procedure Code.
20. We have perused submission of learned counsel Mr.Patel with regard to vardhi given by Dy.A.S.I. Varshanbhai Goidabhai from the hospital is not examined. In support of that he relied on Section 145 of the Evidence Act. Shri Varshanbhai Goidabhai - Dy.A.S.I. was on duty at hospital and as part of duty as public servant the information given by P.W. No.7 Dr.Pritesh was noted down by him and it was sent to the Police Station. Section 35 of the Evidence Act is very clear that, an entry in any public or other official book, register or stating a fact in issue or relevant fact, and made by a public servant in the discharge of his official duty, or by any other person in performance of a duty specially enjoined by the law of the country in which such book, register is kept, is itself a relevant fact. Therefore, contention of Mr.Patel with regard to provisions of Page 22 of 24 R/CR.A/484/2010 CAV JUDGEMNT Section 145 of the Evidence Act cannot be considered.
21. In the result, the appellant - accused has failed to establish his case. We, therefore, do not find any error in the judgment and order of the learned trial Judge and we are in complete agreement with the findings arrived at by the learned trial Judge. There is no substance in the present appeal and the same is required to be dismissed.
22. The appeal of the appellant - accused is hereby dismissed. The judgment and order dated 10.2.2010 rendered by learned Additional Sessions Judge, Vadodara, in Sessions Case No.106 of 2009 is hereby confirmed. R & P to be transmitted to the trial Court.
(JAYANT PATEL, J.)
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(Z.K.SAIYED, J.)
KKS
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