Gujarat High Court
Chanabhai Karshanbhai Borasia & 2 vs State Of ... on 27 January, 2015
Author: Z.K.Saiyed
Bench: Z.K.Saiyed
R/CR.A/539/2010 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL APPEAL NO. 539 of 2010
FOR APPROVAL AND SIGNATURE:
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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CHANABHAI KARSHANBHAI BORASIA & 2....Appellant(s)
Versus
STATE OF GUJARAT....Opponent(s)/Respondent(s)
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Appearance:
MR BP TRIVEDI, ADVOCATE for the Appellant(s) No. 1 - 3
MR P P MAJMUDAR, ADVOCATE for the Appellant(s) No. 1 - 3
MR RR TRIVEDI, ADVOCATE for the Appellant(s) No. 1 - 3
MR. HARDIK SONI, APP, for the Opponent(s)/Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE Z.K.SAIYED
Date : 27/01/2015
ORAL JUDGMENT
[1] The present conviction Appeal has been filed by the appellants-original, under Section 374 of the Cr. P.C., against the Judgment and order dated 17.02.2010 Page 1 of 15 R/CR.A/539/2010 JUDGMENT rendered by the learned District and Sessions Judge, Porbandar, in Sessions Case No.20 of 2009, whereby the appellants-accused were convicted for the offences punishable under Sections 304-Part-II and 114 of the Indian Penal Code and sentenced to undergo 10 years rigorous imprisonment with fine of Rs.5,000/-, in default of payment of fine, further rigorous imprisonment of 1 year and for the offence punishable under Sections 452 and 114 of IPC and sentenced to undergo 3 years rigorous imprisonment with fine of Rs.1,000/-, in default of payment of fine, further rigorous imprisonment of 3 months. All the appellants-accused were acquitted from the charges under Section-302 of IPC.
[2] According to the prosecution case, on 26.06.2006, Mr.Dilip Shivshankar Viyas was in charge of police Station Officer at Porbandar Udyognagar Police Station, at that time at about 10 p.m., Dr. Modha Medical Officer, Bhavshinji Hospital, Porbandar gave a telephonic message that one Shantiben Bhimabhai, aged about 14 years, brought to the hospital for treatment, and she sustained burn injuries. The said message was reduced into station diary vide entry No.81 of 2006 and investigation was handed over to ASI Shri K.V.Kodiatar. Shri Kodiatar went to the hospital and inquired about the injured girl. The injured girl gave first information report to Shri Kodiatar that her uncle Chana Karsan, her aunt Maniben and Munna Savdas poured kerosene on her and ablaze her and hence, she sustained burn injuries. ASI, Kodiatar recorded Page 2 of 15 R/CR.A/539/2010 JUDGMENT the FIR and obtained her thump impression and sent it to the Police Station fore registration, which was registered as C.R.No.I-53 of 2006 against the appellants-accused for the offences punishable under Sections-307 and 114 of the Indian Penal Code. Thereafter, the investigation was handed over to Shri M.V.Chauhan, ASI. Since injured was in serious condition, the Executive Magistrate was called to record her dying declaration, who recorded her dying declaration. In the said dying declaration, she stated that her uncle Chana Karsan, her aunt Maniben and Munna Savdas poured kerosene on her and set ablaze her. Thereafter, the investigation was carried out and all the accused were arrested and sent to the judicial custody. During the investigation, on 02.07.2006, injured Shatiben died due to Septicemia and therefore, offence under Section-302 of IPC was added in the FIR. All the appellants-accused were released on bail by the Sessions Court, Porbandar. Panchnama of place of offence was drawn and muddamal were seized from the place of offence. In the present of FSL Officers, panchnama of body of the deceased was also drawn and clothes of the deceased were seized. Yadi was sent to Medical Officer, Porbandar. Yadi to record the dying declaration was sent to the Executive Magistrate. Copy of the dying declaration was attached with the investigation papers. Then Post- mortem was carried out and arrest panchhnama of the accused was drawn. Then, report of the FSL obtained and after collecting the evidence and recording the statements Page 3 of 15 R/CR.A/539/2010 JUDGMENT of the witnesses, charge-sheet was filed against the appellants-accused before the learned Chief Judicial Magistrate, Porbandar for the offences punishable under Sections 302, 452 and 114 of IPC, which was registered as Criminal Case No.7321 of 2006. As the said case was exclusively triable by the Court of Sessions, learned Chief Judicial Magistrate, Porbandar, committed the case to learned District and Sessions Judge, Porbandar, which was thereafter, numbered as Sessions Case No.20 of 2009.
[3] On the basis of above allegations, charge was framed against the appellants-accused vide Exh.3 and read-over and explained to the appellants-accused for the offences punishable under Sections 302, 452 and 114 of IPC. Then plea was recorded, wherein, appellants-accused pleaded not guilty to the charge and claimed to be tried.
[4] In support of the prosecution case, prosecution has examined following oral evidences :-
Sr. Exh. Name of Witness No. 1 10 Panch-Inayat Mahamad 2 12 Panch Kamleshbhai Sarmanbhai Chudasma 3 13 Panch Malde Karsanbhai Bhutia 4 15 Panch Deepakbhai Parbatbhai 5 17 Panch Kalabhai Dudabhai 6 19 Panch Parbatbhai Chanabhai 7 20 Panch Nagabhai Dhanabhai Ranavaya Page 4 of 15 R/CR.A/539/2010 JUDGMENT 8 22 Karsanbhai Virabhai Kodiyatar 9 25 Bakulbhyai Madurbhai Atara 10 28 Dr. Kalpesh Kantilal Lukka 11 32 Dr. Vipul Nanalal Modha 12 37 Dr. Rajendra Jivrajbhai Makwana 13 46 Rameshbhai Karshanbhai 14 47 Lali @ Lalitaben W/o. Bhimabhai 15 48 Dilip Shivshankar Vyas 16 62 N.B. Chavda 17 63 V.M. Gohil [5] In support of the prosecution case, the prosecution has produced several documentary evidences like panchnama of place of incident at Exh.11, panchnama of articles seized from the place of incident at Exh.14 and FIR at Exh.24 etc. [6] Thereafter, after filing closing pursis by the prosecution, further statement of appellants-accused under Section 313 of the Code of Criminal Procedure, 1973 was recorded, wherein, it is admitted by the appellants-
accused that they were innocent and they have not committed any offence and were wrongly charge-sheeted. The appellants-accused have denied the case of the prosecution and submitted that a false case is filed against them.
[7] After considering the oral as well as documentary evidence and after hearing the parties, learned District Page 5 of 15 R/CR.A/539/2010 JUDGMENT and Sessions Judge, Porbandar vide impugned judgment and order dated 17.02.2010 held the appellants-accused guilty to the charges levelled against them under Sections 304 Part-II, 452 and 114 of the IPC, and convicted and sentenced the appellants-accused, as stated above.
[8] Being aggrieved by and dissatisfied with the impugned judgment and order of conviction and sentence passed by the learned District and Sessions Judge, Porbandar, the present appellants-accused have preferred this appeal.
[9] Heard Mr.P.P.Majmudar, learned advocate for the appellants-accused and Mr.Hardik Soni, learned Additional Public Prosecutor for the respondent-State.
[10] Mr.P.P.Majmudar, learned advocate for the appellants-accused read charge at Exh.3 and contended that the allegations made against the appellants-accused are concocted story got up by the witnesses of the prosecution. He further contended that both the dying declarations recorded by the Police Office (complaint at Exh.24) and Executive Magistrate (Exh.27) are on record and if the case of the prosecution is based on the facts of the dying declarations, contents of the same must be proved beyond reasonable doubt and must be trustworthy, acceptable and reliable. Mr.Majmudar, further contended that statement made before the Police Office by the victim creates sufficient contradiction. Even in cross-examination also, defence already established that complaint at Exh.24 and dying declarations recorded by PW-9-Bakulbhai Madhubhai Atara, Executive Magistrate at Page 6 of 15 R/CR.A/539/2010 JUDGMENT Exh.25, create sufficient contradiction and defence could establish that both the documents are not trustworthy, acceptable and reliable and therefore, the learned trial Judge has wrongly convicted the present appellants- accused.
[11] Mr.Majmudar, then contended that in dying declaration made before the Executive Magistrate, name of only two appellants-accused are shown. He read the evidence of uncle-Rameshbhai Karshanbhai-PW-13, who was examined at Exh.46 and contended that evidence of this witness was required to be considered before declaring him hostile. He argued that when prima-facie case is not proved beyond reasonable doubt against the appellants-accused, judgment and order of conviction is required to be set aside. Mr.Majmudar, further contended that all the appellants-accused are relatives of the witnesses of the prosecution and therefore, he prayed to reduce the sentence imposed by the learned trial Judge and also to consider the undergone period, as the appellants-accused are in jail since long period. Lastly, he prayed to set aside the judgment and order of conviction passed by the learned trial Judge.
[12] Per contra, Mr.Hardik Soni, learned APP, contended that this is a clear case of murder, but learned trial Judge has not considered the offence under Section-302 of IPC and wrongly acquitted the appellants-accused from the said alleged offence. He further contended that at the time of incident, when the deceased was shifted to the Page 7 of 15 R/CR.A/539/2010 JUDGMENT hospital by her relatives, doctor informed Porbandar Police Station by telephonic message, and in result of that, police rushed to the hospital and complaint lodged by the deceased herself. He read the contents of the complaint and argued that the complaint itself shows that with common intention, appellants-accused came to the house of the deceased and because of some quarrel took place, her uncle Chana Karsan, her aunt Maniben and Munna Savdas poured kerosene on her and set her on fire and thereafter, ran away. On shouting by the victim, her father and uncle came there and shifted her to hospital. He next contended that thumb impression of the deceased- Shantiben was also obtained. He read the oral evidence of PW-9-Bakulbhai Madhubhai Atara, Executive Magistrate at Exh.25 and contents of Exh.27 and contended that in the said dying declaration, the deceased disclosed that on 25.06.2006 at about 11:00, her aunt Maniben and Munna Savdas came to her house and by pouring kerosene on her, tried to take her life and thereby, they committed an offence of murder. He drew attention of the Court to endorsement made by the doctor that 'patient is conscious'. He read time of the dying declaration which was tarted at 14.05 and completed at 14:15. He, therefore, contended that from the contents of the dying declaration, it is established and proved beyond reasonable doubt to say that all the appellants-accused were present at the place of offence and with their common intention, poured kerosene on the deceased and Page 8 of 15 R/CR.A/539/2010 JUDGMENT set her on fire. He further contended that when the contents of the dying declaration are trustworthy, reliable and acceptable, learned trial Judge has rightly convicted the appellants-accused and he has not committed any grave error. Lastly, he prayed to dismiss the appeal.
[13] I have perused the documentary as well as oral evidence produced on record. Looking to facts of the prosecution case, this is only a case of evidence, which is disclosed by the deceased in form of dying declaration. First dying declaration made by the deceased before ASI Udhyognagar Police Station, Porbandar which is at Exh.24- complaint and second dying declaration made by the deceased before the Executive Magistrate PW-9-Bakulbhai Madhubhai Atara, recorded at Exh.25. Mr.Majmudar, learned advocate read the evidence of mother and uncle and rightly contended that both the witnesses are relatives, but they did not come before the Court to disclose the factum of the case and did not support the case of the prosecution. Mr.Majmudar, read the evidence of PW-13 witness-Rameshbhai Karsanbhai and PW-14- witness-Lali @ Lalitaben. He further read the evidence of panch witnesses i.e. PW-1 to PW-7 and contended that contents of the panchnama are not supported through oral versions of the panch witnesses and therefore, the contents of panchnama is not proved. I have minutely perused the documentary evidence produced on record, which is also supported by the evidence of Investigating Officer. It is true that from the evidence of panchas, Page 9 of 15 R/CR.A/539/2010 JUDGMENT defence has right to say that contradictory evidence is produced on record, but the present case is totally based upon the documentary evidence in form of dying declaration made by the deceased herself. First of all, complaint which is produced at Exh.24, is supported by the oral evidence of the police witness-Karshanbhai Virabhai Kodiyatar-PW-8, who was examined at Exh.22. From the cross-examination of this witness, defence could not establish that this witness created false and concocted story of the prosecution against the contents of the complaint at Exh.24 as disclosed by the deceased. It is required to be noted here that PW-8 is a ASI of Porbandar Police Station and thumb impression of the deceased was also obtained by this witness, therefore, it cannot be said that the contents of the complaint was concocted. In support of the complaint given by the deceased at Exh.24, PW-9 Bakulbhai Madhubhai Atara, Executive Magistrate's evidence is also required to be considered. It is true that as per the complaint, Executive Magistrate recorded the dying declaration at Exh.27. He verified endorsement made by the doctor that 'patient is conscious' and he also made the same endorsement at Exh.27-dying declaration. In the dying declaration recorded at Exh.27, the deceased disclosed the role of the appellants-accused and stated that they tried to take her life and thereby, she sustained burn injuries.
[13.1] It is true that Mr.Majmudar, who has argued that in dying declaration recorded by the Executive Magistrate at Page 10 of 15 R/CR.A/539/2010 JUDGMENT Exh.27, names of only two appellants-accused are stated, which shows the major contradiction created by the deceased herself and it is also prima-facie established that the said dying declaration at Exh.27 is not trustworthy, acceptable and reliable. For the purpose, I have minutely perused the contents of Exh.27 with Exh.24. It is true that in Exh.27, one of the name of the appellants-accused is not stated by the deceased, but it is fully supported by the contents of FIR at Exh.24 and looking to the endorsement made by PSO, complaint was recorded at 3:45 on 26.06.2006 and dying declaration was started at 14:05 and completed at 14:15. I have also perused the evidence of the Medical Expert doctor, Kalpesh Kantilal Lukka, who was examined at Exh.28, who disclosed the injuries at column No.17 and further stated that the deceased was about 14 years old. I have also minutely perused the post- mortem note produced at Exh.31. Further, as per this witness, deceased sustained about 55 to 60% burn injuries and cause of death is cardio-respiratory failure because of septicemia due to burns. He further disclosed that on 26.06.2006, when Executive Magistrate, Porbandar came to the hospital, at that time, he was serving as Medical Officer and after verifying the mental condition of the deceased and giving certificate to that effect, dying declaration was recorded by the Executive Magistrate and he also identified his handwriting.
[13.2] Mr.Majmudar, who has argued at length that some injections namely Fotvirn and Dyclophin were given to the Page 11 of 15 R/CR.A/539/2010 JUDGMENT injured and due to the influence of the said injections, the victim could not speak properly and when dying declaration recorded by the Executive Magistrate under the influence of medicines and injections, it cannot be considered that at the time of recording of the dying declaration, she was in conscious mind. I have minutely compared the evidence of the Executive Magistrate with the evidence of doctor, who examined her and confirmed the contents of the dying declaration that at the time of recording of the dying declaration, the victim was totally conscious and was able to speak properly. In result of that consciousness, question was asked by the Executive Magistrate to the deceased and the same was produced on record in form of dying declaration. Now, looking to the above observation, a question raised against the appellants-accused that whether both the dying declarations are trustworthy, reliable and acceptable or not? In reply of the same, I have minutely considered the evidence of the Executive Magistrate and Police Officer, which are same in nature.
[13.3] Mr.Majmudar, learned advocate relied upon in the case of Surindar Kumar V/s. State of Haryana reported in 2012 (1) GLJ 658. Relevant part of which reads as under:-
"Evidence Act, 1872-S.32-Dying Declaration- Dying Declaration did not carry certificate by executive Magistrate to the effect that it was a voluntary statement made by the deceased and was read over to the deponent-Dying Declaration was not even attested by the doctor-Magistrate Page 12 of 15 R/CR.A/539/2010 JUDGMENT has stated that the statement has been made dialect of Hindi and Punjabi, but it was recorded, in Hindi-Deceased was under influence of Fortwin and Pehidine injections-The deceased suffered from 97% burn injuries and she was under
constant sedatives-Dying Declaration is not reliable-Dying Declaration suffers from infirmities- Conviction cannot be relied on such Dying Declaration."
So, as far as the consciousness of the deceased is concerned, the same was not certified by doctor and in respect of the observations made by the Apex Court, learned trial Judge has wrongly considered the dying declarations as trustworthy, acceptable and reliable. Mr. Majmudar, also drew attention to another decision of Apex Court rendered in the case of State of Rajasthan V/s. Shravan Ram and another, reported in, AIR 2013 SC 1890 and contended that the deceased, who narrated the incident before the Police Officer, did not name the person, who set her on fire.
[13.4] I have minutely perused the observations of the Apex Court in both the above citations.
[13.5] First of all, Mr.Majmudar, drew attention to the contents at Exh.24. It would be appropriate to refer to the case of Dharam Pal V/s. State of UP reported in 2008 CrLJ 1016(1021) (SC), wherein, it is observed that "where the report of occurrence was dictated by the deceased himself and the same was read over to him after which he had put thumb impression on the same. This report is admissible under Section-32 of the Evidence Page 13 of 15 R/CR.A/539/2010 JUDGMENT Act as a dying declaration"
Hence, the dying declaration is supported by the Police Officer, who recorded the complaint at Exh.24. The complaint at Exh.24 is recorded by the police and dying declaration recorded by the Police-Sub-Inspector are admissible and can be made basis for conviction, is the observation made by the Hon'ble Court in the case of Ramavati Devi V/s. State of Bihar, reported in AIR 1983 SC 164.
It is observed by the Apex Court in the case of Betal Singh V/s. State of M.P, reported in, AIR 1986 2770 that legal position remains unaltered that dying declaration should be scrutinized very carefully and if the Court is satisfied after such scrutiny that the dying declaration was true and was free from any effort to prompt the deceased to make such a statement and is coherent and consistent, there is no legal impediment in founding the conviction.
[13.6] It is significant to note that in the cross- examination of the witnesses to prove the dying declaration, no question was asked regarding the health of the deceased. In this regard, a respectful reference may be made to the judgment of the Apex Court in the case of Hiraman V/s. State of Bihar, reported in, (2013) 12 SCC 586. The facts of the above case squarely applicable to the present case.
[13.7] In view of the observations made above, the Page 14 of 15 R/CR.A/539/2010 JUDGMENT defence failed to establish that both the dying declarations are not trustworthy, acceptable and reliable. From the evidence of doctor, Executive Magistrate and ASI, it is prima-facie established that dying declaration at Exh.24 and 27 are trustworthy, acceptable and reliable. The learned trial Judge has rightly observed that case of the prosecution is proved beyond reasonable doubt against the appellants-accused. At the last, Mr. Majmudar, learned advocate, requested the Court to show mercy to appellants-accused. But looking to the heinous offence committed by the present appellants-accused, the Court is not inclined to consider the said request. In the result, I am in full agreement with the judgment and order of conviction of the learned Trial Court.
[14] In the result, this appeal is dismissed. The impugned judgment and order of conviction and sentence dated 17.02.2010 rendered by the learned District and Sessions Judge, Porbandar, in Sessions Case No.20 of 2009, is hereby confirmed. Bail bond, if any, stands cancelled. R & P to be sent back to the trial Court, forthwith.
(Z.K.SAIYED, J.) siddharth Page 15 of 15