Gujarat High Court
Jashwantpuri Jayantipuri vs State Of on 29 August, 2013
Bench: Ks Jhaveri, K.J.Thaker
JASHWANTPURI JAYANTIPURI GOSWAMIV/SSTATE OF GUJARAT....Opponent(s)/Respondent(s) R/CR.A/1044/2007 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL NO. 1044 of 2007 FOR APPROVAL AND SIGNATURE: HONOURABLE MR.JUSTICE KS JHAVERI and HONOURABLE MR.JUSTICE K.J.THAKER ================================================================ 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 ? ================================================================ JASHWANTPURI JAYANTIPURI GOSWAMI & 1....Appellant(s) Versus STATE OF GUJARAT....Opponent(s)/Respondent(s) ================================================================ Appearance: MR NIRUPAM NANAVATY, SENIOR COUNSEL WITH MR ND BUCH FOR NANAVATY ADVOCATES, ADVOCATE for the Appellant(s) No. 1 - 2 MR KP RAWAL, ADDL PUBLIC PROSECUTOR for the Opponent(s)/Respondent(s) No. 1 ================================================================ CORAM: HONOURABLE MR.JUSTICE KS JHAVERI and HONOURABLE MR.JUSTICE K.J.THAKER Date : 29/08/2013 ORAL JUDGMENT
(PER : HONOURABLE MR.JUSTICE KS JHAVERI)
1. The appellants have been found guilty of commission of offence under Section 302, 143, 114, 341, 149, 147 & 148 of Indian Penal Code and have been awarded life imprisonment and fine of Rs. 1000/- each, in default, simple imprisonment for one month for the offence under sections 302, 149 and 114 of Indian Penal Code whereas for each of the offences under sections 341, 143, 147 and 148 of Indian Penal Code, the appellants are ordered to undergo rigorous imprisonment for one month and to pay fine of Rs. 100/- each, in default, to undergo simple imprisonment for seven days by learned Presiding Officer, Fast Track Court No. 3, Vadodara vide judgement and order dated 04.06.2007 passed in Sessions Case No. 195 of 2004. The sentences were ordered to run concurrently. The appellants were, however, acquitted for the offence under Sections 498-A and 450 of Indian Penal Code.
2. The gist of the prosecution story is mentioned hereinbelow:-
2.1 An FIR came to be lodged on 16.06.2004 by one Ratansinh Vaghajibhai Patel, who at the relevant point of time was on duty at SSG hospital wherein it was mentioned that a vardhi was received at 1615 hours from Dr. GA Patel whereby it was mentioned that the deceased namely Kalpanaben @ Bhavnaben Jitendrapuri Goswami was brought to SSG Hospital by her father pursuant to an incident where she got burnt. It is alleged that at about 10.30 am on the date of incident, due to some dispute of property, the mother-in-law of the deceased (original accused no. 1) caught hold of the deceased and the present appellant no. 1 (original accused no. 4) poured kerosene on her whereas present appellant no. 2 (original accused no. 3) set her ablaze. She received burns on her chest, abdomen and hands. She succumbed to the burn injuries during treatment.
2.2 The appellants were apprehended and after investigation charge sheet was submitted before the court of competent jurisdiction which was committed to the Court of Sessions and the same was registered as Sessions Case No. 195 of 2004.
2.3 The trial was initiated against all the accused and during the course of trial the prosecution examined the following witnesses:
P.W. 1 Ratansinh Vaghjibhai Patel Ex. 34 P.W. 2 Giteshgir Govindgir Goswami Ex. 38 P.W. 3 Dashrathbhai Rathwa Ex. 43 P.W. 4 Vinubhai Padhiyar Ex. 47 P.W. 5 Shivabhai Patel Ex. 55 P.W. 6 Dr. Ashokbhai Mahajan Ex. 69 P.W. 7 Dr. Omprakash Meena Ex. 79 P.W. 8 Bhupendrabhai Bariya Ex. 85 P.W. 9 Champakgiri Motigiri Gosai Ex. 98 P.W. 10 Bhupendragir Gosai Ex. 17 P.W. 11 Jashodaben Gosai Ex. 112 P.W. 12 Jivabhai Parmar Ex. 123 2.4 The prosecution also exhibited the following documents:
Vardhi Ex. 45 Special Report Ex. 46 Yadi to Executive Magistrate Ex. 87 Treatment certificate Ex. 80 Panchnama of scene of offence Ex. 51 Panchnama of body condition of Ambaben, Savitriben and Prafullaben Ex. 53 Panchnama of body condition of Jashvantpuri and Jayantpuri Ex. 56 Inquest panchnama Ex. 30 Police report Ex. 127 Letter for conducting post mortem Ex. 70 PM Report Ex. 72 Muddamal dispatch note Ex. 123 Muddamal receipt Ex. 125 FSL Report Ex. 126 Yadi Ex. 171 Yadi for giving certificate Ex. 174 Yadi to delete section 143 from FIR Ex. 175 Report to Civil Surgeon Ex. 127 Receipt of handing over dead body Ex. 176 Yadi for adding section 302 in FIR Ex. 177 Yadi for addition in FIR Ex. 178 Muddamal dispatch note Ex. 124 Receipt Ex. 125 FSL Report Ex. 126 Letter for conducting inquest Ex. 179 2.5 The
defence also examined the following two witnesses :
D.W. 1 Sonal A Patel Ex. 148 D.W. 2 Mayaben Patel Ex. 151 2.6 At the end of the trial and after recording the statement of the accused under section 313 of Cr.P.C., and hearing arguments on behalf of prosecution and the defence, the learned Additional Sessions Judge convicted the appellants as mentioned aforesaid.
Being aggrieved by and dissatisfied with the aforesaid judgement and order passed by the Sessions Court the appellants have preferred the present appeal.
3. Mr. Nirupam Nanavati, learned Senior Counsel assisted by Mr. N.D. Buch for the appellants submitted that the prosecution has completely failed to prove its case beyond reasonable doubt upon the strength of witnesses examined and documents exhibited.
3.1 Mr. Nanavati contended that there are serious lapses and lacuna in the prosecution case inasmuch as the prosecution has miserably failed to prove whether the death of the deceased was suicidal or homicidal. He submitted that the Investigating Officer has not attempted to prove that the accused were in any way related to the deceased. No motive or intention or even the knowledge of the present appellants is proved coupled with the fact that even the presence of appellants at the scene of offence is not proved and therefore the impugned judgement and order deserves to be quashed and set aside.
3.2 Mr. Nanavati submitted that the crucial witness namely the doctor who treated the deceased was not examined by the prosecution. The statements of the husband of deceased and other witnesses such as Mayaben, Jayshreeben, domestic help Sitaben and other persons who had reached the scene of offence immediately and who had some clue about the incident were not recorded by the prosecution.
3.3 Mr. Nanavati further contended that the genesis of the alleged offence has not come on record. He submitted that it has come on record that there was some dispute in respect of some land because of which the husband of the deceased had to travel a longer way to his field. He submitted that however the appellants have nothing to do with the family disputes of the deceased and have been falsely roped in the present case.
3.4 Mr. Nanavati further submitted that there are serious lapses in the medical history given before the doctor wherein the name of accused no. 2 is replaced by accused no. 3 and no explanation in this regard has come on record. He submitted that in view of the evidence of two witnesses which are not referred by the trial court, it has been brought on record that this is a case of suicide. He submitted that in fact as per the statements made by the accused they were not present at the scene of offence.
3.5 Mr. Nanavati submitted that prosecution case mainly hinges upon the dying declaration alleged to have been recorded before the Deputy Mamlatdar (P.W. 8). The prosecution has further tried to corroborate the factum of dying declaration with circumstantial evidence, however, there has been material contradictions amongst the evidence inter se. He further submitted that there are many improvements in the versions of the witnesses during the course of trial and therefore none of the witnesses adduced trust worthy evidence.
3.6 Mr. Nanavati submitted that another glaring aspect which is required to be considered is that the prosecution failed to examine one Varsha. He submitted that the deceased in her dying declaration states that her brother-in-law Devendragiri s daughter Varsha informed the parents of the deceased. The father of deceased (P.W. 9) states that the said Varsha telephoned his neighbour namely Dineshbhai Patel who in turn informed the deceased s father, another daughter and son-in-law and his son. He submitted that it is surprising to note that the said Devendragiri, Dinesh Patel or Varsha who at some places is referred to as Anita are not examined by the prosecution.
3.7 Mr. Nanavati has drawn the attention of this Court to the panchnama of scene of offence Ex. 51 and submitted that the said panchnama does not show the presence of kerosene in the room and is also silent in respect of any marks on the wall of the room. Further the articles inside the house were in tact and not scattered. He submitted that the panchnama thus clarifies that the allegations levelled in the dying declaration are completely baseless.
3.8 Mr. Nanavati submitted that as far as appellant no. 2 is concerned, she deserves to be granted benefit of doubt considering the lacunae in the prosecution case. He submitted that as far as appellant no. 1 is concerned, if the first part of the arguments is not accepted by this Court, in the alternative, without prejudice to the submissions made hereinabove, considering the medical evidence and the fact that the deceased had survived for around 7 to 8 days after the incident coupled with the fact that the prosecution case is hit by serious lapses, contradictions and infirmities, the Court may consider the case of the appellant no. 1 under section 304 (Part I) of Indian Penal Code.
3.9 In support of his submissions, Mr. Nanavati has relied upon the following decisions of the Apex Court:
Uka Ram vs. State of Rajasthan reported in (2001) 5 SCC 254;
Brundaban Mohrana and Another vs. State of Orissa reported in (2010) 13 SCC 381;
Sharda vs. State of Rajasthan reported in (2010) 2 SCC 85;
P. Mani vs. State of T.N. reported in (2006) 3 SCC 161;
Maniben vs. State of Gujarat reported in (2009) 8 SCC 796;
State of Rajasthan vs. Santosh Savita reported in 2013(10) SCALE 182;
B.N. Kavatakar and Another vs. State of Karnataka reported in 1994 Supp (1) SCC 304;
4. Mr. K.P. Rawal, learned APP appearing for the respondent State has supported the order of the trial court and has submitted that the trial court has gone into the evidence in detail and has come to the conclusion that the appellant is guilty of the offence so convicted of. He has submitted that considering the barbaric act committed by the appellants, the trial court has rightly convicted the appellants. He also submitted that the sentence imposed upon the appellants is just and proper and does not deserve to be reduced or quashed.
Mr. Rawal submitted that going by the contents in the Vardhi, dying declaration and the complaint, it is amply clear that the accused-appellants are guilty of the offence charged against them. He further submitted that the dying declaration recorded by the Executive Magistrate is in accordance with law. He submitted that the presence of accused at the scene of offence is proved beyond reasonable doubt. Mr. Rawal, was however, not in a position to explain the document which has been produced vide mark 170 & 170/1.
Mr. Rawal has submitted that though there may be minor variations in the narration of the incident, the fact that the appellants had set her on fire is borne out from the dying declarations and this fact cannot be lost sight of. He submitted that the opinion of doctor was taken before recording the dying declaration as can be seen from the endorsement which is enough to show that the deceased was in a fit state of mind. He submitted that the minor variation cannot prove fatal to the case of the prosecution. Mr. Rawal has relied upon a decision of the Apex Court in the case of Krishan vs. State of Haryana reported in (2013) 3 SCC 280.
The main question that arises for consideration in this appeal is whether the dying declaration of the deceased inspires confidence to sustain conviction of appellants. It has neither been disputed before this Court or before the trial court that deceased had received about 30 to 35 % burn injuries. This even otherwise stands proved from the post-mortem report Ex. 72 which mentions the cause of death as Septicemia following burns and its complications.
6. In the history recorded before the doctor at Primary Health Centre, Sandhasal, Savli the deceased had stated that she was set on fire by her family members and that her clothes were changed before being brought to hospital. In the present case the dying declaration Ex. 88 is recorded by P.W. 8, Bhupendrabhai Bariya after due endorsement regarding fitness of the deceased by the doctor at SSG Hospital, Vadodara.
7. P.W. 8, Shri Bhupendrabhai Bariya is the Executive Magistrate who had recorded the dying declaration of the victim on 16.05.2004. He has deposed that pursuant to the yadi received by him from PSI, Pandu police station he went to SSG Hospital, Vadodara to record the statement of the victim. He has stated that the deceased had mentioned that the incident happened as she had had a fight with her mother-in-law and therefore original accused nos. 3, 4 & 5 along with other accused set her on fire. She has mentioned in detail that original accused nos. 1 & 2 caught hold of her, original accused no. 4 poured kerosene over her and original accused no. 3 and set her on fire by igniting match stick. She further stated in the dying declaration that all of them fled from the scene of offence and thereafter the deceased poured water on herself and waited outside the house. Thereafter, her brother-in-law Devendrapuri s daughter informed her parents and sister as well as brother-in-law (sister s husband) who reached her place and took her to hospital. The endorsement by the doctor regarding the fitness of the patient was taken on the Vardhi received by this witness.
8. In the case of Gopal vs. State of Madhya Pradesh reported in (2009) 12 SCC 600, the Apex Court in para 13 has observed as under:
13. Law relating to appreciation of evidence in the form of more than one dying declaration is well settled. Accordingly, it is not the plurality of the dying declarations but the reliability thereof that adds weight to the prosecution case. If a dying declaration is found to be voluntary, reliable and made in fit mental condition, it can be relied upon without any corroboration. The statement should be consistent throughout. If the deceased had several opportunities of making such dying declarations, that is to say, if there is more than one dying declaration they should be consistent. However, if some inconsistencies are noticed between one dying declaration and the other, the court has to examine the nature of the inconsistencies, namely, whether they are material or not. While scrutinising the contents of various dying declarations, in such a situation, the court has to examine the same in the light of the various surrounding facts and circumstances.
8.1 In the case of Shudhakar vs. State of Madhya Pradesh reported in (2012) 7 SCC 569, the Apex Court has held that a dying declaration is the last statement made by a person at a stage when he is in serious apprehension of his death and expects no chances of his survival. At such time, it is expected that a person will speak the truth and only the truth and that normally in such situations, courts attach intrinsic value of truthfulness to such statement. It is also held that once such statement has been made voluntarily, it is reliable and is not an attempt by deceased to cover up truth or falsely implicate a person, then courts can safely rely on such dying declaration and it can form the basis of conviction, more so where version given by other prosecution evidence, there is no reason for courts to doubt truthfulness of such dying declaration.
9. As far as the veracity of the dying declaration before the Executive Magistrate is concerned, it is required to be noted that the Executive Magistrate in his deposition has clearly mentioned that the deceased was conscious while recording the declaration and the endorsement of the doctor regarding the fitness of the patient was also taken before and after recording of the statement. He stated that the deceased answered his questions and also appended her signatures after the procedure was over at around 08.05 pm. The dying declaration had been recorded in accordance with the established practice and procedures. To its correctness and authenticity, there can hardly be any challenge.
10. It shall not be out of place to mention that the courts have to be on guard to see that the dying declaration is not the result of either tutoring or prompting or a product of imagination and that due care and caution must be exercised in considering weight to be given to the dying declaration. Therefore it is required to be seen whether the contents of the dying declaration inspire any confidence so as to convict the present appellants.
11. P.W. 9 Champakgiri Motigiri Gosai has filed the complaint. This witness in his deposition has stated that on 16.06.2004 he received a phone call from the daughter of the brother in-law of the deceased that his daughter deceased had sustained burn injuries. She was taken to hospital in an autorickshaw where she was treated. He has deposed that when the doctor inquired about the incident she mentioned that original accused no. 1 & 2 had caught her and original accused no. 4 poured kerosene on her and original accused no. 3 set her on fire. It is stated that she also mentioned that original accused no. 4 shouted that she be burnt so that they can have peace of mind. Thereafter, they closed the door and ran away. He has deposed that thereafter the deceased herself doused the fire with the help of water and on the daughter of the deceased s brother-in-law arriving there, she was asked to inform the deceased s parents.
11.1 P.W. 10, Bhupendragiri Gosai is the brother of the deceased. He has stated that he received information about the injuries sustained by her sister from his father and therefore he immediately rushed to the house of deceased and took her to SSG hospital in an autorickshaw. She was unconscious and therefore was being treated. He has deposed that when she regained consciousness, they were asked to wait outside the room and thereafter his father had informed him that the deceased had stated before some person that the original accused had committed the said offence.
11.2 P.W. 11, Jashodaben Gosai is the mother of the deceased. She has reiterated the facts as mentioned by P.W. 10 that they received telephonic information about the burns of the deceased and that thereafter P.W. 10 and deceased s sister rushed to her house and brought her to SSG hospital where she was not conscious. Thereafter, on gaining consciousness she had given her statement wherein she has mentioned the role of the original accused. Nothing incriminating has been found from the evidence of this witness.
P.W. 7, Dr. Omprakash Meena is the doctor who was at Primary Health Center, Sandhasal on 16.06.2004 at around 11.00 am when the deceased was brought there. He has stated that the in-laws and other people of her locality had brought her to the hospital for treatment. He has stated that she was fully conscious and that she had mentioned that her family members had poured kerosene over her and set her on fire. This witness has mentioned that the victim had received burn injuries on her chest, abdomen, hands, shoulder, neck and face and that she had sustained around 30-35 % burns.
12. It is required to be noted that the prosecution has failed to examine various crucial witnesses who could have thrown proper and genuine light on the exact happenings of the incident. Nevertheless, so far as the role of original accused no. 4 present appellant no. 1 is concerned, he has been named in the dying declaration to have poured kerosene over the deceased. The history before the doctor at Primary Health Centre does not specifically refer his name but he has been named in the dying declaration. Considering the medical evidence, the evidence of witnesses, the panchnamas on record, we feel that the presence of accused no. 4 at the scene of offence has been proved beyond reasonable doubt.
12.1 The role of original accused no. 3 present appellant no. 2 is mentioned in the dying declaration inasmuch as she had ignited the matchstick and set the deceased ablaze. However, the name of original accused no. 3 was interpolated with original accused no. 2 and the prosecution has not explained the said interpolation. This creates a serious doubt in the mind of the court. The non-examination of crucial witnesses has proved fatal to the prosecution as far as the role of original accused no. 3. There is nothing on record which points out the role of original accused no. 3 other than the averment in the dying declaration. However, merely the allegation in the dying declaration without any corroboration will not suffice in the present case when the name of accused no. 3 was interpolated.
13. In the case of Uka Ram (supra), the Apex Court has observed as under :
6. Statements, written or verbal of relevant facts made by a person who is dead, or who cannot be found or who has become incapable of giving evidence, or whose attendance cannot be procured without an amount of delay or expense which under the circumstances of the case appears to the court unreasonable, are themselves relevant facts under the circumstances enumerated under sub-sections (1) to (8) of Section 32 of the Act. When the statement is made by a person as to cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that persons death comes into question is admissible in evidence being relevant whether the person was or was not, at the time when they were made, under expectation of death, and whatever may be the nature of the proceeding in which the cause of his death comes into question. Such statements in law are compendiously called dying declarations. The admissibility of the dying declaration rests upon the principle that a sense of impending death produces in a mans mind the same feeling as that of a conscientious and virtuous man under oath - Nemo moriturus praesumuntur mentiri. Such statements are admitted, upon consideration that their declarations made in extremity, when the maker is at the point of death and when every hope of this world is gone, when every motive to falsehood is silenced and the mind induced by the most powerful consideration to speak the truth. The principle on which the dying declarations are admitted in evidence, is based upon the legal maxim Nemo moriturus praesumitur mentire i.e., a man will not meet his maker with a lie in his mouth. It has always to be kept in mind that though a dying declaration is entitled to great weight, yet it is worthwhile to note that as the maker of the statement is not subjected to cross- examination, it is essential for the court to insist that dying declaration should be of such nature as to inspire full confidence of the court in its correctness. The court is obliged to rule out the possibility of the statement being the result of either tutoring, prompting or vindictive or product of imagination. Before relying upon a dying declaration, the court should be satisfied that the deceased was in a fit state of mind to make the statement. Once the court is satisfied that the dying declaration was true, voluntary and not influenced by any extraneous consideration, it can base its conviction without any further corroboration as rule requiring corroboration is not a rule of law but only a rule of prudence.
13.1 In the case of Brundaban Moharana (supra), the Apex Court has observed that when the statements of witnesses allegedly supporting the dying declaration is found doubtful and capacity of injured to make a statement is found doubtful no reliance can be placed on such dying declaration recorded by I.O.
13.2 Similarly, in the case of Sharda (supra), the Apex Court has held as under :
24. In the case in hand, the conviction of the appellant is based on the last dying declaration Exh.P- 18, said to have been recorded in presence of Executive Magistrate. The principle on which dying declarations are 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.
It is indicative of the fact that a man who is on a death bed would not tell a lie to falsely implicate an innocent person. This is the reason in law to accept the veracity of her statement. It is for this reason, the requirements of oath and cross-examination are dispensed with. Besides, if the dying declaration is to be completely excluded in a given case, it may even amount to miscarriage of justice as the victim alone being the eye-witness in a serious crime, the exclusion of the statement would leave the court without a scrap of evidence.
25.
Though a dying declaration is entitled and is still recognized by law to be given greater weightage but it has also to be kept in mind that accused had no chance of cross-examination. Such a right of cross- examination is essential for eliciting the truth as an obligation of oath. This is the reason, generally, the court insists that the dying declaration should be such which inspires full confidence of the court of its correctness. The court has to be on guard that such statement of deceased was not as a result of either tutoring, prompting or product of imagination. The court must be further satisfied that deceased was in a fit state of mind after a clear opportunity to observe and identify the assailants. Once the court is satisfied that the aforesaid requirement and also to the fact that declaration was true and voluntary, undoubtedly, it can base its conviction without any further corroboration.
It is not an absolute rule of law that the dying declaration cannot form the sole basis of conviction unless it is corroborated. The rule requiring corroboration is merely a rule of prudence.In this regard, we may profitably quote the following para from (1985) 4 SCC 476 titled State (Delhi Administration) Vs Laxman Kumar :
We have also come to the conclusion that the High Court failed to take into account one material aspect while appreciating the evidence of the prosecution witnesses. It is a fact that Sudha had been burnt and according to the medical opinion that was to the extent of 70%. As the evidence shows, Sudha was in her senses and was capable of talking at the time when she was being removed to the hospital or even after she had been admitted as an indoor patient. The two sisters or their respective husbands had no apprehension that Sudha would not live. In case Sudha came round, she was to have lived in the family of her husband. No one interested in the welfare of Sudha was, therefore, prepared to make a statement which might prejudice the accused persons and lead to the straining of relationship in an irreparable way. Therefore, the silence or avoidance to make a true disclosure about the cause of fire particularly so long as Sudha was alive, cannot be over- emphasised an adverse inference drawn by the High Court from the conduct of the sisters was indeed not warranted in the facts of the case.
13.3 In the case of P. Mani (supra), it is observed by Apex Court as under:
14.
Indisputably conviction can be recorded on the basis of dying declaration alone but therefore the same must be wholly reliable. In a case where suspicion can be raised as regard the correctness of the dying declaration, the court before convicting an accused on the basis thereof would look for some corroborative evidence. Suspicion, it is trite, is no substitute for proof. If evidence brought on records suggests that such dying declaration does not reveal the entire truth, it may be considered only as a piece of evidence in which event conviction may not be rested only on the basis thereof. The question as to whether a dying declaration is of impeceable character would depend upon several factors; physical and mental condition of the deceased is one of them. In this case the circumstances which have ben brought on records clearly point out that what might have been stated in the dying declaration may not be correct. If the deceased had ben nurturing a grudge against her husband for a long time, she while committing suicide herself may try to implicate him so as to make his life miserable. In the present case where the Appellant has ben charged under Section 302 of the Indian Penal Code, the presumption in terms of Section 113A of the Evidence Act is not available. In absence of such a presumption, the conviction and sentence of the accused must be based on cogent and reliable evidence brought on record by the prosecution. In this case, we find that the evidences are not such which point out only to the guilt of the accused.
13.4 On the other hand, in the case of Krishan (supra), the Apex Court has held that it is not an absolute principle of law that a dying declaration cannot form the sole basis of conviction of an accused. Where the dying declaration is true and correct, the attendant circumstances show it to be reliable and it has been recorded in accordance with law, the deceased made the dying declaration of her own accord and upon due certification by the doctor with regard to the state of mind and body, then it may not be necessary for the court to look for corroboration. In such cases, the dying declaration alone can form the basis for the conviction of the accused. But where the dying declaration itself is attended by suspicious circumstances, has not been recorded in accordance with law and settled procedures and practices, then, it may be necessary for the court to look for corroboration of the same.
14. Considering the the dying declaration recorded by the Executive Magistrate it is clear that the deceased died a homicidal death due to the act of the appellant no. 1 original accused no. 4 in pouring kerosene and setting her ablaze. However, the role of present appellant no. 2 - original accused no. 3 is under suspicion as the name has been interpolated which is evident from the records more particularly the document at Mark 170/1.
The prosecution has failed to explain this lacuna. The prosecution deliberately did not place the said document on record and in fact it was brought on record by accused who led evidence. Hence, we are of the opinion that the appellant no. 2 deserves to be granted benefit of doubt.
15. However, we have also not lost sight of the fact that from the medical reports, it is clear that the deceased suffered from Septicemia which happened due to extensive burns. It is also pertinent to note that the deceased had survived for around around 7 days after sustaining around 30 to 35% burns.
15.1 In the case of the B.N. Kavatakar and another (supra), the Apex Court in a similar case of septicemia where the deceased therein had died in the hospital after five days of the occurrence of the incident in question, converted the conviction under section 302 to under section 326 and modified the sentence accordingly.
15.2 Similarly, in the case of Maniben (supra), the Apex Court has observed as under:
18. The deceased was admitted in the hospital with about 60% burn injuries and during the course of treatment developed septicemia, which was the main cause of death of the deceased. It is, therefore, established that during the aforesaid period of 8 days the injuries aggravated and worsened to the extent that it led to ripening of the injuries and the deceased died due to poisonous effect of the injuries.
It is established from the dying declaration of the deceased that she was living separately from her mother-in-law, the appellant herein, for many years and that on the day in question she had a quarrel with the appellant at her house. It is also clear from the evidence on record that immediately after the quarrel she along with her daughter came to fetch water and when she was returning, the appellant came and threw a burning tonsil on the clothes of the deceased. Since the deceased was wearing a terylene cloth at that relevant point of time, it aggravated the fire which caused the burn injuries.
There is also evidence on record to prove and establish that the action of the appellant to throw the burning tonsil was preceded by a quarrel between the deceased and the appellant. From the aforesaid evidence on record it cannot be said that the appellant had the intention that such action on her part would cause the death or such bodily injury to the deceased, which was sufficient in the ordinary course of nature to cause the death of the deceased. Therefore, in our considered opinion, the case cannot be said to be covered under clause (4) of Section 300 of IPC. We are, however, of the considered opinion that the case of the appellant is covered under Section 304 Part II of IPC.
16. In the present case, we have come to the irresistible conclusion that the role of the appellant no. 1 is clear from the dying declaration and other records. However, the points which have also weighed with this court are that the deceased had survived for 7 days in the hospital and ultimately died of septicemia. In that view of the matter, we are of the opinion that the conviction of the appellant no. 1 under section 302 of Indian Penal Code is required to be converted to that under section 304(I) of Indian Penal Code. The appellant no. 2 is required to be granted benefit of doubt.
17. In the premises aforesaid, we pass the following order:
The order of conviction and sentence dated 04.06.2007 arising from Sessions Case No. 195 of 2004 passed by the Presiding Officer, Fast Track Court No. 3, Baroda is quashed and set aside qua present appellant no. 2 - original accused no. 3 being Savitriben Goswami. Appellant no. 2 - original accused nos. 3 is granted benefit of doubt and is accordingly acquitted of the charges levelled against her under Sections 302, 149, 341, 143, 147, 148 & 114 of Indian Penal Code.
The conviction of the appellant no. 1 - original accused no. 4 under Section 302 of the Indian Penal Code vide judgment and order dated 04.06.2007 arising from Sessions Case No. 195 of 2004 passed by the Presiding Officer, Fast Track Court No. 3, Baroda is converted to conviction under Section 304 (Part I) of Indian Penal Code.
The appellant no. 1 original accused no. 4 is ordered to undergo rigorous imprisonment for a period of ten years under section 304 (Part I) of Indian Penal Code instead of life imprisonment as awarded by the trial court under section 302 IPC. However, the judgement and order qua imposition of fine is maintained. The appellant no. 1 is acquitted of the charges levelled against him under section 149, 341, 143, 147, 148 & 114 of Indian Penal Code.
The judgement and order dated 04.06.2007 is modified accordingly. The period of sentence already undergone shall be considered for remission of sentence qua appellant no. 1 original accused no.
4. Since the appellant no. 2 is on bail, her bail bond shall stand cancelled. Appellant no. 1 shall be set at liberty on completion of his period of sentence if not required in connection with any other case.
Appeal is allowed to the aforesaid extent. R & P to be sent back to the trial court forthwith.
(K.S.JHAVERI, J.) (K.J.THAKER, J) divya Page 23 of 23