Gujarat High Court
Jitendrabhai @ Manharbhai Devjibhai ... vs State Of Gujarat on 14 February, 2024
Author: A.S. Supehia
Bench: A.S. Supehia
NEUTRAL CITATION
R/CR.A/1149/2016 JUDGMENT DATED: 14/02/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL (AGAINST CONVICTION) NO. 1149 of 2016
With
CRIMINAL MISC.APPLICATION (REGULAR BAIL) NO. 6 of 2023
In R/CRIMINAL APPEAL NO. 1149 of 2016
With
CRIMINAL MISC.APPLICATION (REGULAR BAIL) NO. 7 of 2023
In R/CRIMINAL APPEAL NO. 1149 of 2016
With
CRIMINAL MISC.APPLICATION (FOR REGULAR BAIL) NO. 9 of 2023
In R/CRIMINAL APPEAL NO. 1149 of 2016
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE A.S. SUPEHIA Sd/-
and
HONOURABLE MR. JUSTICE VIMAL K. VYAS Sd/-
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1 Whether Reporters of Local Papers may be allowed YES
to see the judgment ?
2 To be referred to the Reporter or not ? YES
3 Whether their Lordships wish to see the fair copy NO
of the judgment ?
4 Whether this case involves a substantial question NO
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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JITENDRABHAI @ MANHARBHAI DEVJIBHAI VASAVA & 5 other(s)
Versus
STATE OF GUJARAT
================================================================
Appearance:
HCLS COMMITTEE(4998) for the Appellant(s) No. 1
MR RAMNANDAN SINGH(1126) for the Appellant(s) No. 1,2,3,4,5,6
MR TIRTHRAJ PANDYA, APP for the Opponent(s)/Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA
and
HONOURABLE MR. JUSTICE VIMAL K. VYAS
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NEUTRAL CITATION
R/CR.A/1149/2016 JUDGMENT DATED: 14/02/2024
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Date : 14/02/2024
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE VIMAL K. VYAS)
1. The appellants-accused have preferred the present Appeal under Section 374 of the Code of Criminal Procedure, 1973 (for short, 'the Cr.P.C.) and challenged the judgment and order of conviction dated 15th March 2016 rendered by the learned 6th Ad-hoc Additional Sessions Judge, Ankleshwar, District Bharuch, in Sessions Case No.123 of 2013, convicting the appellants-accused for the offences punishable under Section 302 read with Section 114 of the Indian Penal Code and sentencing them to undergo life imprisonment with a fine of Rs.500=00 and in default of payment of fine, to suffer further simple imprisonment for 15 days. The appellants-accused have been acquitted for the offences punishable under Section 504 read with Section 114 of the Indian Penal Code.
2. The case of the prosecution in nut-shell is that on 4 th April 2013 at about 6:00 p.m., the accused nos.1 to 6 (appellants herein) had quarreled with the deceased complainant Lilaben Page 2 of 37 Downloaded on : Wed Feb 14 20:46:05 IST 2024 NEUTRAL CITATION R/CR.A/1149/2016 JUDGMENT DATED: 14/02/2024 undefined Babubhai Vasava and her family members as to why they made a bath-room in the land of the appellants and hurled abuses but the complainant and her family members had not responded to it. Thereafter, in the evening at about 7:15 p.m., when the deceased complainant was alone at her home, at that time, all the accused persons (appellants herein) had again come to her house and started quarreling with the deceased complainant by using abusive language and tried to caught hold of her. She, therefore, ran away to the house of her aunt Savitaben Kanchanbhai Vasava. All the appellants-accused chased the deceased complainant and the appellants nos.3 to 6 caught hold of her at the house of Savitaben and pushed her on the floor, at that time, the appellant no.1 poured kerosene on her body from a can and appellant no.2 set her ablaze by lighting a match- stick. As the deceased complainant started shouting, all the appellants-accused ran away from the scene of offence. The deceased complainant was immediately rushed to the Civil Hospital at Bharuch by her family members, where she was admitted at about 8:45 p.m. An M.L.C. case was registered and the 'wardhi' in this regard was sent to the Jhagadia Police Station, which was entered into station diary by the PSO on 4.4.2013 vide Entry No.16 and a yadi was sent to the Executive Page 3 of 37 Downloaded on : Wed Feb 14 20:46:05 IST 2024 NEUTRAL CITATION R/CR.A/1149/2016 JUDGMENT DATED: 14/02/2024 undefined Magistrate for recording of the dying declaration of the injured Lilaben. The PSO, thereafter, informed the PSI Shri Govindbhai Mansingbhai Rathva, who immediately rushed to the hospital and recorded the complaint of the injured Lilaben at 00:30 hours on 5.4.2013.
3. On the basis of the FIR, an offence came to be registered as I-CR No.62 of 2013 at the Jhagadia Police Station initially under Sections 307, 504 read with Section 114 of the Indian Penal Code and the investigation was commenced. As the complainant succumbed to the injuries, on 14.4.2013, the offence under Section 302 was added in the FIR.
4. During the investigation, the scene of offence panchnama, inquest panchnama and seizure panchnama were drawn; the statements of the victim conversant with the incident were recorded and all the accused were arrested and panchnamas in this regard were drawn in presence of the panchas. The documentary evidence in the nature of postmortem report, dying declaration, FSL report, etc. were collected. Page 4 of 37 Downloaded on : Wed Feb 14 20:46:05 IST 2024
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5. On completion of the investigation, charge-sheet came to be filed before the learned Judicial Magistrate, First Class, Jhagadia, under Sections 302, 504 read with Section 114 of the Indian Penal Code. As the offence was exclusively triable by the Sessions Court, the case was committed to the Sessions Court, Ankleshwar, which was registered as Sessions Case No.123 of 2013. The learned Sessions Judge framed the charge at Exh.4 against all the accused persons. The charge was read over and explained to the appellants-accused, who pleaded not guilty to the charge and claimed to be tried.
6. To bring home the charge, the prosecution produced the following oral evidence :
ORAL EVIDENCE Sr. Exhibit Details/Deposition No.
1. 12 Panch - Maheshbhai Mangabhai Vasava
2. 19 Panch - Maheshbhai Kantibhai Vasava
3. 20 Panch - Miteshbhai Kanchanbhai Vasava
4. 22 Panch - Taraben Rajivbhai Vasava
5. 23 Panch - Ramanbhai Vajirbhai Vasava
6. 28 Panch - Nanubhai Virchandbhai Varde
7. 29 Panch - Sarlaben Rakeshbhai Vasava Page 5 of 37 Downloaded on : Wed Feb 14 20:46:05 IST 2024 NEUTRAL CITATION R/CR.A/1149/2016 JUDGMENT DATED: 14/02/2024 undefined
8. 30 Witness - Savitaben Kanchanbhai Vasava
9. 31 Witness - Rupaben Babubhai Vasava
10. 32 Witness - Rakeshbhai Babubhai Vasava
11. 33 Medical Officer - Dr.Vijaybhai Motiram Baviskar
12. 35 Investigating Officer - Javaharbhai Mohanbhai Vasava
13. 36 Witness - Bharatbhai Babubhai Vasava
14. 38 Executive Magistrate - Dhanabhai Khalpabhai Vasava
15. 41 P.S.O. - Ratilal Mohanbhai
16. 44 Investigating Officer - Pravinbhai Hatthabhai Chaudhary
17. 49 Investigating Officer - Govindbhai Mansingbhai Rathwa
18. 54 Medical Officer - Dr.Dilipkumar Kantilal Patel
19. 58 Medical Officer - Dr.Sureshnandan Ramnarayan Yadav
7. The prosecution has also adduced the following documentary evidence :
DOCUMENTARY EVIDENCE Sr. Exhibit Document details No.
1. 13 Panchnama of the scene of offence
2. 21 Inquest Panchnama
3. 24 to 27 Panchnama of the person of the accused
4. 34 Postmortem Report
5. 39 Dying declaration of the deceased
6. 40 Yadi for recording the dying declaration
7. 42 Station diary details
8. 43 Wardhi sent from Vir Surgical Hospital Page 6 of 37 Downloaded on : Wed Feb 14 20:46:05 IST 2024 NEUTRAL CITATION R/CR.A/1149/2016 JUDGMENT DATED: 14/02/2024 undefined
9. 45 Note for sending the muddamal
10. 46 Receipt for receiving the muddamal by the FSL
11. 47 FSL Report
12. 48 Report of visiting the place of offence
13. 50 Original Complaint
14. 51 Biological & Serological Report of the FSL
15. 55 Medico-Legal Certificate of Vir Surgical Hospital
16. 59 Certificate of Civil Hospital, Bharuch
17. 60 Case-papers of Civil Hospital, Bharuch
8. On completion of recording of the evidence, the learned Sessions Judge explained the incriminating circumstances against the appellants-accused in the evidence. The appellants- accused, in the further statement recorded under Section 313 of the Cr.P.C., explained the incriminating circumstances that they are innocent and falsely implicated in the alleged offence. On completion of the trial, the learned Sessions Judge found the appellants-accused guilty of the offence and sentenced them as stated herein above.
9. Being dissatisfied with the aforesaid judgment and order of conviction and sentence, the appellants-accused have preferred the present Appeal before this Court.
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10. Learned advocate Mr.Ramnandan Singh for the appellants- accused has submitted that the trial court has erred in convicting and sentencing the appellants-accused for the offence punishable under Section 302 read with Section 114 of the Indian Penal Code.
11. Learned advocate Mr.Ramnandan Singh, while taking this Court to the evidence led by the prosecution, has submitted that all the panch witnesses have not supported the case of the prosecution and have turned hostile. Therefore, the contents of the scene of offence panchnama, inquest panchnama and the arrest panchnama are not duly proved.
12. It is further submitted by Mr.Singh that there was previous animosity between the family members of the deceased and the accused and, therefore, some cases were also filed by them against each other. In support of his argument, learned advocate Mr.Singh has placed reliance on the deposition of the PW8 - Savitaben Kanchanbhai Vasava (Exh.30), who has admitted in her cross-examination that earlier before the incident, she had a Page 8 of 37 Downloaded on : Wed Feb 14 20:46:05 IST 2024 NEUTRAL CITATION R/CR.A/1149/2016 JUDGMENT DATED: 14/02/2024 undefined quarrel with the appellants and cases were also filed by both the parties against each other. It is, therefore, submitted by learned advocate Mr.Singh that due to previous enmity the appellants- accused have been falsely implicated in the alleged offence. It is further submitted that as per the case of the prosecution, soon after the occurrence of the incident, Lilaben was rushed to the Civil Hospital, Bharuch, where her dying declaration was recorded at about 22:20 hours by PW14 - Executive Magistrate Shri Dhanabhai Khalpabhai Vasava (Exh.38), in which the deceased has not named the appellant-accused no.4 Ramanbhai Bijalbhai Vasava. However, in the complaint, which has been recorded by PW17 - PSI Shri Govindbhai Mansingbhai Rathwa (Exh.49) at 00:30 hours on 5.4.2013, the name of the accused- appellant no.4 is mentioned as the co-accused, which raises suspicion towards the story of the prosecution. While referring to the medical certificate at Exh.59 and the postmortem note at Exh.34, learned advocate for the appellants-accused has submitted that it is not believable that a person with 100% I st and IInd degree burn injuries over the body can remain conscious and in a fit state of mind to narrate the perfect details of the incident, which also suggests that the history might not have been given by the deceased. It is further submitted that as per Page 9 of 37 Downloaded on : Wed Feb 14 20:46:05 IST 2024 NEUTRAL CITATION R/CR.A/1149/2016 JUDGMENT DATED: 14/02/2024 undefined the case of the prosecution, the accused nos.3 to 6 had caught hold of the deceased and pushed her on the floor, whereas the accused no.1 had poured kerosene on her body and the accused no.2 had set her ablaze by lighting a matchstick. However, it is noteworthy that none of the accused persons have received a slightest burn injuries, which is also highly doubtful and raises suspicion towards the involvement of the accused nos.3 to 6 in the alleged offence. In support of his submission, Mr.Singh has placed reliance on the decision of the Supreme Court in the case of Umakant and another vs. State of Chhatisgarh, reported in (2014) 7 SCC 405. He has, therefore, urged before this Court that the present Appeal may be allowed.
13. Thus, learned advocate for the appellants-accused has submitted that the learned trial Judge has not appreciated the evidence adduced by the prosecution in its true perspective while convicting the accused merely on the basis of conjectures and surmises.
SUBMISSIONS ON BEHALF OF THE RESPONDENT - STATE :
14. In response to the aforesaid submissions, learned APP Page 10 of 37 Downloaded on : Wed Feb 14 20:46:05 IST 2024 NEUTRAL CITATION R/CR.A/1149/2016 JUDGMENT DATED: 14/02/2024 undefined Mr.Tirthraj Pandya has submitted that the conviction and sentence imposed by the trial Court do not call for any interference by this Court as the same has rightly been imposed after examining the oral as well as the documentary evidence. Learned APP, while referring to the evidence of PW19 - Dr.Sureshnandan Ramnarayan Yadav (Exh.58), has submitted that the evidence of this witness reveals that on 4.4.2013 at about 8:45 p.m. the deceased Lilaben was brought to the Civil Hospital, Bharuch, by her relatives through 108-Ambulance without the policy yadi. The evidence of this witness further reveals that at the time of her examination, she was conscious, and on asking the history about the incident, she specifically named all the accused and stated that all of them together, after pouring kerosene on her body, set her ablaze. It has also been noticed by this witness that the smell of kerosene was emitting from her body as well as from her burnt clothes. He, therefore, made a specific note in the case papers in this regard.
15. Learned APP, thereafter, referred to the evidence of PW14 - Executive Magistrate Shri Dhanabhai Khalpabhai Vasava (Exh.38), who recorded the dying declaration of the deceased - Page 11 of 37 Downloaded on : Wed Feb 14 20:46:05 IST 2024
NEUTRAL CITATION R/CR.A/1149/2016 JUDGMENT DATED: 14/02/2024 undefined Lilaben, and submitted that the evidence of this witness also clearly reveals that at the time of recording the dying declaration, the deceased was conscious and her dying declaration was recorded in a 'question-answer' form, in which also, she has named all the accused except the appellant-accused no.4, i.e. Ramanbhai Bijalbhai Vasava, and stated that all the accused quarreled with her and accused no.1 - Jitendrabhai Vasava had poured kerosene on her body and accused no.2 - Ranjitbhai Vasava set her ablaze by lighting a matchstick. Learned APP, in this regard, has submitted that it is true that in her dying declaration the deceased has not stated the name of the accused no.4 - Ramanbhai Bijalbhai Vasava, but that by itself is of no consequence since soon after the incident, at the time of her examination by the Medical Officer at Civil Hospital, Bharuch, the deceased herself narrated the history to the treating doctor PW19 - Dr.Sureshnandan Ramnarayan Yadav by naming all the accused including the appellant-accused no.4 - Ramanbhai Bijalbhai Vasava. It is submitted that the evidence of PW14 - Executive Magistrate Shri Dhanabhai Khalpabhai Vasava clearly establishes the complicity of all the accused persons in the alleged offence.
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16. Learned APP also referred to the evidence of the eye- witness PW8 - Savitaben Kanchanbhai Vasava (Exh.30), PW9 - Rupaben Babubhai Vasava (Exh.31), PW10 - Rakeshbhai Babubhai Vasava (Exh.32), PW13 - Bharatbhai Babubhai Vasava (Exh.36), PW16 - Police Inspector Shri Pravinbhai Hatthabhai Chaudhary (Exh.44), PW17 - Investigating Officer Shri Govindbhai Mansingbhai Rathwa, and has submitted that considering their trustworthy evidence, their remains no doubt about the complicity of all the appellants-accused in the alleged offence. Thus, it is urged that the conviction and sentence recorded by the trial court does not require any interference by this Court and the Appeal may be dismissed.
ANALYSIS AND FINDINGS :
17. We have heard learned advocate for the respective parties and threadbare examined the evidence on record as well as the judgment and order of the trial Court.
18. The case of the prosecution, primarily, is based upon the evidence of :
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NEUTRAL CITATION R/CR.A/1149/2016 JUDGMENT DATED: 14/02/2024 undefined (1) PW8 - Savitaben Kanchanbhai Vasava (eye-witness);
(2) PW9 - Rupaben Babubhai Vasava;
(3) PW10 - Rakeshbhai Babubhai Vasava.
(4) PW14 - Executive Magistrate Shri Dhanabhai
Khalpabhai Vasava;
(5) PW16 - Police Inspector, SOG, Shri Pravinbhai
Hatthabhai Chaudhary;
(6) PW17 - Investigating Officer Shri Govindbhai
Mansingbhai Rathwa;
(7) PW19 - Dr.Sureshnandan Ramnarayan Yadav
(treating doctor).
19. A close reading of the deposition of the eye-witness PW8 -
Savitaben Kanchanbhai Vasava (Exh.30), who is the aunt of the deceased, reveals that she was present at the time of the incident. She has narrated that on the date of the incident at about 7:00 p.m., she had gone to collect straw stubble for burning and at that time, the accused Jitendrabhai, Hareshbhai, Devjibhai, Ranjitbhai Devjibhai Vasava, Ramanbhai Bijalbhai, Dhaniben @ Dhankiben Devjibhai and Ramilaben Jitendrabhai had come to the house of the deceased Lilaben and quarreled with her regarding erection of 'kachcha' bathroom. At that time, the accused Jitendrabhai Devjibhai was carrying a can of Page 14 of 37 Downloaded on : Wed Feb 14 20:46:05 IST 2024 NEUTRAL CITATION R/CR.A/1149/2016 JUDGMENT DATED: 14/02/2024 undefined kerosene in his hand. Therefore, the deceased Lilaben had ran towards the house of this witness. On witnessing the same, PW8
- Savitaben rushed to her house. At that time, Dhanjibhai, Dhankiben, Ramilaben, Ranjit and Haresh had caught hold of the deceased and Jitendra had poured kerosene on the deceased and Ranjit had set her ablaze. In an attempt to save Lilaben, Mitesh Kanchan had thrown blanket (rug) on Lilaben. The witness Savitaben has stated that as the entire incident took place at her house, she has witnessed the same. She has also identified all the accused before the Court. In her cross- examination, she has denied that at the time of admitting the deceased at the Civil Hospital, Bharuch, the deceased was not conscious. However, she has admitted that there was previous animosity between them and some cases were also filed by them against each other. Considering the aforesaid evidence, it appears that the cross-examination does not dent the evidence of this witness. It is the case of the defence that the version of this witness does not reconcile with the dying declaration of the deceased. It is contended that in her dying declaration, the deceased had not stated the name of the accused Ramanbhai and only stated that all the accused had come to her house with a can of kerosene, quarreled with her and accused no.1 Jitendra Page 15 of 37 Downloaded on : Wed Feb 14 20:46:05 IST 2024 NEUTRAL CITATION R/CR.A/1149/2016 JUDGMENT DATED: 14/02/2024 undefined poured kerosene on her body and accused no.2 Ranjit set her ablaze by lighting a matchstick. It is, therefore, submitted that except quarreling with the deceased, the accused nos.3 to 6 have played no role.
20. At this juncture, it is noteworthy that prior to recording of her dying declaration, the deceased was examined by the Medical Officer - Dr.Sureshnandan Ramnarayan Yadav (PW19). In his evidence, he has stated that on 4.4.2013 he was on duty as a Medical Officer at the Civil Hospital, Bharuch. At that time, at about 8:45 p.m. a patient named Lilaben Babubhai Vasava was brought to the hospital through 108 Ambulance without the police yadi. The patient was conscious and on asking about the incident, she stated that at about 7:00 p.m. Jitendra Devji Vasava, Ranjit Devji Vasava, Haresh Devji Vasava, Raman Bijal Vasava, Ramila Jitendra Vasava and Dhanki Deva Vasava all had set her ablaze by pouring kerosene on her body. This witness has further stated that on examination, he found 100% Ist and IInd degree burn injuries over the body of the deceased. He has specifically deposed that the clothes of the deceased were burnt and smell of kerosene was emitting from the body as well Page 16 of 37 Downloaded on : Wed Feb 14 20:46:05 IST 2024 NEUTRAL CITATION R/CR.A/1149/2016 JUDGMENT DATED: 14/02/2024 undefined as from the clothes of the deceased. The patient was treated as an indoor patient and, on 11.4.2013, she got discharged against medical advise for getting treatment from a private hospital. He has produced the medical certificate in this regard at Exh.59 and indoor case papers at Exh.60. In his cross-examination, he has denied the suggestion of the defence that he has not recorded the history as per the rules and entered the name of the accused later in point of time in the case-papers at Exh.60. In his cross- examination, he has clearly denied that as the deceased had received 100% burn injuries she was not in a position to even speak. Further, he has denied that he has mentioned the name of the accused in the case papers as per the suggestion of the relatives of the deceased. It would be apt to note here that the deceased herself narrated the history before the Medical Officer (PW19) immediately at the time of admitting her in the Civil Hospital, wherein she has clearly stated the name of all the accused including the accused no.4 - Ramanbhai Bijalbhai Vasava and the same was recorded by the doctor in the indoor case papers at Exh.60.
21. The prosecution has also examined PW38 - Executive Page 17 of 37 Downloaded on : Wed Feb 14 20:46:05 IST 2024 NEUTRAL CITATION R/CR.A/1149/2016 JUDGMENT DATED: 14/02/2024 undefined Magistrate - Dhanabhai Khalpabhai Vasava. This witness has deposed that on 4.4.2013 he was serving as a Deputy Mamlatdar, Bharuch, and he received a police 'wardhi' bearing No.16 of 2013 from the Jhagadia Police Station with a request to record the dying declaration of Lilaben. He, therefore, had gone to the Civil Hospital, Bharuch, and on asking, the Medical Officer on duty informed him that the patient Lilaben is admitted in the burns ward and she is conscious and able to speak. Therefore, he went to the patient, disclosed his identity and recorded the dying declaration in a 'question-answer' form. This witness has stated that on asking the patient about who brought her to the hospital, the patient Lilaben replied that her uncle Kanchanbhai Lallubhai Vasava and her mother Rupaben brought her to the hospital. He has further stated that Lilaben had specifically stated that she is at the hospital and is able to understand and mentally fit to give reply to the questions put to her. Further, on asking about her name, she stated her name to be Lilaben Babubhai Vasava, resident of Vanthevad, Taluka Jhagadia, District Bharuch, and further on asking about the incident, she stated that today in the evening at about 6:00 p.m., Jitendra Devji Vasava, Haresh Devji Vasava, Ranjit Devji Vasava, Dhankiben Devjibhai Vasava and Ramilaben Jitendrabhai Page 18 of 37 Downloaded on : Wed Feb 14 20:46:05 IST 2024 NEUTRAL CITATION R/CR.A/1149/2016 JUDGMENT DATED: 14/02/2024 undefined Vasava had come to her house and quarreled with regard to the land. At that time, she was alone at the house and the accused were carrying a can of kerosene with them and Jitendra Devji Vasava poured kerosene on her body and Ranjit Devji Vasava had set her ablaze by lighting a matchstick. Lilaben further stated that on hearing her cry, the neighbours had gathered there. She has specifically stated that at the time of the incident, nobody was in the house since her father had gone to the field to collect fodder for the cattle and her mother had gone to collect straw stubble for burning. The Executive Magistrate - Dhanabhai Khalpabhai Vasava (PW38) has further deposed that he had asked the patient, whether she tried to commit suicide. In response to it, the patient denied. She has clearly stated that she was assaulted by the aforesaid five persons who belongs to her own village. She has also stated that she can identify all the assaulter who ran away after pouring kerosene on her body and setting her ablaze by lighting a match-stick. The Executive Magistrate (PW38) has further deposed that at the time of recording of the dying declaration of Lilaben, she was alone and was able to read but as her right hand was covered with the bandages, the thumb impression of her left hand was obtained on the dying declaration. The Executive Magistrate - Dhanabhai Page 19 of 37 Downloaded on : Wed Feb 14 20:46:05 IST 2024 NEUTRAL CITATION R/CR.A/1149/2016 JUDGMENT DATED: 14/02/2024 undefined Khalpabhai Vasava (PW38), thereafter, produced the original dying declaration (Exh.39) as well as the police 'wardhi' by the Jhagadia Police Station (Exh.40) and stated that in the margin of Exh.40, the Medical Officer has endorsed that the patient is conscious and able to speak. The cross-examination of this witness does not dent his evidence.
22. Considering the aforesaid evidence, it clearly established that the deceased Lilaben had specifically stated about the involvement of all the accused. It is true that the name of accused no.4 - Ramanbhai Bijalbhai Vasava was not mentioned in the dying declaration, but the same, in our opinion, does not make the entire version doubtful, since at the time of her admission at the Civil Hospital, she had given the names of all the accused and also given the history before Dr.Sureshnandan Ramnarayan Yadav. It emerges from the evidence that when the dying declaration of the deceased Lilaben was being recorded, the Executive Magistrate - Dhanabhai Khalpabhai Vasava (PW14) found her to be conscious and in a fit state of mind. The Executive Magistrate - Dhanabhai Khalpabhai Vasava (PW14) and Dr.Sureshnandan Ramnarayan Yadav (PW19) are Page 20 of 37 Downloaded on : Wed Feb 14 20:46:05 IST 2024 NEUTRAL CITATION R/CR.A/1149/2016 JUDGMENT DATED: 14/02/2024 undefined independent witnesses and they have no reason to falsely implicate the appellants-accused. The recording of the dying declaration by the Executive Magistrate cannot be doubted since we do not find any defect in the procedure adopted by the Executive Magistrate in recording the dying declaration. Even, the complaint given by the deceased Lilaben before PW17 - PSI Shri Govindbhai Mansingbhai Rathwa also can be treated as the dying declaration, which is consistent with the involvement and the role of all the appellants-accused. It is noteworthy that if a person, who suffered 100% burn injuries all over the body, gives the dying declaration and if something here or there has been missed/ignored to be mentioned while recording the dying declaration, then the version narrated in the dying declaration cannot be doubted, rather it can be said to be natural and voluntary.
23. The principle on which the dying declaration is admitted in evidence is indicated in the legal maxim "nemo moriturus praesumitur mentire", i.e. a man will not meet his maker with a lie in his mouth. The situation in which a person is on a deathbed is so solemn and serene when he is dying, that the Page 21 of 37 Downloaded on : Wed Feb 14 20:46:05 IST 2024 NEUTRAL CITATION R/CR.A/1149/2016 JUDGMENT DATED: 14/02/2024 undefined grave position in which he is placed, is the reason in law to accept veracity of his statement. It is for this reason the requirements of oath and cross-examination are dispensed with. Besides, should the dying declaration be excluded it will result in miscarriage of justice because the victim being generally the only eye-witness in a serious crime the exclusion of the statement would leave the court without a scrap of evidence. Though a dying declaration is entitled to great weight, it is worthwhile to note that the accused has no power of cross-examination. Such a power is essential for eliciting the truth as an obligation of oath could be. This is the reason the court also insists that the dying declaration should be of such a nature as to inspire full confidence of the court in its correctness. The court has to be on guard that the statement of the deceased was not as a result of either tutoring, or prompting or a product of imagination. The court must be further satisfied that the deceased was in a fit state of mind after a clear opportunity to observe and identify the assailant. Once the court is satisfied that the declaration was true and voluntary, undoubtedly, it can base its conviction without any further corroboration. It cannot be laid down as an absolute rule of law that the dying declaration cannot form the sole basis of conviction unless it is corroborated. The rule Page 22 of 37 Downloaded on : Wed Feb 14 20:46:05 IST 2024 NEUTRAL CITATION R/CR.A/1149/2016 JUDGMENT DATED: 14/02/2024 undefined requiring corroboration is merely a rule of prudence. The Supreme Court has laid down, in several judgments, the principles governing the dying declaration, which could be summed up as under as indicated in Smt. Paniben vs. State of Gujarat, reported in AIR 1992 SC 1817 :
(i) There is neither rule of law nor of prudence that dying declaration cannot be acted upon without corroboration. (Mannu Raja vs. State of M.P., [1976] 2 SCR 764).
(ii) If the Court is satisfied that the dying declaration is true and voluntary it can base conviction on it, without corroboration. (State of M.P. vs. Ram Sagar Yadav, AIR 1985 SC 416; Ramavati Devi vs. State of Bihar, AIR 1983 SC 164).
(iii) This Court has to scrutinise the dying declaration carefully and must ensure that the declaration is not the result of tutoring, prompting or imagination. The deceased had opportunity to observe and identify the assailants and was in a fit state to make the declaration.
(Ram Chandra Reddy vs. Public Prosecutor, AIR 1976 S.C. 1994).
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(iv) Where dying declaration is suspicious it should not be acted upon without corroborative evidence. (Rasheed Beg v. Sate of Madhya Pradesh, [1974] 4 SCC
264).
(v) Where the deceased was unconscious and could never make any dying declaration the evidence with regard to it is to be rejected. (Kake Singh vs. State of M.P., AIR 1982 S.C. 1021)
(vi) A dying declaration which suffers from infirmity cannot form the basis of conviction. (Ram Manorath vs. State of U.P. (1981 SCC (Crl.) 531).
(vii) Merely because a dying declaration does not contain the details as to the occurrence, it is not to be rejected. (State of Maharashtra vs. Krishnamurthi Laxmipati Naidu, AIR 1981 SC 617).
(viii) Equally, merely because it is a brief statement, it is not to be discarded. On the contrary, the shortness of the statement itself guarantees truth. (Surajdeo Oza vs. State of Bihar, AIR 1979 SC 1505)
(ix) Normally the court, in order to satisfy whether deceased was in a fit mental condition to make the dying declaration, look up to the medical opinion. But where Page 24 of 37 Downloaded on : Wed Feb 14 20:46:05 IST 2024 NEUTRAL CITATION R/CR.A/1149/2016 JUDGMENT DATED: 14/02/2024 undefined the eye witness has said that the deceased was in a fit and conscious state to make this dying declaration, the medical opinion cannot prevail. (Nanahau Ram and another vs. State, AIR SC 912)
(x) Where the prosecution version differs from the version as given in the dying declaration, the said declaration cannot be acted upon. (State of U.P. vs. Madan Mohan, AIR 1989 SC 1519).
24. Learned advocate Mr.Ramnandan Singh for the appellants- accused submitted that it is evident from the record that the deceased had received 100% Ist and IInd degree burn injuries all over the body, then, in such a serious condition one could not be able to even speak, which raises serious doubt about the dying declaration. In support of his argument, Mr.Singh has placed reliance on the decision of the Supreme Court in the case of Umakant and another (supra). We have carefully gone through and considered the said judgment. It appears that in the said case, the Supreme Court found the dying declaration to be tutored one and, therefore, by allowing the appeal, acquitted the accused of that case from the charges levelled against them. However, in the case on hand, it is not the case of the defence Page 25 of 37 Downloaded on : Wed Feb 14 20:46:05 IST 2024 NEUTRAL CITATION R/CR.A/1149/2016 JUDGMENT DATED: 14/02/2024 undefined that the dying declaration seems to be tutored one. Rather, it is argued that at the time of recording of the dying declaration, the deceased might not be in a condition to give her statement due to 100% Ist and IInd degree burn injuries all over the body. At this juncture, it is noteworthy that both the treating doctor, i.e. Dr.Sureshnandan Ramnarayan Yadav (PW19) and Dr.Dilipkumar Kantilal Patel (PW18), who had examined the deceased, in their evidence, clearly deposed that the deceased was conscious and she herself narrated the history regarding the incident.
25. Therefore, as discussed above, the dying declaration was found to be trustworthy and even the version of the deceased corroborates with the evidence of the eye-witness PW8 - Savitaben Kanchanbhai Vasava. The facts narrated by the deceased in the dying declaration are corroborated by the evidence of the eye-witness PW8 - Savitaben Kanchanbhai Vasava and PW17 - PSI Shri Govindbhai Mansingbhai Rathwa, who recorded the complaint of the deceased Lilaben at 00:30 hours on 5.4.2013 at the hospital on the very day of the incident.
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26. The judgment relied upon by learned advocate Mr.Singh in the case of Umakant and another (supra) would be of no avail to the present appellants-accused, because in that case, the dying declaration was not inspiring confidence in the mind of the court and raised serious doubt that the same was a product of tutoring by the family members of the deceased, whereas, in the case on hand, there is no defect in the dying declaration and the same is found to be trustworthy. Therefore, in our considered opinion, we found that the trial court committed no error and has rightly convicted the appellants-accused for the offences mentioned herein above.
27. The prosecution has also examined PW9 - Rupaben Babubhai Vasava (Exh.31), who is the mother of the deceased Lilaben. The evidence of this witness indicates that on the date of the incident, she had gone to collect straw stubble for burning and when she returned home, the incident had already happened. She has deposed that Lilaben was already burnt, however, she was able to speak. On her asking, Lilaben stated that Dhanji, Dhaniben, Ramilaben, Haresh and Raman had caught hold of her, Jitendra had poured kerosene on her body Page 27 of 37 Downloaded on : Wed Feb 14 20:46:05 IST 2024 NEUTRAL CITATION R/CR.A/1149/2016 JUDGMENT DATED: 14/02/2024 undefined and Ranjit had set her ablaze by lighting a match-stick. She further stated that thereafter Lilaben asked her uncle to take her to hospital. This witness has identified all the accused before the court. In her cross-examination, she has denied that when she saw Lilaben, she was unconscious and was not able to speak.
28. The prosecution has also examined PW10 - Rakeshbhai Babubhai Vasava (Exh.32), who is the brother of the deceased Lilaben. In his deposition, he has stated that on 4.4.2013, he was informed by one Manoj on his mobile-phone that something has happened to her sister and, therefore, he rushed to the home and found her sister Lilaben in a burnt condition. On asking her, Lilaben stated that Jitendra had come with a can of kerosene and Ramila, Haresh, Raman, Dhani had caught hold of her and Ranjit had set her ablaze by lighting a match-stick. This witness has further stated that the incident took place due to the dispute regarding erection of 'kachcha' bath-room.
29. It is noteworthy that the evidence of both the above witnesses, i.e. PW9 and PW10, corroborate with the evidence of PW8 - Savitaben Kanchanbhai Vasava, who is the eye-witness to Page 28 of 37 Downloaded on : Wed Feb 14 20:46:05 IST 2024 NEUTRAL CITATION R/CR.A/1149/2016 JUDGMENT DATED: 14/02/2024 undefined the incident. It also reveals from the evidence of both the aforesaid witnesses that after the incident, the deceased was able to speak and by naming all the accused, she clearly narrated how the incident had happened.
30. The prosecution has examined PW-17 PSI Shri Govindbhai Mansingbhai Rathwa (Exh.49), who recorded the complaint of the deceased Lilaben, and after registration of the offence, carried out the investigation. According to this witness, on 5.4.2013, in the early morning, he was on duty at the Jhagadia Police Station, and on the basis of the 'wardhi' received from the hospital, he visited the Bharuch Civil Hospital and recorded the complaint of the deceased Lilaben who was admitted in a burns ward, wherein she stated that at about 5:00 p.m. when she was alone at her house, at that time, Jitendra, Ranjit, Haresh, wife of Ranjit, their mother and Raman had come to her house and started quarreling using abusive language, however, she did not respond to it. Thereafter, at about 7:00 p.m. when she was alone at her house, all the aforesaid persons had again come to her house, therefore, she ran away towards the house of her aunt Savitaben Kanchanbhai Vasava (PW8), but all the accused Page 29 of 37 Downloaded on : Wed Feb 14 20:46:05 IST 2024 NEUTRAL CITATION R/CR.A/1149/2016 JUDGMENT DATED: 14/02/2024 undefined chased her, caught hold of her and pushed her on the floor. Thereafter, Jitendra poured kerosene on her body and Ranjit set her ablaze. This witness recorded the complaint as per the narration of the complainant and obtained thumb impression of her left hand as her right hand was covered with the bandages. The complaint was produced at Exh.50. In his cross- examination, the witness has stated that he recorded the complaint at 00:30 hours on 5.4.2013. The evidence of this witness clearly established that after receiving the 'wardhi', he visited the hospital and recorded the complaint of the deceased Lilaben at 00:30 hours on 5.4.2013, in which the deceased narrated the entire incident.
31. The prosecution has also examined PW16 - Police Inspector (SOG) Shri Pravinbhai Hatthabhai Chaudhary (Exh.44), who carried out the initial investigation. It reveals from his evidence that he had drawn the panchnama of the scene of offence in presence of the panchas and collected the soil containing kerosene from the scene of offence, controlled sample of soil and also seized a plastic can of kerosene, a match-box and a half-burnt blanket (rug), therefrom. This witness, Page 30 of 37 Downloaded on : Wed Feb 14 20:46:05 IST 2024 NEUTRAL CITATION R/CR.A/1149/2016 JUDGMENT DATED: 14/02/2024 undefined thereafter, recorded the statement of the eye-witness PW8 - Savitaben Kanchanbhai Vasava and PW9 - Rupaben Babubhai Vasava and handed over the further investigation to PSI Shri Govindbhai Mansingbhai Rathwa (PW17). He has produced the panchnama of the scene of offence at Exh.13. It reveals from the said panchnama that the incident took place in the house of PW8 - Savitaben Kanchanbhai Vasava and from the back side of her house, the half-burnt blanket (rug), a plastic can of kerosene and a red colour match-box were found and seized in presence of the panchas. It is true that the panchas have not supported the case of the prosecution, however, the prosecution proved the contents of the aforesaid panchanama through the deposition of this witness, who is the author of the panchnama.
32. The prosecution has examined PW18 - Dr.Dilipkumar Kantilal Patel (Exh.54), who is the surgeon and running a hospital in the name of Vir Surgical Hospital at Bharuch. It reveals from the evidence of this witness that on 11.4.2013 at about 5:45 the deceased Lilaben Babubhai Vasava was brought to and admitted in his hospital by her mother and brother and in the history given by the deceased and her relative, it was stated Page 31 of 37 Downloaded on : Wed Feb 14 20:46:05 IST 2024 NEUTRAL CITATION R/CR.A/1149/2016 JUDGMENT DATED: 14/02/2024 undefined that on 4.4.2013 at about 7:00 p.m., Jitendra Darji and Ramilaben had poured kerosene and set her ablaze at the house of PW8 - Savitaben Kanchanbhai Vasava at Vanthevad, Taluka Jhagadia, District Bharuch. He has stated that the deceased Lilaben, in earlier point of time, was admitted at the Bharuch Civil Hospital since 4.4.2013 and was brought to his hospital on 11.4.2013 at about 5:45 by her relatives. According to him, the condition of the patient was very serious and she succumbed to the injuries on 14.4.2013 at about 2:00 a.m. Therefore, her body was sent to the Civil Hospital for performing postmortem. He has produced the medical certificate at Exh.55 and indoor case- papers at Exh.56 in this regard. In his cross-examination, he has denied that due to 95% burn injuries the patient was not in a condition to give her statement. He has also admitted that he had informed the police regarding admission of the patient in his hospital.
33. The prosecution has examined PW11 - Dr.Vijay Motiram Baviskar (Exh.33) who, along with Dr.B.K.Sharma, in panel, carried out the postmortem of the deceased on 14.4.2013 between 6:15 p.m. and 7:15 p.m. He has given the details Page 32 of 37 Downloaded on : Wed Feb 14 20:46:05 IST 2024 NEUTRAL CITATION R/CR.A/1149/2016 JUDGMENT DATED: 14/02/2024 undefined regarding the burn injuries present over the body of the deceased Lilaben and stated that in their opinion the cause of death was "Septicaemic shock due to I & II Extensive & Infective Burn injury over body". In his cross-examination, he has admitted that the deceased was having 100% Ist and IInd degree burn injuries all over her body.
34. Having minutely considered the evidence; oral as well as documentary and having gone through the evidence of the PW19
- Medical Officer Dr.Sureshnandan Ramnarayan Yadav, before whom the deceased narrated the history; PW14 - Executive Magistrate Shri Dhanabhai Khalpabhai Vasava, who recorded the dying declaration of the deceased Lilaben Babubhai Vasava; and PW17 - PSI Shri Govindbhai Mansingbhai Rathwa, who recorded the complaint of the deceased at the hospital at 00:30 hours on 5.4.2013 along with the medical certificate at Exh.59 issued by Dr.Sureshnandan Ramnarayan Yadav on the very same day, indoor medical papers at Exh.60, 'wardhi' for recording dying declaration at Exh.40, dying declaration at Exh.39 and the complaint of the deceased recorded by PSI Shri Govindbhai Mansingbhai Rathwa, in our considered opinion, the Page 33 of 37 Downloaded on : Wed Feb 14 20:46:05 IST 2024 NEUTRAL CITATION R/CR.A/1149/2016 JUDGMENT DATED: 14/02/2024 undefined involvement of all the appellants-accused in the commission of the offence is clearly established.
35. We are, therefore, of the view that the trial court was justified in coming to the conclusion that the appellants-accused are involved in the commission of the offence.
36. It appears from the judgment of the trial court that the trial court convicted all the appellants-accused under Section 302 read with Section 114 of the IPC.
37. Section 114 of the IPC deals with the principles of abetment, which involves encouraging, aiding or instigating the commission of offence. In the case of Sanju @ Sanjay Singh Sengar vs. State of Madhya Pradesh, reported in (2002) 5 SCC 371, the Supreme Court defined the term 'abet', meaning thereby "to aid, to assist or to give aid, to command, to procure, or to counsel, to countenance, to encourage, or encourage or to set another one to commit". If a person is present who, if absent, would have been liable to be punished as an abettor, is deemed under Section 114 of the IPC to have committed the crime. The Page 34 of 37 Downloaded on : Wed Feb 14 20:46:05 IST 2024 NEUTRAL CITATION R/CR.A/1149/2016 JUDGMENT DATED: 14/02/2024 undefined meaning of the section is that, if the nature of the act done constitutes abetment, then if present, the abettor is deemed to have committed the offence, though in point of fact another person actually committed it.
38. As evident from the record, on the date of the incident, all the accused had come to the house of the deceased Lilaben at about 5:00 p.m. when she was alone at her house and quarreled with her using abusive language. Thereafter, at about 7:00 p.m. all the accused had again come to the house of the deceased and at that time the accused no.1 was carrying a can of kerosene. Knowing-fully well this fact, all the appellants-accused had come to the house of the deceased Lilaben and started quarreling with her and tried to caught hold of the deceased, therefore, Lilaben ran to the house of her aunt Savitaben and all the appellants- accused chased her and thereafter the accused nos.3 to 6 caught hold of Lilaben; meaning thereby, they restricted the movement of the deceased Lilaben, and at that time, the accused no.1 had poured kerosene on her body and the accused no.2 had set her ablaze by lighting a matchstick. Thus, the presence and participation of all the accused in the offence is established. Page 35 of 37 Downloaded on : Wed Feb 14 20:46:05 IST 2024
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39. On the overall appreciation of the entire materials on record, we find that the prosecution has proved the case of murder beyond reasonable doubt by production of evidence of the eye-witness, who is none other than the aunt of the deceased Lilaben along with the evidence of PW8 - Savitaben Kanchanbhai Vasava, PW19 - Dr.Sureshnandan Ramnarayan Yadav, PW18 - Dr.Dilipkumar Kantilal Patel, PW14 - Executive Magistrate Shri Dhanabhai Khalpabhai Vasava and PW17 - PSI Shri Govindbhai Mansingbhai Rathwa. We do not find any reason to disbelieve such evidence. The appeal is, thus, devoid of any merits and is accordingly dismissed. The judgment and order of conviction dated 15th March 2016 rendered by the learned 6 th Ad-hoc Additional Sessions Judge, Ankleshwar, District Bharuch, in the Sessions Case No.123 of 2013 is hereby confirmed. Bail bond, if any, stands cancelled. Records and proceedings be sent back. Page 36 of 37 Downloaded on : Wed Feb 14 20:46:05 IST 2024
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40. In view of the judgment passed in the main Criminal Appeal itself, the applications seeking suspension of sentence would not survive and the same are disposed of accordingly.
(A. S. SUPEHIA, J.) (VIMAL K. VYAS, J.) After the pronouncement of the judgment, learned advocate Mr.Ramnandan Singh for the appellants-accused has submitted that some of the accused persons are on bail and since the appellants-accused want to prefer an appeal before the Supreme Court, he requested that four weeks' time may be granted.
The request appears to be reasonable and is acceded to. The appellants-accused are granted four weeks' time to surrender.
(A. S. SUPEHIA, J.) (VIMAL K. VYAS, J.) /MOINUDDIN Page 37 of 37 Downloaded on : Wed Feb 14 20:46:05 IST 2024