Gujarat High Court
Jagdishgiri Khimgiri vs State Of on 6 March, 2013
Author: M.R.Shah
Bench: M.R. Shah
JAGDISHGIRI KHIMGIRI....Appellant(s)V/SSTATE OF GUJARAT....Opponent(s)/Respondent(s) R/CR.A/1456/2006 CAV JUDGEMNT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL NO.
1456 of 2006 With CRIMINAL APPEAL NO. 1590 of 2005 FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE M.R. SHAH and HONOURABLE MR.JUSTICE S.H.VORA ================================================================ 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 ?
================================================================ JAGDISHGIRI KHIMGIRI....Appellant(s) Versus STATE OF GUJARAT....Opponent(s)/Respondent(s) ================================================================ Appearance:
MR GAJENDRA P BAGHEL, ADVOCATE for the Appellant(s) No. 1 MS SADHANA SAGAR, ADVOCATE for the Appellant(s) No. 1 MS CM SHAH APP for the Opponent(s)/Respondent(s) No. 1 Respondent No..2 Abated ================================================================ CORAM:
HONOURABLE MR.JUSTICE M.R. SHAH and HONOURABLE MR.JUSTICE S.H.VORA Date : 06/03/2013 COMMON CAV JUDGEMNT (PER : HONOURABLE MR.JUSTICE S.H.VORA) Jagdishgiri Khimgiri - accused No.1 and Muktaben Khimgiri Rajgiri - accused No.2 were facing trial for the offence punishable under Sections 302, 304(B), 498(A) and 114 of the Indian Penal Code (for short I.P.C. ) and Section 4 of the Dowry Prohibition Act (for short, the said Act ). Vide judgment and order dated 16.04.2005 passed by the learned Additional Sessions Judge and F.T.C., Junagadh in Sessions Case No.76 of 2003, the learned trial Judge convicted accused No.1 Jagdishgiri for the offence punishable under Section 302 of I.P.C. and sentenced him to undergo imprisonment for life and to pay fine of Rs.500/- and in default, to undergo simple imprisonment for one month and whereas, he was acquitted from the offence punishable under Sections 304(B), 498(A) and 114 of I.P.C. and Section 4 of the said Act and accused No.2 was given clean chit and thus, she acquitted from the offence punishable under Sections 302, 304(B), 498(A) and 114 of I.P.C. and Section 4 of the said Act.
2. Being aggrieved and dissatisfied with the impugned judgment and order, accused No.1-Jagdishgiri Khimgiri preferred Criminal Appeal No.1456 of 2006 under Section 374 of the Code of Criminal Procedure, 1973 (for short, the 'Code') whereas, the State of Gujarat also being aggrieved and dissatisfied with the said judgment and order, so far as acquittal of accused No.1 Jagdishgiri from the charge of offence under Sections 304(B), 498(A) and 114 of I.P.C. and Section 4 of the said Act and acquittal of accused No.2 Muktaben Khimgiri from the charge of offence under Sections 302, 304(B), 498(A) and 114 of I.P.C. and Section 4 of the said Act, preferred Criminal Appeal No.1590 of 2005 under Section 378(1)(3) of the Code.
3. Since both these appeals are arising out of the same judgment and order passed by the learned Additional Sessions Judge and F.T.C., Junagadh in Sessions Case No.76 of 2003, we are disposing of both these appeals by this common judgment so as to avoid repetition of facts and findings.
4. Pending hearing of Criminal Appeal No.1590 of 2005, accused No.2 Muktaben Khimgiri died on 20.12.2011 and, therefore, appeal against her was ordered to be dismissed as abated.
5. As per the facts of the prosecution case, one Gulabgar Dhangar Meghnathji (hereinafter referred to as the 'complainant') residing at village Kadach, Taluka-Madhavpur lodged complaint on 17.07.2003 vide I-C.R.No.155 of 2003 registered with Keshod police station against the accused persons to the effect that his eldest daughter namely Ranjanben married to accused No.1 Jagdishgiri about 20 months ago before the date of incident i.e. 09.07.2003 in a mass marriage held at Keshod. On festival times, daughter of the complainant and her husband i.e. accused No.1 used to visit his place. But on initial stage of pregnancy of said Ranjanben, she came at her parental home for delivery of her child and during her stay, she disclosed that accused No.2 (died pending appeal) was taunting her for not bringing anything at the time of marriage and also accused No.1 used to beat her for that reason. During her stay at her parental home, she delivered girl child and as per their customs, when accused No.1 came at the complainant's place, at that time, the complainant stated that only if the parents of accused No.1 including accused No.1 give an undertaking in writing assuring that they would not make any unlawful demand or exercise any torture or pressure on his daughter Ranjanben then and then only, the complainant would send Ranjanben to her matrimonial home. Accordingly, one undertaking was prepared in the office of advocate Mr.Vijay Goswami and came to be executed between the parties on 03.04.2003 at Keshod. Thereafter, Ranjanben resumed her matrimonial home but as and when she visited her parental home, she made grievances about the conduct of the accused Nos.1 and 2.
6. On 09.07.2003 at 7 o clock, one Ganagbhai neighbour of Ranjanben s matrimonial home made a call to the complainant which was received at his neighbour's home disclosing that his daughter Ranjanben and her daughter namely Munniben (newly born child aged 8 months) both were burnt and the infant had died. On receiving the message, the complainant rushed to Keshod with his wife and sister-in-law Madhuben. On reaching Keshod, they met one Ms.Dayaben (wife of his elder brother), who informed them that deceased- Ranjanben has been taken to Junagadh hospital. On reaching Junagadh hospital, the complainant found that deceased - Ranjanben was under treatment and upon inquiry, she informed that her husband and mother-in-law i.e. accused persons herein had threatened her to state that she got burn injuries accidentally due to fall of fire lamp. At that time, she also disclosed that, in fact, her husband had beaten her and he poured kerosene on the mattress upon which they threw her and her infant daughter by keeping the infant forcibly on her lap. As she tried to get up, accused No.1 pulled away the daughter and threw her into the burning mattress and also forced deceased Ranjanben to remain on the burning mattress. While accused No.1 was doing so, he got burnt and so he left the room and the deceased followed him and she fell unconscious.
7. One Mr.Ganga Bhoja rickshaw driver, at the instance of Punjabhai, took the injured Ranjanben and accused No.1 Jagdishgiri at Community Health Center, Keshod at about 4:45 a.m. where, Dr.J.O. Madhak, Medical Officer treated her and also informed Keshod police station on telephone and referred said Ranjanben to the civil hospital, Junagadh for further treatment. Dr.H.K. Dholiya, Medical Officer, Community Health Center, Keshod performed postmortem on the dead body of Munniben i.e. the daughter of injured Ranjanben and accordingly, police witness Mr.Jivabhai N. Ram was entrusted with the investigation of AD No.49/03 by Mr.C.A. Chudasama, P.S.O., Keshod. As the injuries of said Ranjanben were serious, she was shifted at General Hospital, Junagadh and she came to be admitted in the said hospital at about 7:45 a.m. in burns ward. On receipt of Yadi dated 09.07.2003 at about 10:00 a.m., the Executive Magistrate, Junagadh - Mr.B.J. Chaniyara recorded dying declaration after inquiring as to the status of the injured Ranjanben from Dr.D.G. Solanki and also of accused No.1 Jagdishgiri. After getting opinion as to mental condition of injured Ranjanben from Dr.Solanki, after and before recording dying declaration, Executive Magistrate - Mr.B.J. Chaniyara recorded the statement of injured Ranjanben and thumb impression was also obtained at the end of the said dying declaration.
8. As per the prosecution case, injured Ranjanben took treatment at Junagadh hospital for about 4 days and when she was under treatment at the said hospital, the complainant requested the District Magistrate, Junagadh to re-record the dying declaration of injured Ranjanben and for taking criminal action against the accused, inter alia, making allegation against the accused persons that they have threatened his daughter-Ranjanben to state that due to fall of fire lamp accidentally, she sustained burn injuries otherwise, she would be killed. The complainant made such complaint as it was apprehended by the complainant that injured Ranjanben would have given such dying declaration. In pursuance to such complaint being made by the complainant on 13.07.2003, Mr.P.R. Bhatt, Executive magistrate, upon instructions of the District Magistrate, recorded dying declaration of injured Ranjanben from 16:55 to 17:25. The said Executive Magistrate, before and after completion of the dying declaration, obtained an endorsement of the Medical officer Dr.N.N. Vedia about consciousness of injured Ranjanben. On completion of said dying declaration, the Executive Magistrate Mr.P.R. Bhatt obtained right thumb impression of injured Ranjanben.
9. On 14.07.2003, injured Ranjanben was shifted at G.G. Hospital at Jamnagar where, she succumbed to the injuries at about 2:45 pm. and, therefore, the aforesaid crime was registered against the accused persons as per complaint dated 17.07.2003. The investigation was carried out by P.W. Nos.22 to 24. Inquest panchnama was drawn at Jamnagar by Dr.Sunilchandra Bhatt. The Investigating Officer recorded statement of various witnesses, drawn panchnama of the place of incident, seized incriminating materials at the place of offence and prepared map of scene of offence through circle inspector. On completion of investigation, the chargesheet came to be filed against both the accused in the Court of learned Judicial Magistrate First Class at Keshod who, in turn, committed the case to the Court of Sessions at Junagadh.
10. On 26.02.2004, the learned Additional Sessions Judge, Junagadh framed charge against both the accused persons vide Exh.6 for the offence punishable under Sections 302, 304(B), 498(A) and 114 of I.P.C. and Section 4 of the said Act to which, the accused pleaded not guilty. Therefore, the prosecution examined as many as 24 witnesses and produced documentary evidence and proved various documents as recorded hereinbelow.
11. In order to bring home charge, the prosecution has led following oral and documentary evidence to prove its case against the accused.
Oral Evidence:-
PW Ex no Name of witness 1 14 Dr. Sunilchandra Bhatt 2 19 Dr. Hiteshkumar Kanjibhai Dholia 3 38 Somgar Hiragar 4 40 Nanjibhai Ramjibhai 5 42 Goganbhai Ukabhai 6 48 Dr. Janakrai Oghavjibhai Madhak 7 55 Bhupatlal Jamnadas Chaniyara 8 59 Dr. Dhansukhbhai Govindbhai Solanki 9 61 Pithabhai Ramjibhai Bhatt 10 64 Dr. Narendrakumar Narandas Vedia 11 69 Gulabgar Dhangar 12 73 Premgar Trikamgar 13 74 Kanchanben w/o Gulabgar 14 75 Rameshgar Mansukhgar 15 76 Punjabhai Bhurabhai 16 77 Shantaben Chhagangar 17 78 Ashwin Nanjibhai 18 79 Ganga Bhoja 19 80 Monghiben w/o Punjabhai 20 89 Chanabhai Arjanbhai Chudasama 21 97 Jivabhai Naranbhai Ram 22 98 Bharatkumar Chunilal Thakar 23 102 Sumangani Mohammad Chopra 24 103 Dilipsinh Raghuvirsinh Gohil Documentary Evidence:-
EX.
No. Particulars of Documents 16/ 28 Inquest Panchanama Of Ranjanben-dt. 14.07.03 from 15.15 to 15.45 17/29 Police Report to civil surgeon for postmortem of deceased Ranjanben 18 Report of a postmortem examination of deceased Ranjanben dt 17.07.03 from 5.35-6.30 20 Yadi for postmortem examination of deceased Munniben age 8 months 21/25 Inquest Panchanama of Munniben d/o Jagdishgiri-dt. 9.07.03 from 11.15 to 11.45 22/26 Police Report to civil surgeon for postmortem of deceased Munniben Jagdishgiri 23 Report of a postmortem examination of deceased Munni Jagdishgiri dt. 9.07.03 from 12.30 to 1.30 pm. 27 Receipt received dead body of Munniben 30 Receipt received dead body of Ranjanben 31 Panchanama of body condition of accused Jagdishgiri 32 Muddamal Ravangi Note 33 Receipt of FSL received muddamal 34 Forwarding Letter of FSL 35 FSL report 36 Forwarding Letter of FSL 37 FSL report 39 Panchnama of scene of offence:- Date & Time on the day of incident- 9.07.2003 from 14.00 to 14.30-during the investigation of AD 49 /03 Keshod police station 41 Panchnama of scene of offence in presence of FSL Officer date & time on the day of incident- 18.07.2003 from 10.00 to 11.30 during the investigation of I- CR NO. 155/03 Keshod police station by Pl Keshod 43 Letter of Dist jail Junagadh to Dist jail Jamnagar referring Jagdishgiri 49 Medical Certificate of Ranjanben dated 9.07.03 50 Case paper of Ranjanben 51 Medical Certificate of Jagdishgiri (accused) dated 9.07.03 56 Yadi to Executive Magistrate Junagadh for recording dying declaration of Ranjanben & Jagdishgiri 57 Dying Declaration of Ranjanben before Executive Magistrate Junagadh 58 Dying Declaration of Jagdishgiri before Executive Magistrate Junagadh 60 Case paper of Ranjanben 62 Yadi to Executive Magistrate Junagadh for recording II dying declaration of Ranjanben upon instruction of District Magistrate Junagadh & R.D.C. Junagadh 63 Dying Declaration of Ranjanben before Executive Magistrate 65 Refer note CHC Keshod Hospital to General & CMZ Hospital Junagadh 66 Medical certificate of Ranjanben 67 Medical Certificate of Jagdishgiri 70 Agreement of settlement 71 Application given by the father of Ranjanben addressing to the District Magistrate Junagadh Dated 13.07.03 for recording the II DD & taking action against the accused person as his daughter & grand daughter burn by them and Munniben died in the said incident 72 Complaint of the father of Ranjanben 85 Yadi to Circle Inspector to prepare a Map 87 MAP 90 Extract AD register of Keshod 91 Report to HC J.N. Ram Hospital duty HC Keshod from PSO Keshod 92 Report of DYSP Keshod 94 Special Report of offence 95 Copy of FIR 96 Extract of Station Diary 99 Report of police HC GG Hospital duty city B Jamnagar to PI city B Division 101 Extract AD register of Keshod 104 FSL mobile report 107 medical case papers of Ranjanben
12. The learned Additional Sessions Judge, after appreciating the evidence on record and after examining the principles of law as cited at the Bar, came to the above conclusion and, therefore, both these appeals.
13. Now, it is right time to briefly narrate the gist of the prosecution case in light of the oral and documentary evidence so as to have better reassessment, re-appreciation and re-evaluation of the evidence in these appeals.
13.1.
P.W. No.1 Dr.Sunil B. Bhatt, Medical Tutor in Forensic Medicine Department, M.P.Shah Medical College was examined at Exh.14. He, in panel with Dr.P.C. Vaghela, conducted postmortem of the dead body of deceased Ranjanben on 14.07.2003. He noted the physical condition of dead body and recorded external injury in column No.17 of the P.M. note which he has noticed during postmortem. During the postmortem examination, he found that the body has 45% to 50% burn injuries. All those injuries were ante mortem and cause of death was due to infection of burns. The witness has been cross-examined by the defence. He admitted that if there would not have septic, the patient might have survived. He also admitted that he could not opine as to death of deceased-Ranjanben was homicidal, suicidal or accidental.
13.2.
P.W.No.2 Dr.Hiteshkumar K. Dholia, examined at Exh.19, was the then Medical Officer at C.H.C., Keshod. On 09.07.2003, he received one AD No.49/03 of Keshod police station along with dead body of one Munniben, aged 8 months, daughter of accused No.1 with Yadi to perform postmortem on the dead body and further to opine as to the cause of death. During the postmortem examination, he recorded various external and internal injuries sustained on the dead body and found that those injuries were ante mortem and cause of death was cardio respiratory arrest due to extensive burns. In cross examination, he admitted that if any child gets burn injury accidentally, then the injury noticed by him is possible.
13.3.
P.W. No.3 Somgar Hiragar, examined at Exh.38, is one of the panchas of the panchnama of the scene of offence. He has supported the panchnama of the prosecution case and there is no cross examination on the part of the defence.
13.4.
P.W. No.4 Nanjibhai Ramjibhai, examined at Exh.40, is one of the panchas of the panchnama of the seizure of incriminating articles collected in presence of officer of FSL from the scene of offence which is placed at Exh.41. He identified his signatures on the panchnama but he did not support the prosecution case as to the contents of the panchnama being recorded by the concerned police in his presence.
13.5.
P.W. No.5 Goganbhai Ukabhai, examined at Exh.42, is one of the panch witnesses of panchnama of investigation of scene of offence drawn in presence of F.S.L. officers which is placed at Exh.41. In his presence muddamal article Nos.1 to 6 came to be seized and he identified the seizure of all those muddamal articles before the Court. The defence cross examined the said witness but nothing has been elicited from this witness to disbelieve the said panchnama at Exh.41.
13.6.
P.W. No.6 Dr.Janakrai O. Madhak, examined at Exh.48, was the then Medical Officer at C.H.C., Keshod. According to him, on 09.07.2003 at 4:45 am., the deceased Ranjanben along with her parents-in-law and husband came for treatment without police yadi. On examination, he found burn injuries on both the hands and on the stomach part and on the back of the deceased- Ranjanben and as per his opinion, all the burn injuries were fresh and after primary treatment, he has telephonically informed the Keshod police station. Thereafter, he referred deceased Ranjanben for further treatment to the Civil Hospital, Junagadh. According to him, when deceased-Ranjanben was brought to C.H.C., Keshod, she was conscious. At that time, he also gave treatment to accused No.1 Jagdishgiri and he found burn injuries on his both hands, chest and shoulder and also on the right knee. Similarly, he was also referred to the Civil Hospital, Junagadh for further treatment and he telephonically informed to the Keshod police station. In cross examination, he admitted that he could not give definite opinion as to whether the incident was accidental or not. During the course of treatment, he talked with Ranjanben and she informed that because of burns, she sustained injuries. According to him, both the patients stayed at C.H.C. Keshod for half an hour. He admitted that deceased-Ranjanben has not given any history as to the cause of injury was due to fire ignited by accused No.1.
13.7.
P.W. No.7 Bhupatlal Jamnadas Chaniyara, examined at Exh.55, was the Executive magistrate, Junagadh. According to him, at about 10:00 am. on 09.07.2003, he received a Yadi Exh.56 from the dispensary police chowky, Junagadh and he was required to record the dying declaration of deceased-Ranjanben and injured accused No.1. Immediately, he rushed to the Civil Hospital and met Dr.Solanki, who introduced deceased Ranjanben where she was under treatment. The said doctor informed that the patient Ranjanben was conscious and he started recording of dying declaration after ensuring that all the relatives moved outside the room. When the dying declaration was recorded, P.W.No.7 ensured that except himself, Dr.Solanki and Ranjanben, none remained present. He obtained endorsement of Dr.Solanki on dying declaration to the effect that the patient was fully conscious. He recorded dying declaration in question answer form. In reply to the question as to how the incident took place and whether you had any objection (quarrels/dispute) or grievance with your husband, the reply of the deceased, after free English translation, can be usefully referred as under:-
"(i) Question :- How this incident has taken place.
Answer :- On today at 4-00 O'clock in early morning, after sprinkling kerosene on cotton-beds (mattresses) and quilts remained on bedstead, after closing the gate of room, my husband has burnt these mattresses-quilts with match-stick and after pushing me, after seating me by high-handedness on these burning bedstead and after seating my daughter also with me on these burning mattresses, my husband also sat with on these mattresses. On burning the clothes of our all three members, all we three (persons) after coming down, after coming out from the room shouted as 'save, save'. Therefore, my parents-in-laws residing adjacent awoke, after saving us, they took (us) at Keshod Government hospital by rickshaw and from there has brought here for treatment.
(ii) Question :- Whether you have any objection (quarrel/dispute) or grievance with your husband.
Answer :- My husband was seeing with the sight of doubt against me. Therefore, quarrels were being taken place frequently between us. After my marriage, as I became pregnant, I went to the home of my parents at seventh month for delivery and on ninth month, a daughter was born. My husband did not come to take me at his home till the age of 6-7 months of my daughter. Afterwards, he has taken (me) after making compromise only before two months. The whole night of this incident, unnecessary discussion took place between us - both husband-wife and we also did not sleep. My husband stated that we all three (persons) altogether have to die by burning. By stating such this incident has happened."
According to this witness, he prepared dying declaration which he identified at Exh.57 and stated that the said dying declaration was written in his own hand writing and he read over the same to Ranjanben and thereafter, he obtained the right thumb impression of Ranjanben. Below the dying declaration, he obtained certificate of Dr.Solanki about the consciousness of the patient and he also signed the dying declaration. In cross examination by the defence, he admitted that as per Yadi Exh.56, he was required to take dying declaration of deceased-Ranjanben and accused No.1-Jagdishgiri and accordingly, he recorded dying declaration of both of them. He denied the suggestion that the fact stated in evidence as to relatives of the deceased Ranjanben were moved out of the room was inserted subsequently. He denied the suggestion as to no opinion has been obtained from the doctor about mental condition of the patient. He denied the suggestion that the patient was not in a condition to speak anything. Further, he denied that deceased-Ranjanben was tendering contradictory reply. He further denied that he recorded answer as stated by the father of deceased-Ranjanben i.e. complainant and because of that reason, he has not taken signature of the patient but took right thumb impression. Lastly, he denied the suggestion that deceased-Ranjanben stated that they were sleeping at night and at that time, fire lamp was fell on them and they sustained burn injuries.
13.8.
P.W. No.8 Dr.D.G. Solanki, examined at Exh.59, was the then Medical Officer at Civil Hospital, Junagadh. This witness stated that when he was serving as Medical Officer on 09.07.2003, Executive Magistrate Mr.Chaniyara with police Yadi met him near burns ward and informed that as per police Yadi, he is required to take dying declaration of deceased-Ranjanben and, therefore, Mr.Chaniyara requested him to identify the patient and examine her and accordingly, he took him towards burns ward room No.2 at 10:05 a.m. He examined the physical condition of the patient before the Executive Magistrate and he found the patient fully conscious and accordingly, before commencement of dying declaration, he made such endorsement to that effect and further, he identified his endorsement on dying declaration at Exh.57. He further stated that no other relatives of the patient were present except Executive Magistrate and said Ranjanben. All throughout recording of dying declaration, he was present. On completion of dying declaration, this witness again made an endorsement after examining the patient and such endorsement as to patient being conscious made by him was identified before the Court. As per his say, the dying declaration was completed at 10:45 a.m. During the course of evidence, he brought case papers with him and he further stated that on page No.2 of the case papers, Exh.60, he has made such endorsement as to patient being conscious. In cross examination by the defence, he admitted that the time of his duty on the said day was starting at 9:00 am. The patient was brought at 7:45 am. Immediately, on admission, the treatment was started and unsuccessful attempt was made to bring on record that before the dying declaration was recorded, patient-Ranjanben was given injection namely, Fortwin . As such, in case papers, it is recorded that said injunction has been administered after recording of dying declaration. He denied the suggestion that he put his endorsement subsequently. He denied the suggestion that the dying declaration is not recorded in his presence and he was also not present during time when the dying declaration was recorded. He further denied that he put his endorsement after completion of dying declaration. He admitted that on page No.2 of Exh.60, there is a history of accidental burns and he recorded the same after asking the patient.
13.9.
P.W. No.9-Pithabhai Rambhai Bhatt, examined at Exh.61, was the Executive Magistrate, Junagadh. When he was on duty on 13.07.2003, he received Yadi Exh.62 from constable on duty of Junagadh Hospital for recording 2nd dying declaration of patient Ranjanben at the instructions of the District Magistrate, Junagadh. Simultaneously, he also got this message on telephone from the District Magistrate and so he reached at civil hospital at 16:50 and where he met Dr.Vedia, who was on duty. Dr.Vedia took him to the burns ward where, patient was under
treatment. This witness inquired from Dr.Vedia whether patient Ranjanben was conscious. The doctor replied him after examining the patient that the patient was conscious and was further in a position to give dying declaration. Accordingly, the said doctor made his endorsement to that effect on dying declaration and thereafter, he started recording of the dying declaration in question-answer form, if freely translated in English, reads as under:-
"(i) What has happened to you?
Answer: By sprinkling kerosene on me, my husband and mother in law have set me ablaze.
(ii) Where and when have you been set ablaze?
Answer: I have been set ablaze at the place of my mother in law in the early morning before four days from today.
(iii) Who has saved you and extinguished the fire?
Answer: By spreading kerosene in the bedding, my husband had made myself and my daughter sit therein and set we mother - daughter ablaze. While, we were getting out of the house while burning, he had snatched my daughter, by dashing her in the wall, he had thrown her in the fire. Therefore, she was succumbed to burning in the fire and I have also got burnt. Thereafter, they had again escaped by confining we mother daughter in the room. Thus, I myself has extinguished the fire and opened the room.
(iv) Why have you been set ablaze?
Answer: I had brought less money or articles received in a way of gift in my marriage. Therefore, my mother in law, husband used to taunt me such What have you brought from house of your father? By saying in such a way, they used to harass me everyday. Though, I was tolerating. While, I had gone for the delivery, thereafter, the conciliator had again brought me by saying we will never tell you anything in future . Thereafter, they had started excessive harassment to me.
(v) Whether you were unwanted to your husband or there was an objection of the money or articles received in a way of gift in your marriage?
Answer:-
They were feeling the money or articles received in a way of gift was less.
(vi) Whether have you been beaten up apart from burning?
Answer:
Yes. While I was burnt, I was shouting save me, save me . Therefore, he had sticked to my neck and he had bitten me throughout my body. I have been set ablaze to cause my murder only. My one leg, two hands and stomach have been burnt.
(vii) While you came at the hospital, whether your husband or mother in law have told you anything?
Answer:
Yes. My husband and my mother in law have such told Dictate that you have got burnt by the kerosene , otherwise they have threatened me such we will kill you .
According to this witness, he prepared dying declaration which he identified at Exh.63 and stated that the said dying declaration was written in his own hand writing and he read over the same to patient-Ranjanben and thereafter, he obtained the right thumb impression of patient. According to this witness, when dying declaration was recorded, he himself, Dr.Vedia and patient were alone in the room. In cross examination of this witness by the defence, he has admitted that he has recorded dying declaration of patient Ranjanben as per the order of Collector. When he went to take dying declaration, he was not having copy of first dying declaration and he was also not aware about the contents of the first dying declaration. He denied the suggestion as to his meeting with the father of patient-Ranjanben. He admitted that he has not inquired about the father of patient-Ranjanben. He did not inquire from patient-Ranjanben as to why second dying declaration was required. He denied the suggestion to the effect that he recorded dying declaration as stated by the father of patient-Ranjanben.
13.10.
P.W.No.10 - Dr.Narendrakumar Narandas Vedia, examined at Exh.64, was the then medical officer at civil hospital, Junagadh. According to him, patient-Ranjanben was referred by C.H.C., Keshod for further treatment. As per refer note Exh.65, patient-Ranjanben was brought by Mr.Punja Bhura and Rameshgiri Mansukhgiri for treatment on 09.07.2003 at 7:45 a.m. On his inquiring about the incident, the said two persons informed him that the incident has occurred at the time when patient Ranjanben was sleeping at her home and at that time, fire lamp fell on her. It was further stated by them that the incident had occurred at 3:00 am on the said day. On examination, he noted five burn injuries on various parts of body of patient-Ranjanben as per certificate Exh.66. According to him, when the patient was brought to the hospital, she was conscious and he identified the case papers produced before the trial court at Exh.60. He further stated that he introduced patient Ranjanben to the Executive Magistrate on 13.07.2003, who has come to the hospital for recording dying declaration. He made an endorsement about patient-Ranjanben being conscious both before and after completion of dying declaration at 4:55 to 5:25. He further identified his such endorsement on dying declaration at Exh.63. In cross examination, he has admitted that the history which is recorded in case paper Exh.60, is written by him as per the say of patient Ranjanben. According to the said history, the incident was occurred accidentally. He further admitted that due to fire burns, it is not possible to opine as to whether injuries are accidental, suicidal or homicidal in nature.
13.11.
P.W. No.11-Gulabgar Dhangar, examined at Exh.69, happens to be the unfortunate father of deceased-Ranjanben and grand father of deceased Munni. According to him, his daughter Ranjanben married to accused No.1 before about 20 months prior to the incident dated 09.07.2003 at Keshod when mass marriages were held. As Ranjanben was pregnant, she came at his place and at that time she stated that the accused i.e. her husband and mother-in-law were taunting her for not bringing dowry. Thereafter, she delivered girl child i.e. Munni. After three months of delivery, accused No.1 came at complainant's place i.e. Kadach to bring Ranjanben back to her matrimonial home. As there was torture to Ranjanben, she was not happy to resume her matrimonial home and so, at that time, accused No.1 left and the complainant told him to send his parents and mediators/leaders. After 3 to 4 days, complainant's nephew Rameshgar Mansukhgar send a message to come at Keshod and accordingly, the complainant, one Mr.Bhagwanji and Mr.Motigar went at Keshod where, complainant insisted for assurance to keep her daughter properly and further insisted for such undertaking in writing. Accordingly, necessary undertaking was prepared at the office of advocate Mr.Vijaybhai and on the said undertaking, father of accused No.1-Khimgiri, complainant, deceased-Ranjanben and other mediators put their signatures which is placed on record at Exh.70. After execution of such undertaking at Exh.70, father of accused No.1-Khimgiri took complainant's daughter with him. Said undertaking was executed on 03.04.2003. After execution of such undertaking, as and when deceased Ranjanben was visiting her parents, she was making complaint about torture exercised upon her. The witness further stated that he received a telephonic message from Gandabhai that Ranjanben had sustained burn injuries and her daughter Munni has died. So immediately, complainant, his brother-Bhagwanji and his wife-Madhuben, complainant's wife Kanchanben left for Keshod and on reaching Keshod, he got message that Ranjanben has been shifted at Junagadh hospital for further treatment and all of them went at civil hospital Junagadh. Thereafter, on reaching at civil hospital, Junagadh, he found Ranjanben under treatment at burns ward where, she informed that she was threatened to kill, if she would not attribute the injuries due to fall of fire lamp. Thereafter, deceased Ranjanben narrated actually how the incident took place. She told the complainant that accused No.1 brought 10 litters kerosene and thereafter, she was beaten and was given bites at about 3:00 am in the morning. Accused No.1 poured kerosene on mattress where, deceased Ranjanben was forcibly made to sit over it and kept infant forcibly on her lap and thereafter, they were ignited by match box. As deceased-Ranjanben tried to stand up so as to run away, at that time, accused No.1 took deceased Munni from her and thrown her into fire and thereafter, deceased
- Ranjanben was thrown into fire. During this process, accused No.1 sustained injury on his hands and as the accused No.1 left, deceased-Ranjanben followed him. According to this witness, deceased-Ranjanben could narrate only this much information to him. Thereafter, the complainant wrote a letter Exh.71 to the District Magistrate, Junagadh on 13.07.2003, inter alia, requesting to re-record the dying declaration of deceased-Ranjanben and further to take steps against the accused persons as the complainant was harbouring doubt that first dying declaration was written under threat, as aforesaid. According to this witness, thereafter, at about 10:00 am on 13.07.2003, he took deceased-Ranjanben at Jamnagar for further treatment and after about three hours, she succumbed to her injuries at Jamnagar. As per further evidence of the complainant, he has given complaint at Exh.72 to the police at Kadach. In cross examination of this witness by the defence, he admitted that when he came at Junagadh, his daughter-Ranjanben informed him that she has made statement to the Executive Magistrate to the effect that she sustained injuries due to fall of fire lamp. He has admitted that though he stayed at Junagadh for three days for treatment of Ranjanben, he has not approached to any police for giving complaint. The complainant further admitted that all throughout those three days, the police was available there and also when he took his daughter at Jamnagar, there was a police station. Yet he did not lodge the complaint or disclose about the cruelty to his daughter Ranjanben. In nutshell, at various stages, though the police was very much available, he did not disclose anything to any police. He further admitted that after marriage, accused No.1 and deceased Ranjanben were staying separately from parents of accused No.1 and they started living separately after 8 months of the marriage. He further admitted that when he reached at Junagadh hospital, condition of Ranjanben was serious and she was unconscious but he denied as to her inability to speak. He admitted that at noon, she regain consciousness. He further denied suggestion that he did not lodge complaint for 8 days as the incident in question has occurred at the time when his daughter and accused No.1 were sleeping and at that time, fire lamp fell on them which resulted into burn injuries in question.
13.12.
P.W. No.12 - Premgar Trikamgar, examined at Exh.73, happens to be the relative of accused No.1. This witness is one of the mediators and signatories to the undertaking at Exh.70. As such, evidence of this witness does not throw much light on the incident in question and, therefore, it is not much relevant and important to be noted.
13.13.
P.W. No.13 Kanchanben W/o. Gulabgar, examined at Exh.74, happens to be the mother of deceased-Ranjanben. In examination-in-chief, she reiterated oral dying declaration as made to the complainant. In cross-examination, she admitted that when they reached at Junagadh hospital, deceased Ranjanben regained consciousness and acquired strength on seeing her family. The said witness was further cross examined at length but defence was not able to elicit any further evidence helpful to the defence.
13.14.
P.W. No.14 Rameshgar Mansukhgar, examined at Exh.75, happens to be the nephew of complainant. This witness stated about ill treatment to deceased-Ranjanben at the hands of the accused. At the instance of said witness, the mediators and parties to the undertaking Exh.70, came at Keshod and executed the said undertaking in writing and thereafter, deceased Ranjanben resumed her matrimonial home. According to this witness, when he was at civil hospital at Junagadh, deceased-Ranjanben disclosed as to how the incident in question has occurred. At that time, the said witness and parents of deceased-Ranjanben were present. This witness deposed same set of facts as to occurrence of incident as disclosed to father of deceased-Ranjanben i.e. the complainant. In cross examination, this witness admitted that when deceased-Ranjanben brought from Keshod to Junagadh, she was unconscious. According to him, when he stayed at hospital till parents of deceased Ranjanben came, deceased Ranjanben was unconscious. He admitted that he did not inquire about the incident from deceased Ranjanben during the half hour after her admission to the hospital at Junagadh. He admitted that though he stayed in hospital at Junagadh, he did not talk with deceased-Ranjanben about the incident. Except this, nothing is further elicited from this witness in the cross-examination.
13.15.
P.W.No.15 - Punjabhai Bhurabhai, examined at Exh.76, happens to be the landlord of the house, where deceased-Ranjanben and accused No.1 were residing. According to this witness, before three and half months of the incident, he has rented one room to accused No.1 at the rate of Rs.350/-. On the date of incident, at about 3:30 am., other tenant namely, Ashwinbhai came to this witness and informed that the smoke is coming out from the house of accused No.1 and doors are closed. When they reached at the house of accused No.1, he found burnt daughter of accused No.1 on cot. Thereafter, this witness took Ranjanben and accused No.1 to C.H.C., Keshod in the auto rickshaw of one Gangabhai Mer. According to this witness, thereafter, he took them at Junagadh civil hospital. As this witness turned hostile, the learned A.P.P. cross-examined him with the permission of the Court but nothing substantial was elicited from this witness.
13.16.
P.W. No.16 Shantaben Chhagangar, examined at Exh.77, happens to be the neighbour of accused No.1. According to this witness, deceased Ranjanben informed her that the accused i.e. her husband and mother-in-law were harassing her for not bringing sufficient dowry and she further stated that before Ranjanben went to her parental home for delivery purpose, she found injury on her eyes and when she asked her as to how and what happened in her eyes, deceased-Ranjanben told that accused No.1 had slapped her. This witness came to know about the incident when she reached at the house of accused No.1 where, she saw deceased-Ranjanben in burnt condition. At that time, deceased-Ranjanben requested this witness to change her saree and when she asked her as to what happened, in reply, deceased Ranjanben told her that she and her daughter had been burnt after sprinkling kerosene. When this witness told to deceased-Ranjanben that you should come out from the house, in reply to this, deceased-Ranjanben told her that her hands were tied and thereafter, kerosene was sprinkled and ignited. This witness further stated that both deceased-Ranjanben and accused No.1 were quarreling and further accused No.1 doubting on Ranjanben. In cross-examination by the defence, she has admitted that they were not in a good terms with the family of accused No.1 because of some dispute. She also admitted that they were not in visiting terms. She further admitted that she has not disclosed about torture received by deceased- Ranjanben either to her parents or to any other relative of deceased-Ranjanben and also about the incident of slapping. She admitted that she has not disclosed about the talk to the police which took place between her and deceased-Ranjanben. She further admitted that she did not inform this facts to anybody till her statement was recorded by the police.
13.17.
P.W. No.17 Ashwin Nanjibhai was examined at Exh.78. This witness happens to be the neighbour of accused No.1 and tenant of P.W. No.15
- Punjabhai. As such, this witness turned hostile and thus, not supported the prosecution case.
13.18.
P.W. No.18 Ganga Bhoja was examined at Exh.79. The said witness took injured-Ranjanben and accused No.1 to C.H.C., Keshod in his auto rickshaw. Except this, nothing is stated by this witness with regard to the incident in question.
13.19.
P.W. No.19 Monghiben W/o. Punjabhai, examined at Exh.80, happens to be the wife of P.W. No.15-Punjabhai i.e. the landlord of accused No.1. As such, this witness also turned hostile and nothing substantial has been elicited from this witness during her cross-examination by the learned A.P.P. 13.20.
P.W. No.20 Chanabhai Arjanbhai Chudasama, examined at Exh.89, was the then P.S.O. at Keshod policed station. This witness received telephonic message from P.W. No.2 Dr.H.K.Dholiya at about 10:30 am on 09.07.2003 and accordingly, he made entry vide AD No.49/03 as per Exh.90. Thereafter, he entrusted further investigation to P.W. No.21 Mr.J.N. Ram as per report Exh.91. According to this witness, on 17.07.2003, when he was in-charge of P.S.O., Keshod police station, police officer Mr.S.M. Chopra submitted one Yadi to register the offence in pursuance to one complaint recorded by him and produced original complainant and, therefore, he registered the offence vide I-C.R. No.155/2003 for the offence punishable under Sections 302,304(B),498(A) and 114 of I.P.C. and Section 4 of the said Act. He identified the complaint Exh.72 on the basis of which, he registered the offence and further, identified his signature. This witness also made a report to the J.M.F.C., Keshod under Section 157 vide Exh.93. Through this witness, the prosecution also produced report and entry made in station diary vide Ex.94 to 96. Lastly, this witness has deposed that the further investigation of the offence was entrusted to P.W. No.24 Mr.D.R. Gohil. In the cross-examination of this witness by the defence, nothing has been elicited by the defence but he has admitted in cross-examination that P.W. No.23 Mr.S.M. Chopra was investigating the incident vide AD No.52/03 from 15.07.2003. According to this witness, AD No.52/03 was in respect of offence in question and after showing original register, it appears in column No.77 that an entry has been made to the effect that the deceased died due to accidental burns during her treatment. Said entry has been made on 15.07.2003.
13.21. P.W. No.21 Jivabhai Naranbhai Ram, examined at Exh.97, was serving as Head Constable at dispensary, Keshod. This witness received report Exh.91 from P.S.O. Mr Chudasama, Keshod vide AD No.49/03 informing about death of Munniben, aged 8 months due to burn injuries and in pursuance to the said report Exh.91, he took over the investigation. He has drawn inquest panchnama of deceased-Munniben in presence of two panchas which is placed on record at Exh.25. He further prepared panchnama of the scene of offence in presence of two panchas on 09.07.2003 at about 14:00 and said panchnama has placed on record at Exh.39. As such, he recorded statement of neighbours in pursuance to AD No.49/03 and also informed Executive Magistrate to provide copy of dying declaration. Subsequently, since the offence was registered, he entrusted the investigation to P.W. No.24 Mr.D.R. Gohil. In cross-examination of this witness by the defence, nothing substantial has been elicited.
13.22. P.W. No.22 B.C. Thakar, examined at Exh.98, was on duty of P.S.O. He received papers of Jamnagar hospital with respect to deceased Ranjanben and, therefore, issued Yadi to Head Constable on duty at Jamnagar Hospital to prepare inquest panchnama and to arrange for postmortem of the dead body. On receipt of such papers, he registered AD No.52/03 at about 19:35 hrs. and he entrusted further investigation to P.W. No.23 Mr.S.M. Chopra as per report at Exh.100. In cross examination of this witness by the defence, he admitted that entry made in column No.7 of AD No.52/03 is recorded in his hand writing wherein, it is mentioned that deceased died due to accidental burn injuries during treatment.
13.23. P.W.No.23 S.M. Chopra, examined at Exh.102, was then serving as police officer at Keshod police station. According to him, on 15.07.2003, he was entrusted with the investigation of AD No.52/03 as per Yadi Exh.100 sent by P.S.O. Mr. Thakar (P.W.22). In pursuance to this, he recorded statement of neighbours residing nearby house of accused No.1 and thereafter, on 17.07.2003, he recorded complaint Exh.72 at Kadach. He identified complaint Exh.72 as the same complaint which was written by him and further identified the thumb impression of complainant Gulabgar. Thereafter, he gave report Exh.92 for registering the offence. In cross examination of this witness by the defence, he admitted that he has not recorded any statement on 15.07.2003. He admitted that he did not make any inquiry at C.H.C., Keshod. He further admitted that on the basis of papers of Jamnagar hospital, he came to know that deceased Ranjanben took treatment to Junagadh hospital and yet he did not think it fit to visit the civil hospital, Junagadh.
13.24. Lastly, P.W.24 D.R. Gohil, examined at Exh.103, has investigated the offence during the period from 17.07.2003 to 16.09.2003. Thus, he recorded the statement of neighbours of accused No.1 and relatives of the deceased. He also collected the papers in respect of AD Nos.49/03 and 52/03. He prepared panchnama of the scene of offence vide Exh.41 in presence of F.S.L. officers, prepared panchnama of body condition of accused No.1 on 18.07.2003 and arrested him, issued Yadi to Circle Inspector to prepare map of scene of offence and received Yadi from Jamnagar hospital about death of Ranjanben on 16.09.2003 and handed over the investigation to P.I. Gamit and thereafter, P.S.I. Mr.Ram filed chargesheet on 09.10.2003 in the Court of J.M.F.C., Keshod. In cross-examination of this witness by the defence, nothing substantial has been elicited except contradictions and omissions brought out on record of some of the witnesses examined by the prosecution.
14. The prosecution brought these much evidences on record during the trial in pursuance to the charge framed against the accused at Exh.6. The defence has not examined any witnesses in order to substantiate their case as to occurrence of incident due to accidental fall of fire lamp on mattress which resulted into the incident in question.
15. On conclusion of trial, the learned trial Judge pointed out incriminating circumstances appearing in the evidence to the accused persons. The defence of the accused persons was of denial/pleaded ignorance and accused No.1 further stated that the incident in question occurred due to fall of fire lamp accidentally. However, the parents of deceased Ranjanben, at belated stage, introduced false allegations in the complaint and implicated the accused in this case.
16. Learned advocate Mr.Baghel for the accused while vehemently arguing and showing infirmities in the multiple dying declarations on record, submitted that it is an admitted fact that all the three doctors, namely, P.W. No.1 Dr.Sunilchandra Bhatt, P.W. No.2 Dr.H.K. Dholiya and P.W. No.6 Dr.J.O. Madhak, gave consistent opinion that the cause of death may be suicidal, homicidal or accidental and coupled with the evidence in the form of history given by deceased Ranjanben to P.W. No.10 Dr.N.N. Vedia to the effect, in view of history given by her, the incident appears to be accidental, the learned trial Judge has erred in not giving benefit of doubt to the accused. While taking this submission further, it is submitted that the history given by deceased Ranjanben at Exh.60 read with certificate Exh.66 clearly states that she sustained burn injuries accidentally due to fall of fire lamp. According to him, history given by deceased Ranjanben ought to have been considered as first dying declaration. It is vehemently urged that if oral dying declaration made before P.W. No.16 - Shantaben Chhagangar and oral dying declarations made before P.W. No.11 Gulabgar Dhangar, P.W. No.13 Kanchanben wife of Gulabgar and P.W. No.14 Rameshgar Mansukhgar are considered, then they are not only self-contradictory but there are serious infirmities and, therefore, no reliance can be placed as they are at variance with each other to a large extent and there is no evidence to corroborate such oral dying declarations by other prosecution witnesses.
17. It is vehemently argued by learned advocate Mr.Baghel for the accused that deceased-Ranjanben made multiple dying declarations before the Executive Magistrate. The first written dying declaration Exh.57 had completely absolved accused No.2 Muktaben Khimgiri. Therefore, the second written dying declaration at Exh.63 made before the Executive Magistrate could not be made basis of conviction implicating accused No.2 in view of the facts and circumstances of the present case. So according to him, all the four oral dying declarations as well as two written dying declarations recorded by the Executive Magistrate are not only un-reliable but create lot of suspicion as the complainant, by pressurising the District Magistrate in view of application Exh.71 on 13.07.2003, got second dying declaration Exh.63 recorded through the Executive Magistrate. It is further submitted that there is no evidence with regard to demand of dowry and more particularly, settlement/undertaking Exh.70 is also silent on this regard and, therefore, any evidence brought on record through dying declaration in the form of oral dying declaration saying occurrence of incident was due to dowry demand is got up evidence and made with a view to falsely implicate accused Nos.1 and 2 in this case.
18. Per contra, learned A.P.P. Ms.C.M. Shah for the State submitted that if evidence of the doctors regarding accidental injury is scrutinized properly along with the nature of injury sustained by the deceased-Ranjanben, then it would become evident that the death of Ranjanben is homicidal. She has further urged that dying declaration Exh.57 is trustworthy and reliable and considering the evidence on record, the learned trial Judge has rightly recorded conviction against the accused Jagdishgiri. In her submission, the prosecution has established the fact that deceased was tortured for non fulfillment of demand of dowry and such fact is disclosed by the parents of deceased-Ranjanben and other witnesses more particularly, P.W. No.16 Shantaben Chhagangar. Learned A.P.P. submitted that P.W. No.8 Dr.Solanki is an independent witness and he stated that the deceased was conscious at the time when her dying declaration was recorded and such endorsement has been put on dying declaration Exh.57 before and after recording of dying declaration. Therefore, there is no reason as to why this witness should not be believed. Similarly, the evidence of P.W. No.9- P.R. Bhatt Executive Magistrate, who recorded the dying declaration Exh.63 is independent and he recorded dying declaration after taking all due care and nothing has been elicited by the defence that what is stated by this witness, could not be believed. In the matter of multiple dying declarations made by the deceased, which of the various dying declarations should be believed by the Court and for the proposition of law as to the principles governing such determination, she has relied upon the decision of the Hon ble Apex Court rendered in case of Shudhakar V/s. State of Madhya Pradesh reported in (2012)7 SCC
569. Lastly, it is urged by the learned A.P.P. that marriage span is hardly 20 months in this case and, therefore, the learned trial Judge ought to have raised presumption as to dowry death in view of the provisions in Section 113B of the Evidence Act and, therefore, accused Jagdishgiri ought to have been convicted for the offence punishable under Sections 304(B), 498(A) and 114 of I.P.C. and Section 4 of the said Act. Therefore, it is submitted by the learned A.P.P. that as there is no merit in the appeal preferred by the accused No.1 Jagdishgiri and none of the submissions made by the learned advocate for the accused are tenable, the same is required to be dismissed while appeal preferred by the State deserves to be accepted inasmuch as accused No.1 Jagdishgiri requires to be punished for the offence from which he has been acquitted by the learned trial Judge.
19. We have considered the rival submissions advanced in this appeal preferred by the accused No.1 Jagdishgiri and also in the appeal preferred by the State. Looking to the peculiar facts and circumstances of the case and considering the provisions contained in Sections 374 and 378 of the Code, we have reassessed and re-appreciated the whole evidence recorded during the trial. We have minutely examined the principles laid down in case of Shudhakar (supra) and also cases cited at Bar by the learned advocate for the appellant-accused No.1.
20. Before the evidence is re-appreciated, one fact is evident that deceased Ranjanben was not happy at her matrimonial home and, therefore, she was reluctant to resume her matrimonial home. Therefore, the complainant insisted for assurance from the accused and his family members to keep her daughter properly and further insisted for written undertaking Exh.70 which came to be executed on 03.04.2003. Thereafter, the deceased resumed her matrimonial home. In the undertaking Exh.70, the accused promised that he would see that deceased Ranjanben is not beaten or tortured and further, she would be respected as being one of the family members. In spite of this undertaking Exh.70, deceased Ranjanben and her daughter-Munni lost their lives prematurely in the incident took place on 09.07.2003.
21. Before the matter is taken on hand, one contention raised by learned advocate Mr.Baghel for the accused to the effect that the history given by deceased Ranjanben to P.W. No.10 Dr.Vedia examined Exh.64 is such that incident has occurred at the time when she was sleeping at her home and fire lamp fell on her at around 3:00 am on the said date. Accordingly, such history has been reduced into writing in the case papers Exh.60 when deceased Ranjanben was admitted at civil hospital, Junagadh on the date of incident at about 7:45 am. Such fact is further reflected in certificate Exh.66 issued by said witness P.W. No.10. Learned advocate for the accused has further relied upon the panchnama of the scene of offence Exh.39 where, pieces of glass bottle were found on the floor and, therefore, according to him, it supports the case of the accused that when they were sleeping, kerosene lamp fell down on the mattress and fire caught the mattress and in the incident, deceased Ranjanben and her daughter died. We are not at all convinced to accept the submission that incident in question has occurred accidentally. The obvious reasons are such that when deceased Ranjanben was shifted from C.H.C., Keshod to civil hospital, Junagadh, she accompanied by accused and her other relatives and she was not conscious till 9:00 am. In the cross-examination of P.W. No.13 Kanchanben w/o Gulabgar i.e. the mother of deceased Ranjanben, it has been elicited from her that deceased Ranjanben regained consciousness when they reached at civil hospital, Junagadh. It has come on record that P.W. No.13 and her husband reached civil hospital, Junagadh at about 9:00 am. In the cross-examination of P.W. No.14 Rameshgar Mansukhgar, in para 6, it has been elicited by the defence that when Ranjanben came from Keshod to civil hospital, Junagadh, she was unconscious and her parents arrived at Junagadh hospital after one and half hour on admission of Ranjanben at civil hospital, Junagadh. Whereas, in examination-in-chief of P.W. No.10 Dr.Vedia, in para 2, he has deposed that deceased Ranjanben was brought by Punja Bhura and Rameshgar Mansukhgar on 09.07.2003 at 7:45 am. for treatment. P.W. No.10 further deposed in the said para that on his inquiry as to how the incident occurred, then both these persons informed that when deceased Ranjanben was sleeping at home, fire lamp fell on her and she sustained injury. Strangely, in para 5 of his cross-examination, he deposed that he recorded such history as given by Ranjanben to him. Whereas, P.W. No.8 Dr.D.G. Solanki, who resumed duty at 9:00 am., recorded history of accidental burns after asking patient Ranjanben. This evidence clearly indicates that P.W. No.10 is not sure as to who gave him history of accidental injuries and furthermore, P.W.No.8 who was not on duty at 7:45 am. on 09.07.2003, he deposed to the effect that deceased Ranjanben gave history to him. So looking to this set of evidence with regard to the condition of deceased Ranjanben and conflicting evidence about history, it seems that she was not conscious or at least there is no evidence on record to infer that she was able to speak at least up to 9:00 am on the date of incident as it is not coming in the evidence of P.W. Nos.8 and 10. So the submission made by the learned advocate based on this evidence to believe us that deceased Ranjanben died due to accidental burn injuries is not acceptable. Therefore, we rule out the possibility of occurrence of incident due to fall of fire lamp accidentally on the basis of the evidence discussed hereinabove.
22. Now, this takes us to the four oral dying declarations made before P.W. Nos.11 Gulabgar Dhangar, P.W. No.13 Kanchanben w/o Gulabgar , P.W. No.14 Rameshgar Mansukhgar and P.W. No.16 Shantaben Chhagangar before 9:00 am on the date of incident. Out of these witnesses, before P.W. Nos.11, 13 and 14, deceased made an identical statement to the effect that accused No.1-Jagdishgiri brought 10 litters kerosene and thereafter, she was beaten and was given bites at about 3:00 am in the morning and the accused poured kerosene on mattress whereupon, deceased Ranjanben was forcibly made to sit over it and kept the infant forcibly on her lap and thereafter, they were ignited by match box. It is further disclosed to these witnesses, when deceased Ranjanben tried to stand up so as to run away, at that time, accused No.1 took deceased Munniben from her and thrown her into fire and thereafter, deceased Ranjanben was thrown into fire. When P.W. No.16 Shantaben Chhagangar, who came immediately after occurrence of incident, deceased Ranjanben informed her that her husband and mother-in-law were harassing her for not bringing sufficient dowry. The said witness found injury on the eyes of the deceased before she left for delivery and when she inquired as to how and what happened to her eyes, deceased Ranjanben told that accused No.1 slapped her and when this witness asked Ranjanben as to what happened, in reply thereto deceased Ranjanben told her that she and her daughter had been burnt after sprinkling kerosene. When this witness told to deceased Ranjanben why you did not came out from the house, in reply to this, deceased Ranjanben told that her hands were tied and thereafter, kerosene was sprinkled and ignited. In addition to this, it is deposed by P.W. Nos.11,13 and 14 that deceased Ranjanben was threatened by accused No.1 and accused No.2 Muktaben that if she did not attribute the injuries due to fall of fire lamp, she was threatened to kill.
23. We do not find it safe at all to rely upon oral dying declaration made by deceased Ranjanben before P.W. Nos.11, 13, 14 and 16 not because they are relatives of deceased Ranjanben but when it is their evidence before the Court that when they reached at civil hospital, Junagadh, she was almost unconscious and as per the evidence of P.W. No.11 Gulabgar Dhangar, he admitted in cross-examination that deceased Ranjanben regained consciousness at noon. Further, there is nothing mentioned about dowry demand in undertaking Exh.70. If at all any demand was made from the accused side, then the said fact would have been incorporated in the undertaking. On the top of it, all these witnesses did not disclose the factum of oral dying declarations made by the deceased Ranjanben to any of the police officers for almost about 7 days. Further, there is inconsistency in dying declarations of the deceased made before P.W. Nos.11,13 and 14 on one hand and before P.W. No.16 Shantaben on the other hand and, therefore, no reliance can be placed on such oral dying declarations made before these witnesses in view of attendant circumstances and the condition of deceased at the relevant time.
24. Now we are left with dying declaration Exh.57 and Exh.63, recorded by the Executive Magistrate. When we examined the evidence led in the present case in light of principles reinstated in case of Shudhakar (supra), we have no hesitation in coming to the conclusion that the dying declaration Exh.63 was not voluntarily made and not made by free will of the deceased as she was under influence of her parents but dying declaration Exh.57 was voluntarily made and the same is natural and reliable for the following obvious reasons.
24.1.
Dying declaration Exh.63 came to be recorded at the instructions of the District Magistrate, Junagadh in response to the complainant s application Exh.71 dated 13.07.2003. On reading of application Exh.71, it seems that the complainant was harbouring doubt that first dying declaration Exh.57 was written under threat given by accused persons. According to the complainant, the accused persons threatened deceased Ranjanben to give history of accidental burns due to fall of fire lamp as and when one officer comes. The dying declaration Exh.57 came to be recorded at 10:05 am on 09.07.2003 at civil hospital, Junagadh. When dying declaration Exh.63 was recorded, the complainant and his family members were present at civil hospital, Junagadh since her admission before four days. To eliminate dying declaration Exh.57, the complainant went to the extent to say before the Court that his daughter regained consciousness at noon. As such, on reading of dying declaration Exh.57, it is evident that deceased Ranjanben has neither made any allegation of cruelty due to non fulfillment of demand of dowry nor made any grievance or complaint against accused No.2 Muktaben. At this stage, it is relevant to recollect the settlement/undertaking Exh.70 where, no allegation of ill treatment is made against accused No.2 and at the same time, she was not party to that settlement/undertaking. This goes to suggest that accused No.2 Muktaben is implicated in this offence at the instance of the complainant and in order to see that accused No.2 Muktaben is falsely involved in this crime. So, the possibility that the complainant would have influenced his daughter Ranjanben could not be ruled out and, therefore, she came out with such a declaration qua accused No.2. Moreover, deceased Ranjanben has also made additional allegation against accused No.1 Jagdishgiri with regard to beating and dashing her daughter on the wall and then thrown her into fire. This version put forth in the dying declaration Exh.63 appears to be factually incorrect and such version is also not corroborated by any of the prosecution witnesses.
24.2. Dying declaration Exh.57 is reliable and truthful because the deceased has said that accused No.1 was seeing her with doubt. Again, this fact gets corroborated from the contents of settlement/undertaking Exh.70 wherein, accused No.1 Jagdishgiri gave assurance that he would give her all respect as his family member and further, he would not ill-treat her.
24.3. If we look at the manner and mode of incident as stated by deceased Ranjanben in dying declaration Exh.57 viz-a-viz the injuries sustained by accused No.1 Jagdishgiri on both hands, on chest, on both sides of back shoulders and on both knees of leg, it leaves no doubt in our mind that accused No.1 pushed deceased-Ranjanben on burning mattress. It is significant to note here that on the whole night of incident, there was an unnecessary discussion between the husband and wife i.e. accused No.1 and deceased Ranjanben and they did not sleep. So it seems that when the incident occurred, both of them were not sleeping and if at all any fire lamp fell down, then immediately precautionary measures could have been taken by the accused No.1 himself. But on the contrary, accused No.1 gave false reply in further statement that at the time of incident, he was sleeping. We are not impressed upon the submission made by the learned advocate for the accused that in dying declaration Exh.57, it is stated by deceased- Ranjanben that all three should die by burning together and therefore, it is a case of suicidal death. If at all, such words had been uttered by the accused No.1 at the relevant point of time than accused No.1 ought to have stated this fact in his further statement. At-least we can definitely infer that deceased-Ranjanben was not in favour of committing suicide.
24.4. The theory advanced by accused No.1 that deceased Ranjanben suffered injury due to accidental fire occurred on account of fall of fire lamp is neither probable nor possible in view of burn injuries suffered by her.
24.5. One more reason to infer dying declaration Exh.57 as reliable, trustworthy and natural is such that P.W. No.7 B.J. Chaniyara Executive Magistrate and P.W. No.8 Dr.D.G. Solanki are found to be independent witnesses. P.W. No.7 went to civil hospital, Junagadh in response to Yadi Exh.56 and he met P.W. No.8-Dr.Solanki, who introduced deceased Ranjanben. Said P.W. No.8 informed that deceased Ranjanben was conscious and after taking such endorsement on the dying declaration, he recorded dying declaration after ensuring that all the relatives are moved outside the room and then, he asked questions and deceased narrated that it was the accused No.1, who caused burn injuries in the manner as recorded hereinabove and prepared dying declaration Exh.57 where, deceased Ranjanben put her right thumb impression. Again P.W. No.8 made his endorsement to the effect that patient Ranjanben was fully conscious. Not only that, P.W. No.7 has himself ascertained consciousness of the deceased Ranjanben and thereafter, he took her right thumb impression on the dying declaration after reading over the same to her. Both these witnesses were cross-examined in detail. Except denial and certain suggestions to raise doubt about the endorsement being put subsequently, no material is elicited from both these witnesses. No doubt, one admission was elicited from P.W. No.8 in view of history Exh.60 to the effect that there was a history of accidental burns and he recorded the same after asking patient Ranjanben. In fact, this P.W. No.8 was not present when deceased Ranjanben was admitted at civil hospital, Junagadh at 7:45 am. and as per evidence of P.W. No.8, he resumed duty at 9:00 am. So nothing has been brought on record to disbelieve the independent and reliable evidence of P.W. Nos.7 and 8 so as to term dying declaration Exh.57 as untrustworthy or unreliable. Needless to say that both P.W. Nos.7 and 8 are independent witnesses coming from different department of the State and further, defence has not explained what would be the reason to depose against accused No.1 with whom, none of the witnesses had any grudge to say such declaration made by deceased as to occurrence of incident, as recorded hereinabove.
24.6. Lastly, accused No.1 Jagdishgiri in his further statement stated that he and his wife deceased Ranjanben were staying separately and they were living together and at that time, she caught fire. It was expected by him to explain as to how deceased Ranjanben and her daughter caught fire. Surprisingly, in his statement under Section 313 of the Code, he did not state story of fall of fire lamp due to which incident in question occurred. But on the contrary, he stated in his further statement that they were both at home at night and he did not know how and why the incident has occurred and he subsequently came to know that due to fall of fire lamp accidentally, incident in question has occurred. The trend of cross-examination of prosecution witnesses, more particularly, P.W. Nos.1,2,6 and other witnesses was to prove that incident in question has occurred accidentally due to fall of fire lamp. According to Section 106 of the Evidence Act, when any fact is within the knowledge of any person, the burden of proving that fact is upon him. In the instant case, accused No.1 failed to explain as to how the incident occurred when it has come on record that both of them did not sleep on the night of incident and they were alone at home.
So, considering the evidence on record, more particularly, dying declaration Exh.57 is authentic and natural one and, therefore, the learned trial Judge has rightly relied upon it so as to base conviction of accused No.1-Jagdishgiri and the learned advocate for accused No.1 failed to point out any infirmities in the findings recorded by the learned trial Judge in this regard. At this stage, it is fruitful to refer the law reiterated by the Hon ble Apex Court in case of Shudhakar (supra) in cases involving multiple dying declarations, which of the various dying declarations should be believed by the Court. In para 21 of the said judgment, the Hon ble Apex Court observed as under:-
21.
Having referred to the law relating to dying declaration, now we may examine the issue that in cases involving multiple dying declarations made by the deceased, which of the various dying declarations should be believed by the Court and what are the principles governing such determination. This becomes important where the multiple dying declarations made by the deceased are either contradictory or are at variance with each other to a large extent. The test of common prudence would be to first examine which of the dying declarations is corroborated by other prosecution evidence. Further, the attendant circumstances, the condition of the deceased at the relevant time, the medical evidence, the voluntariness and genuineness of the statement made by the deceased, physical and mental fitness of the deceased and possibility of the deceased being tutored are some of the factors which would guide the exercise of judicial discretion by the Court in such matters.
26. Keeping in mind the principle governing the determination as to which dying declaration should be believed as stated hereinabove, it can be concluded that death of the deceased was as a result of homicidal death and prosecution succeeded in proving that it was caused by the accused No.1 Jagdishgiri on 09.07.2003 at his residence by pouring kerosene on the mattress burnt with match-stick, pushed the deceased by highhandedness and sat his daughter on her lap and accused No.1 also sat on the mattress. The deceased Ranjanben stated in dying declaration Exh.57 that accused No.1 was harbouring doubt about her character, although she did not speak of cruelty for non-fulfillment of demand for dowry, in the opinion of this Court, accused No.1 should be given benefit of doubt for the offence under Sections 304(B) and 498A of I.P.C. and under Section 4 of the said Act whereas, concluding his guilt under Section 300 of I.P.C. as it was culpable homicide amounting to murder of his having known fully that puring kerosene on mattress and pushing the deceased and her daughter forcibly would surely lead to the death of both of them.
27. The dying declaration is the last statement made by a person at a stage when one is in serious apprehension of one s death and expects no chances of survival. At such time, it is expected that a person will speak the truth and only truth. As we have found that the statement Exh.57 has been made voluntarily when she was neither in the company of relative of her husband nor in the company of her parents and their family members, it is reliable and there is no attempt by the deceased to cover up the truth or falsely implicate the accused No.1.
28. Now, it is necessary to consider the decisions relied upon by the learned advocate for accused No.1 in support of his submissions recorded hereinabove, although all the decisions rendered in favour of accused persons are based on peculiar facts and circumstances of the case before the Hon ble Apex Court.
28.1. In case of State of A.P. V/s. Shaik Moin reported in (2004)6 SCC 34, the Hon'ble Apex Court, after considering the contradictions in three multiple dying declarations, on facts, did not believe any dying declaration and benefit of doubt extended to the accused therein. As such, no fact situation exists in the case on hand as recorded hereinabove.
28.2.
In case of Balbir Singh and another V/s. State of Punjab reported in (2006)12 SCC 283, there were two dying declarations. The first dying declaration was recorded by the doctor while the second was recorded by the Sub-Inspector after obtaining opinion of the doctor that the deceased was fit to make her statement. In the first dying declaration, appellant No.2 was not named but culpability of appellant No.1 was categorically stated by the deceased in both the dying declarations and, therefore, on facts, the Hon'ble Apex Court upheld the guilt of appellant No.1 and further keeping in view the inconsistencies between two dying declarations, benefit of doubt was given to appellant No.2 therein. As such, on the facts of the present case, after considering all the six dying declarations, we have found dying declaration Exh.57 as reliable, truthful and natural one.
28.3. In case of Amol Singh V/s. State of Madhya Pradesh reported in (2008)5 SCC 468, the Hon'ble Apex Court observed that it is not the plurality of the dying declarations but the reliability thereof that adds weight to the prosecution case. In the case before the Hon'ble Apex Court, the Hon'ble Apex Court on facts, found material variance and several discrepancies regarding the manner in which the deceased was supposed to have been sprinkled with kerosene and thereafter, set on fire. In the case on hand, after examining all the dying declarations and after examining nature of inconsistencies pointed out to us, we have not found any such material variance which creates any doubt as to culpability of accused No.1 - Jagdishgiri in the offence in question.
28.4. In case of State of Gujarat V/s. Mohan Bhai Raghbhai Patel and another reported in AIR 1990 SC 1379, the Hon'ble Apex Court acquitted the accused as there was absence of motive. In the said case, acquittal of the accused was justified as the case was based on circumstantial evidence. In the instant case, the case is not based on circumstantial evidence but it is based on dying declarations and, therefore, the said decision is not helpful to the defence.
28.5. In case of State of Gujarat V/s. Khumansingh Karsan Singh and others reported in AIR 1994 SC 1641, the Hon'ble Apex Court did not find any assurance from any other independent evidence so as to base conviction as the first dying declaration implicated only mother-in-law and subsequent dying declaration after deceased met with father, implicated the husband also. Accordingly, the Hon'ble Apex Court upheld the finding of the High Court acquitting the accused person. In the said case, the Hon'ble Apex Court found that the High Court rightly felt it unsafe to base conviction on the basis of three inconsistent dying declarations. In our case, it is true that there are six dying declarations but while relying upon the dying declaration Exh.57, we have found assurance from independent evidence as recorded hereinabove.
28.6. In case of Vallabhaneni Venkateshwara Rao V/s. State of Andhra Pradesh reported in (2009)6 SCC 484, Hon ble Apex Court did not rely upon the dying declaration as new set of eye-witnesses and new set of accused were involved and after considering the law of dying declaration, the Hon ble Apex Court observed in para 21 that for want of clear and convincing evidence, it was found unsafe to convict the appellant accused therein and accordingly, convictions were set aside.
29. In the present case, we have four oral dying declarations and two written dying declarations made before the Executive Magistrate. Out of them , dying declaration Exh.57 is consistent and it has been given by the deceased Ranjanben in a fitness of mind which is established in the evidence of P.W.Nos.7 and 8. When this dying declaration was recorded, P.W. No.8 Dr.Solanki remained present. In view of this evidence, we come to the conclusion that deceased Ranjanben met with unnatural death though as per medical evidence on record, it was not possible by the doctors to opine whether the death of deceased-Ranjanben was homicidal, suicidal or accidental in nature. So, we are unable to disagree with the findings of conviction recorded by the learned trial Judge for holding accused No.1 guilty of murder of his wife and daughter.
30. Now, so far as the appeal preferred by the State of Gujarat inter alia challenging acquittal of accused No.1 Jagdishgiri for the offence punishable under Sections 304(B), 489(A) and 114 of I.P.C. and Section 4 of the said Act is concerned, learned A.P.P. could not pinpoint the convincing evidence to infer that deceased Ranjanben was subjected to cruelty for non fulfillment of dowry demand. Suffice it to say, settlement/undertaking Exh.70 is absolutely silent in this regard and none of the prosecution witnesses disclosed this fact to any of the police officers at the earliest point of time and on the top of it, dying declaration Exh.57 is absolutely silent in this regard. So in view of the findings recorded hereinabove, the learned trial Judge has rightly acquitted accused No.1 from the said offences and we do not find any reason to interfere with the acquittal order passed in favour of accused No.1-Jagdishgiri for the charge of offence from which, he has been acquitted.
31. The off-shoot of the above discussion is that both the appeals fail and are hereby dismissed.
(M.R.SHAH, J.) (S.H.VORA, J.) Hitesh Page 41 of 41