Gujarat High Court
State Of Gujarat vs Chandubhai Meghjibhai ... on 27 August, 2015
Author: Ks Jhaveri
Bench: Ks Jhaveri, G.B.Shah
R/CR.A/1490/2011 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL APPEAL NO. 1490 of 2011
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE KS JHAVERI
and
HONOURABLE MR.JUSTICE G.B.SHAH
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of
the judgment ?
4 Whether this case involves a substantial question of
law as to the interpretation of the Constitution of
India or any order made thereunder ?
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STATE OF GUJARAT....Appellant(s)
Versus
CHANDUBHAI MEGHJIBHAI KATESIYA....Opponent(s)/Respondent(s)
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Appearance:
MR LR PUJARI, ADDL PUBLIC PROSECUTOR for the Appellant(s) No. 1
MR GAJENDRA P BAGHEL, ADVOCATE for the Opponent(s)/Respondent(s)
No. 1
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CORAM: HONOURABLE MR.JUSTICE KS JHAVERI
and
HONOURABLE MR.JUSTICE G.B.SHAH
Date : 27/08/2015
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ORAL JUDGMENT
(PER : HONOURABLE MR.JUSTICE KS JHAVERI)
1. The accused has been found guilty of commission of offence under Section 304 (Part II) of Indian Penal Code and has been awarded rigorous imprisonment for five years & fine of Rs. 5000/-, in default, simple imprisonment for five months by learned Principal Sessions Judge, Rajkot vide judgement and order dated 30.07.2011 passed in Sessions Case No. 70 of 2008. The accused was however acquitted under sections 498(A) and 302 of Indian Penal Code.
2. The gist of the prosecution story is mentioned hereinbelow:-
2.1 On 10.04.2008 at around 10.00 pm, the accused demanded dinner and asked the deceased to arrange the same in the verandah. The deceased denied to give him food in the verandah and at that time, the accused picked up a quarrel with her and in a fit of rage poured kerosene over her and set her on fire. Due to the hue and cry raised by the deceased, the neighbours gathered for help and took her to hospital. The victim died on 18.04.2008 during the course of her treatment.
2.2 The appellant was apprehended and after investigation charge sheet was submitted. The case was committed to the Court of Sessions at Rajkot. The trial was initiated against the accused and during the course of trial the prosecution examined the following witnesses whose evidences were Page 2 of 11 HC-NIC Page 2 of 11 Created On Mon Sep 07 02:05:23 IST 2015 R/CR.A/1490/2011 JUDGMENT read before us by learned advocates for both the sides:
(i) P.W. 1 - Rameshbhai Thhumar Ex. 27
(ii)P.W. 2 - Dr. Ruchiben Sureshbhai Ex. 30
(iii)P.W. 3 - Dr. Tusharbhai Shah Ex. 36
(iv)P.W. 4 - Dr. Rajendrasinh Chauhan Ex. 38
(v)P.W. 5 - Dhansukhbhai Ashra Ex. 43
(vi)P.W. 6 - Dahyalal Ghodasara Ex. 46
(vii)P.W. 7 - Kailashbhai Korat Ex. 49
(viii)P.W. 8 - Mansukhbhai Vekariya Ex. 54
(ix)P.W. 9 - Sureshbhai Sankaliya Ex. 57
(x)P.W. 10 - Rajubhai Jerambhai Ex. 60
(xi)P.W. 11 - Hasmukhbhai Gondaliya Ex. 61
(xii)P.W. 12 - PSI Ganpatprasad Kanyakunj Ex. 66
(xiii)P.W. 13 - Bhimabhai Keshvala Ex. 69
(xiv)P.W. 14 - Mulubhai Fogabhai Der Ex. 74
(xv)P.W. 15 - PSO Govindbhai Vithalbhai Ex. 93
(xvi)P.W. 16 - PSO Nirubha Sajubha Ex. 96
2.3 The prosecution also exhibited the following documents as evidences which have been perused by us:
(i) Inquest Panchnama Ex. 28
(ii)MLC Certificate of the accused Ex. 31
(iii)Permission letter for treatment Ex. 32
(iv)Permission letter for treatment Ex. 33
(v)Permission letter for treatment Ex. 34
(vi)Sketch of treatment given to victim Ex. 35
(vii)Yadi Ex. 37
(viii)Yadi for P.M Ex. 39
(ix)P.M note Ex. 40
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(x)Cause of death certificate Ex. 41
(xi)Yadi for visit of place of offence Ex. 44
(xii)Report of Scientific Officer Ex. 45
(xiii)Yadi to Executive Magistrate Ex. 46
(xiv)Dying Declaration Ex. 48
(xv)Panchnama of scene of offence Ex. 50
(xvi)Slips of panchas Exs. 51-53
(xvii)Yadi for drawing map Ex. 62
(xviii)Map of scene of offence Ex. 63
(xix)File of MLC Case papers Ex. 65
(xx)Station diary entry Ex. 67
(xxi)Death form Ex. 68
(xxii)Depute order Ex. 70
(xxiii)Complaint Ex. 71
(xxiv)Forwarding letter Ex. 72
(xxv)Special report Ex. 75
(xxvi)Arrest Panchnama Ex. 76
(xxvii)Report to JMFC for adding section Ex. 77
(xxviii)Report to JMFC for adding section Ex. 78
(xxix)Muddamal despatch note and
forwarding letter Ex. 80
(xxx)Receipt Ex. 81
(xxxi)Yadi Ex. 82
(xxxii)FSL report Ex. 83
(xxxiii)FIR Ex. 91
(xxxiv)Extract of station diary Ex. 94
(xxxv)Extract of station diary Ex. 95
(xxxvi)Extract of station diary Ex. 97
2.4 At the end of the trial and after recording the statement of the accused under section 313 of Cr.P.C., and hearing Page 4 of 11 HC-NIC Page 4 of 11 Created On Mon Sep 07 02:05:23 IST 2015 R/CR.A/1490/2011 JUDGMENT arguments on behalf of prosecution and the defence, the learned Additional Sessions Judge convicted the appellant as mentioned aforesaid. Being aggrieved by and dissatisfied with the aforesaid judgement and order passed by the Sessions Court the appellant has preferred the present appeal.
3. Mr. Pujari, learned advocate appearing for the appellant
- State submitted that looking to the evidence on record, this is a case where the trial court has not given any special reasons for imposing lesser sentence upon the accused. He submitted that the prosecution has successfully proved the case against the accused and yet the Sessions Court has passed the sentence which does not commensurate the gravity of the offence. Mr. Pujari has submitted that therefore the Sessions Court has manifestly erred in awarding grossly disproportionate sentence looking to the nature of the offences in which the accused person is involved.
4. It has neither been disputed before this Court or before the trial court that deceased had met with her death on account of septicemia following 70% burn injuries sustained at the house of appellant. This even otherwise stands proved from her post-mortem report Ex. 40 which mentions the cause of death to be due to septicemia due to burns.
4.1 Now the question that arises for consideration is whether the present appellant-husband of the deceased was the perpetrator of the crime or it was an accidental or suicidal death. In the present case there are dying declarations in the form of dying declaration recorded by the Executive Page 5 of 11 HC-NIC Page 5 of 11 Created On Mon Sep 07 02:05:23 IST 2015 R/CR.A/1490/2011 JUDGMENT Magistrate and the history before the doctor. As far as the dying declaration Ex. 47 is concerned, the same was recorded by P.W. 6, Dahyalal Ghodasara after due endorsement regarding fitness of the deceased by doctor.
4.2 The evidence of P.W. 6 is on record. P.W. 6, Shri Dahyalal Ghodasara is the Executive Magistrate who had recorded the dying declaration of the victim on 12.04.2008.
He has deposed that pursuant to the yadi received by him from police station he went to Neelkanth General Hospital to record the statement of the victim. He has deposed that after verifying the mental and physical fitness of the victim from the doctor, he started recording the dying declaration. He has stated that she had mentioned that the appellant poured kerosene over her and set her on fire. He has stated that she mentioned in the dying declaration that she ran out of the house and at that time her relatives tried to save her.
4.3 Now we shall take up the second dying declaration of the deceased which was recorded in the form of history before the doctor. The history of the patient was recorded by P.W. 2 - Dr. Ruchiben Sureshbhai when she was brought to Neelkanth Hospital for treatment. P.W. 2 - Dr. Ruchiben Sureshbhai vide her deposition at Ex. 30 has stated that on 10.04.2008 the deceased was brought to the hospital for treatment pursuant to burn injuries sustained by her. This witness has stated that when she asked about the history of the burns, the deceased had informed her that the deceased had stated that her husband had picked up a quarrel and thereafter poured kerosene over her and set her on fire.
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5. In the case of Gopal vs. State of Madhya Pradesh reported in (2009) 12 SCC 600, the Apex Court in para 13 has observed as under:
"13. Law relating to appreciation of evidence in the form of more than one dying declaration is well settled. Accordingly, it is not the plurality of the dying declarations but the reliability thereof that adds weight to the prosecution case. If a dying declaration is found to be voluntary, reliable and made in fit mental condition, it can be relied upon without any corroboration. The statement should be consistent throughout. If the deceased had several opportunities of making such dying declarations, that is to say, if there is more than one dying declaration they should be consistent. However, if some inconsistencies are noticed between one dying declaration and the other, the court has to examine the nature of the inconsistencies, namely, whether they are material or not. While scrutinising the contents of various dying declarations, in such a situation, the court has to examine the same in the light of the various surrounding facts and circumstances."
5.1 In the case of Shudhakar vs. State of Madhya Pradesh reported in (2012) 7 SCC 569, the Apex Court has held that a "dying declaration" is the last statement made by a person at a stage when he is in serious apprehension of his death and expects no chances of his survival. At such time, it is expected that a person will speak the truth and only the truth and that normally in such situations, courts attach intrinsic value of truthfulness to such statement. It is also held that once such statement has been made voluntarily, it is reliable and is not an attempt by deceased to cover up truth or falsely implicate a person, then courts can safely rely on such dying declaration and it can form the basis of conviction, more so where version given by other prosecution evidence, Page 7 of 11 HC-NIC Page 7 of 11 Created On Mon Sep 07 02:05:23 IST 2015 R/CR.A/1490/2011 JUDGMENT there is no reason for courts to doubt truthfulness of such dying declaration.
6. As far as the veracity of the dying declaration before the Executive Magistrate is concerned, it is required to be noted that the Executive Magistrate in his deposition has clearly mentioned that the deceased was conscious while recording the declaration and the endorsement of the doctor regarding the fitness of the patient was also taken before recording of the statement. He stated that the deceased answered his questions and also appended her signature after the procedure was over at around 03.14 am.
7. It shall not be out of place to mention that the courts have to be on guard to see that the dying declaration is not the result of either tutoring or prompting or a product of imagination and that due care and caution must be exercised in considering weight to be given to the dying declaration. The complaint, the dying declaration recorded by the Executive Magistrate is duly corroborated with the evidence of P.W 2 and the medical reports as well as panchnama and it is clear that the deceased died a homicidal death due to the act of the appellant in pouring kerosene over and setting her ablaze. We do find that the dying declaration is trust worthy.
8. However, we have also not lost sight of the fact that the deceased had died after eight days of treatment. From the medical reports, it is clear that the deceased suffered from Septicemia which happened due to extensive burns. In the case of the B.N. Kavatakar and another vs. State of Karnataka reported in 1994 Supp (1) SCC 304, the Apex Page 8 of 11 HC-NIC Page 8 of 11 Created On Mon Sep 07 02:05:23 IST 2015 R/CR.A/1490/2011 JUDGMENT Court in a similar case of septicemia where the deceased therein had died in the hospital after five days of the occurrence of the incident in question, converted the conviction under section 302 to under section 326 and modified the sentence accordingly.
8.1 Similarly, in the case of Maniben vs. State of Gujarat reported in (2009) 8 SCC 796, the Apex Court has observed as under:
"18. The deceased was admitted in the hospital with about 60% burn injuries and during the course of treatment developed septicemia, which was the main cause of death of the deceased. It is, therefore, established that during the aforesaid period of 8 days the injuries aggravated and worsened to the extent that it led to ripening of the injuries and the deceased died due to poisonous effect of the injuries.
19. It is established from the dying declaration of the deceased that she was living separately from her mother-in-law, the appellant herein, for many years and that on the day in question she had a quarrel with the appellant at her house. It is also clear from the evidence on record that immediately after the quarrel she along with her daughter came to fetch water and when she was returning, the appellant came and threw a burning tonsil on the clothes of the deceased. Since the deceased was wearing a terylene cloth at that relevant point of time, it aggravated the fire which caused the burn injuries.
20. There is also evidence on record to prove and establish that the action of the appellant to throw the burning tonsil was preceded by a quarrel between the deceased and the appellant. From the aforesaid evidence on record it cannot be said that the appellant had the intention that such action on her part would cause the death or such bodily injury to the deceased, which was sufficient in the Page 9 of 11 HC-NIC Page 9 of 11 Created On Mon Sep 07 02:05:23 IST 2015 R/CR.A/1490/2011 JUDGMENT ordinary course of nature to cause the death of the deceased. Therefore, in our considered opinion, the case cannot be said to be covered under clause (4) of Section 300 of IPC. We are, however, of the considered opinion that the case of the appellant is covered under Section 304 Part II of IPC."
9. In the present case, we have come to the irresistible conclusion that the role of the appellant is clear from the dying declaration and other records. However, the point which has also weighed with this court are that the deceased had survived for around 8 days in the hospital and ultimately died of septicemia. In fact she had sustained about 70% burns. In that view of the matter, we are of the opinion that the trial court was justified in convicting the appellant under sections 304 (Part II) and 498(A) of Indian Penal Code and sentencing him to rigorous imprisonment for five years and imposition of fine of Rs. 5000/-, in default, simple imprisonment for five months.
10. In the premises aforesaid, appeal is hereby dismissed. The judgement and order dated 30.07.2011 passed by the Principal Sessions Judge, Rajkot in Sessions Case No. 70 of 2008 does not call for any enhancement in the sentence imposed upon the respondent. R & P to be sent back to the trial Court forthwith.
(K.S.JHAVERI, J.)
(G.B.SHAH, J.)
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divya
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