Mohmmad Yunis Gulam Hyder Shaikh vs State Of on 11 March, 2013

[Cites 11, Cited by 0]

Gujarat High Court

Mohmmad Yunis Gulam Hyder Shaikh vs State Of on 11 March, 2013

Bench: M.R. Shah

  
	 
	 MOHMMAD YUNIS GULAM HYDER SHAIKH....Appellant(s)V/SSTATE OF GUJARAT....Opponent(s)/Respondent(s)
	 
	 
	 
	 
	 
	 
	 
	 
	

 
 


	 


	R/CR.A/2233/2004
	                                                                    
	                           CAV JUDGEMNT

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL NO.

2233 of 2004 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 ?

To be referred to the Reporter or not ?

Whether their Lordships wish to see the fair copy of the judgment ?

Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ?

Whether it is to be circulated to the civil judge ?

================================================================ MOHMMAD YUNIS GULAM HYDER SHAIKH....Appellant(s) Versus STATE OF GUJARAT....Opponent(s)/Respondent(s) ================================================================ Appearance:

MS SADHANA SAGAR, ADVOCATE for the Appellant(s) No. 1 MS CM SHAH APP for the Opponent(s)/Respondent(s) No. 1 ================================================================ CORAM:

HONOURABLE MR.JUSTICE M.R. SHAH and HONOURABLE MR.JUSTICE S.H.VORA Date : 11/03/2013 CAV JUDGEMNT (PER : HONOURABLE MR.JUSTICE S.H.VORA)

1. Challenge in this appeal preferred under Section 374 of the Code of Criminal Procedure, 1973 (for short, the 'Code') by Mohammad Yunis Gulam Hyder Shaikh is the judgment dated 30.06.2004 passed by the learned Additional Sessions Judge, Court No.8, City Civil and Sessions, Court, Ahmedabad in Sessions Case No.239 of 2003. Vide the impugned judgment, the appellant found guilty of offence under Section 300 of the Indian Penal Code (for short, 'I.P.C.') and sentenced under Section 302 of I.P.C. to undergo life imprisonment and to pay fine of Rs.5000/-, in default, to undergo further simple imprisonment for one year.

2. The prosecution case as unfolded before the trial Court can be stated thus. The complainant's daughter namely, Shamimbanu aged 18 years was married to the present appellant four months prior to the incident dated 30.06.2002 as per Muslim customs. After marriage, the complainant's daughter started living with her mother-in-law and with the present appellant at Jamalpur, Ahmedabad. On 30.06.2002, the present appellant and complainant's daughter went to Himmatnagar to attend one marriage ceremony and both of them were returned back at 21.30. At about 23:00 hrs., the appellant in a drunken condition, sprinkled kerosene on the complainant's daughter from the plastic container and set her ablaze.

When the complainant's daughter raised hue and cry, the appellant ran away from the house and people in the neighbourhood came to rescue of complainant's daughter and shifted her to V.S. Hospital for treatment. So the complaint came to be lodged by the complainant at V.S. Hospital itself on 01.07.2002 at 21:00 hrs. which came to be registered as I-C.R.No.93/02 for the offence punishable under Sections 307 and 498A of I.P.C. and subsequently, on demise of the complainant's daughter, offence under Section 300 of I.P.C. was added. Since marriage span was less than four months, the Commissioner of Police prepared a report addressing to the police station officer and further investigation was carried out by the police inspector - Mr.Dodia, who after conducting investigation, filed chargesheet against the appellant having found sufficient evidence against him.

3. Since the Court of learned Metropolitan Magistrate lacked jurisdiction to try the offence in question, it committed the case as provided under Section 209 of the Code to the Sessions Court.

4. The Sessions Court framed charge against the appellant for the offence punishable under Sections 498A and 302 of I.P.C. on 23.01.2004 vide Exh.2. The appellant pleaded not guilty and claimed to be tried and, therefore, the prosecution led following oral and documentary evidence before the trial Court to substantiate the charges.

Oral Evidence:-

P.W. No. Exh.

Nos.

Particulars 1 5 Gulam Rasul Abdul Rahim Shaikh, complainant and father of deceased Shamimbanu 2 6 Dr.Saumil Premchand Merchant, who performed postmortem on the dead body of deceased Shamimbanu 3 8 Pappubhai Ishwarbhai One of the panchas of the seizure panchnama of incriminating materials collected by the Officer of F.S.L. 4 10 Mr.Suresh Kantilal Dave ACP, who recorded dying declaration Exhs.31 and 32 5 16 Dhirendrasinh Lakhabhai Dodia, Investigating Officer and also recorded dying declaration of the deceased Exh.33.

The Court witness Mohammad Yunus Abbasbhai Mansuri, Executive Magistrate, who recorded dying declaration Exh.27.

Documentary Evidence:-

Exh.

No. Particulars 11 Original complaint of complainant Gulam Rasul Abdul Rahim Shaikh dated 01.07.2002 12 Report of registration of crime dated 01.07.2002.

Panchnama of the scene of offence drawn on 02.07.2002.

Panchnama of seizure of cloths of accused worn by him at the time of incident drawn on 02.07.2002.

Inquest Panchnama drawn on 02.07.2002.

P.M. Note of the dead body of deceased prepared on 07.07.2002.

Copy of the forwarding letter dated 16.07.2002.

Muddamal receipt dated 17.07.2002.

Muddamal receipt dated 18.07.2002 20A F.S.L. report dated 19.08.2002.

Vardhi sent by one A.S.I. - Bhikhaji from V.S. Hospital dated 01.07.2002.

Vardhi sent by one Ashibhai and addressed to Gayakwad Haveli police station dated 07.07.2002.

Letter addressed to P.S.O. by I.O., vide Janva Jog Entry No.66/02 dated 01.07.2002.

Dying declaration recorded by P.W. No.4 on 01.07.2002. (at about 9:00 am. to 10:00 am.) 32 Second dying declaration on the same day recorded by P.W. No.4 on 01.07.2002. (at 6:00 pm.) 27 Dying declaration recorded by the Executive Magistrate who was examined as the Court witness at Exh.25.

Dying declaration recorded by P.W. No.5 on 02.07.2002. (from 2:50 am. to 3:00 am.) 26 Yadi to the Executive Magistrate written by the Investigating Officer.

5. The gist of the prosecution case as brought out through the oral testimony of the prosecution witnesses can be summarized as under.

5.1.

P.W. No.- 1 Gulam Rasul Abdul Rahim Shaikh, examined at Exh.5, is the father of the deceased and deposed before the trial Court that his daughter namely Shamimbanu married to the appellant four months prior to the incident dated 30.06.2002. He was earning his livelihood by driving auto-rickshaw. He came to know about the incident through neighbours on 01.07.2002 at 2:00 pm when he came for lunch and he further came to know that his wife and son gone to V.S. Hospital as his daughter was admitted there because of the burn injuries. On reaching at V.S. Hospital, he found his daughter wrapped in the bandages.

His daughter-Shamimbanu confided him that on the previous night, she was beaten by the appellant in a drunken state and thereafter, the appellant poured kerosene oil on her and set her ablaze. At that time, she was in complete consciousness and the complainant went to the police station and gave the complaint which read out to him before the Court and he admitted the contents of the same being true.

More or less, the complainant reiterated the facts which have been narrated by him in his complaint before the trial Court. He has deposed that at the time of incident, only the appellant and his daughter were in the house and when she made hue and cry on having been burnt, the people in the neighbourhood rushed and removed her to the V.S. Hospital. As per his say, the complainant made an attempt to find out the appellant who had not visited the hospital but he could not trace the appellant as he has run away somewhere. On his inquiring from his wife, she disclosed that deceased Shamimbanu was beaten by the appellant but as the marriage had taken place some time ago, the complainant's wife did not inform these things to him. This witness cross-examined at great length. He admitted that both the appellant and his family belong to the same community and marriage took place with the consent of both the sides through one mediator old lady, who was running marriage bureau. According to him, there was no dispute between the two families at any point of time but he was specific that he was ignorant about any happening to his daughter-Shamimbanu at her in-laws. An attempt was made to elicit the fact that on hearing the news of daughter, he lost balance and straightway went to lodge the complaint but it is stated by him that he was in complete command of himself and he firstly went to the hospital. While denying suggestion as to not approaching the appellant's home after receiving the news of the incident in question, the complainant disclosed that his wife had firstly gone to the home of the appellant and from there, she went to the hospital as she came to know that her daughter was removed to the hospital. He admitted that when he reached at hospital, he came to know that his daughter burnt on account of bursting of stove. But while replying, this witness deposed that his daughter had said that it was at the instance of the relatives, she had so said but, later, she gave a true version and he came to know that this story is written at the instance of the relatives of the appellant. This witness specifically denied the suggestion of the defence that the appellant had gone to cook on 30.06.2002 at night.

5.2. P.W. No.2 Dr. Saumil Premchandbhai Merchant, examined at Exh.6, who was then serving as Assistant Professor in Forensic Department at V.S. Hospital. According to him, when he was on duty on 07.07.2002, he received one dead body with Yadi of Gayadwad Haveli police station to perform postmortem and opine the cause of death. Accordingly, in the company of Dr.T.J. Mehta, they conducted postmortem on dead body of deceased Shamimbanu at 9:00 am. and concluded at 10:45 am. It is noticed by him that the dead body was wrapped with bandages except on face, stomach, abdomen and external genital sole.

Importantly, he noticed ink marks on the right great toe. He noticed burn injuries on the body up to 60% and recorded the same in column No.7 of the postmortem report Exh.7 and further, he found all such injuries being ante mortem in nature. Based on his examination, he opined as to the cause of death on account of shock as a result of burn injuries and its complications. In view of the nature of injuries, he specifically opined that the nature of injuries might be non-accidental. In cross-examination, this witness admitted that looking to the nature of injuries, it could be said that at the relevant time, the person would be able to speak. He denied the suggestion that in view of the injuries, it could not be opined that the injured would not be able to give long replies. Except this, nothing substantial has been elicited from this witness.

5.3. P.W. No.3 Mr.Pappu Ishwarbhai, who is one of the panchas of the seizure panchnama, turned hostile. During his cross-examination, learned A.P.P. could not elicit any substantial evidence which supports the prosecution case.

5.4. P.W. No.4-Mr.Suresh Kantilal Dave, examined at Exh.10, was then working as A.C.P., 'E' Division in the city of Ahmedabad having Khadiya and Gayakwad Haveli police station under his jurisdiction. He received intimation on 01.07.2002 on telephone by the P.S.O. that one Janva Jog entry No.66/02 of Gayakwad Haveli police station had been entered at 6:30 am. The said Vardhi was sent from V.S. Hospital intimating that one Shamimbanu, wife of the appellant aged 18 years, received burn injuries on account of her catching the flames while preparing tea and removed to V.S. Hospital for treatment. So he chosen to investigate and recorded statement of Shamimbanu on 01.07.2002 in the V.S. Hospital in the burns ward but he did not remember the exact time, when the said statement came to be recorded but according to him, it would be 9:00 to 10:00 am. According to this witness, prior to that, dying declaration was recorded by the Executive Magistrate on 01.07.2002 during the time from 2:50 am. to 3:05 am. Yet, this witness recorded another statement of deceased Shamimbanu on 01.07.2002 in the evening at 6:00 pm. as he was informed that deceased Shamimbanu wanted to say something about the incident. During the course of deposition, he deposed that in both the statements, deceased put her thumb impression in presence of the complainant. This witness sent Vardhi to the F.S.L. experts to visit the place of offence as well as to carry out panchnama and also recorded the complaint of the father of deceased Shamimbanu at V.S. Hospital at 21:00 hrs. This witness stated that in the complaint, the complainant stated about cruelty perpetrated by the appellant and further the kerosene was poured on the complainant's daughter by the appellant and he made an attempt to set her ablaze and thus, offence under Section 498A and 307 was registered vide I-C.R.No.93/02 and the investigation was handed over to P.I. Mr.P.L. Dodiya, who prepared the report under Section 157 of the Code vide Exh.12. In the cross-examination by the defence, this witness stated that when he reached at V.S. Hospital on 01.07.2002 at 9:00 am., he stayed there for about 20 minutes but he did not meet the doctor under whose treatment the deceased was. This witness agreed with the suggestion that the mental and physical condition of the patient in the serious offences need to be properly scrutinized. He further agreed with the suggestion that the medical opinion as regards mental and physical condition of the patient in a sessions case is necessary. However, this witness replied that as an Investigating Officer, he can always check and verify the physical and mental condition of a person. He agreed to the suggestion that time is a vital factor as regards recordance of a statement of the injured. He admitted that he has not recorded at what time, he recorded the statement of the patient but in his opinion, this witness do not mention time in such type of statements. It is admitted by him that in both the statements, there are no timings mentioned and further, deceased had about 70% of burn injuries. He has also admitted that he had not seen the medical papers of deceased Shamimbanu and, therefore, he was unaware as to whether she was being given any sedatives.

According to him, somebody was deputed to preserve the place of offence. He is unable to say as to who he was? Though he visited the hospital twice, he did not meet the doctor as he did not feel it necessary. He has admitted that he has not made a note in both the statements as to whether Shamimbanu was able to speak and understand clearly. According to him, when he visited second time and recorded the statement of Shamimbanu, her father alone was present. He has deposed that the instructions as regards to preserve the scene of offence were issued on telephone. However, there is nothing on record to show issuance of such instructions. According to this witness, before recordance of second statement by him during his second visit to the hospital, he had not gone to the place of offence as the F.S.L. officer did not come. According to this witness, he has not inquired as to why F.S.L. expert did not visit the place of offence on 01.07.2002. But he loosely stated that F.S.L. officer would be busy somewhere and, therefore, they did not visit the place of offence. He admitted that he was monitoring the investigation on 01.07.2002 and 02.07.2002. He admitted that he has not played any role while monitoring the case on 02.07.2002. He further admitted that he has not collected any evidence on 01.07.2002 from the scene of offence. He denied the suggestion that the appellant was arrested on 02.07.2002 at the instance of the message sent from the V.S. Hospital.

5.5. P.W. No.5 Dhirendrasinh Lakhaji Dodia, examined at Exh.16, who had carried out investigation, deposed that the appellant came to be arrested on 02.07.2002 at 14:00 hrs. on the basis of secret information. In his presence, the F.S.L. expert drawn panchnama of the place of offence and seized dupatta, payjama with kerosene smell, the burnt match-sticks box and broken pieces of bangles. At the scene of offence, a shirt from the loft wrapped in a mattress which smelt of kerosene was recovered at the instance of the appellant. This witness had also inquired with the deceased at V.S. Hospital and he recorded her statement Exh.33. According to this witness, Shamimbanu expired on 07.07.2002 and her postmortem report obtained on 02.08.2002. The seized incriminating articles were sent to F.S.L. on 18.07.2002. He prepared panchnama Exhs.17,21 and 22 and received the F.S.L. report and at the end, he filed chargesheet against the appellant. In the cross-examination by the defence, he admitted that during the period from 02.07.2002 to 16.07.2002, he visited twice or thrice the hospital where, deceased was under

treatment. He admitted that he has neither recorded the statement of any doctor or employee of the hospital nor any relatives. It is admitted by him that it is only the appellant and his wife had stayed at the place and the accused was doing business of ironing cloths for his livelihood. However, he expressed ignorance as to whether the appellant was working as a cook and further denied that when the incident occurred, the appellant has gone for cooking. In para 5, he has admitted that at the initial stage of investigation, the fact as to deceased sustained injury while preparing tea was surfaced. Except this, nothing substantial has been elicited from this witness.

5.6. Lastly, one Mr.Mohammad Yunus Abbasbhai Mansuri was examined at Exh.25 as Court witness at the request of the defence. According to this witness, he was then serving as an Executive magistrate, Metropolitan area, Ahmedabad. At about 2:25 am on 01.07.2002, he received one Yadi Exh.26 from police constable Pravinbhai Harkhabhai. Accordingly, he went to V.S. Hospital along with police in Government vehicle and reached at burns ward. He, after making inquiry as to the name of patient in room No.6 and after further verifying as to patient being conscious, recorded dying declaration in question answer form. He commenced dying declaration at 2:50 am. and concluded at 3:05 am. After reading over the dying declaration to the patient, he obtained right thumb impression on it. This witness further deposed that at the time of recording dying declaration, he ensured that neither of the relatives of the patient nor police persons were present. Through this witness, dying declaration Exh.27 was admitted into evidence. As the evidence of this witness was helpful to the defence side, the defence side further made an attempt to elicit from this witness that mental and physical condition was found good on the basis of some formal questions. It was further admitted by this witness that the patient was giving reply slowly after understanding the question. According to the suggestion of defence, as this witness was satisfied about the condition of patient, it was put to him as to why he did not think it fit to meet doctor, in reply to it, this witness said that as it was night time, the doctor was not present.

6. On conclusion of evidence on the part of the prosecution, the learned Trial Judge recorded further statement of the appellant accused as provided under Section 313 of the Code so as to obtain explanation/answer to the incriminating circumstances appeared in the evidence led by the prosecution.

7. On perusal of the further statement, the appellant pleaded ignorance as to how his wife got burnt and according to him, the incident took place when he was sleeping. The appellant made an attempt to save her. According to him, when he went to see her at hospital, he was arrested. He made an attempt to pouring water on her with an earth pot to save her and he further admitted that when he went to see her at the hospital, she was able to speak. Importantly, he admitted in his further statement that his wife did not have habit of taking tea at night and it was the appellant, who had asked her to prepare tea for him and thereafter, the appellant gone to sleep. The appellant admitted that both of them had gone to attend marriage on the fateful night and he further admitted that his wife was removed to the hospital within 1 ¿ to 2 hours after the incident.

8. After examining the evidence adduced before the trial Court and after hearing both the sides at length and after examining various principles cited at bar, the learned trial Judge found the appellant guilty of the offence as charged and sentenced as aforesaid except for offence under Section 498A of I.P.C.

9. Being aggrieved and dissatisfied with the impugned judgment, inter alia, holding the appellant guilty for the offence punishable under Section 302 of I.P.C., the appellant preferred present appeal on the various grounds as stated in the memo of appeal and also on the grounds urged at the time of hearing.

10. It is vehemently argued by learned advocate Ms.Sadhna Sagar appearing for the appellant that the deceased had made four dying declarations.

The first dying declaration Exh.27 recorded by defence witness, who was examined at Exh.25 and second dying declaration recorded by P.W. No.4 - A.C.P. Mr.Dave Exh.31 completely absolved the appellant. Therefore, recording of subsequent dying declaration Exh.32 by P.W. No.4 A.C.P. Mr.Dave and dying declaration Exh.33 recorded by P.W. No.5 Mr.Dodia should not be made the basis of conviction keeping in view the facts and circumstances of the present case. According to her, the first dying declaration should be preferred as it is the most genuine statement made by the deceased coupled with the fact that Vardhi Exhs.14 and 15 sent by Gayakwad Haveli police station on 01.07.2002 and 07.07.2002 respectively speaks of suicidal burn injuries. Likewise, Yadi Exh.26 sent to the Executive Magistrate (defence witness) also reflects burn injuries due to suicide on 01.07.2002. If this evidence has been properly appreciated by the learned trial Judge then the appellant would have become entitled for an order of acquittal.

11. Per contra, learned A.P.P. Ms.C.M. Shah made arguments on behalf of the State that dying declaration Exhs.27 and 31 are based on falsehood and made under the influence of the family members of the accused. Whereas, dying declaration Exhs.32 and 33 recorded by P.W. Nos.4 and 5 respectively are truthful and reliable. In these two dying declarations, the deceased has provided the reason why she made dying declaration Exh.27 and 31 which were factually incorrect. According to the learned A.P.P., after the incident, the appellant was not traceable for a long time and he could only be arrested on 02.07.2002 at 2:00 pm. at V.S. Hospital at the instance of the complainant. So considering the conduct of the appellant and other evidence gathered from the scene of offence and after appreciating the overall evidence placed before the trial Court, the learned trial Judge has rightly convicted the appellant for the offence punishable under Section 302 of I.P.C. and hence, the present appeal deserves to be dismissed. In support of her submissions, learned A.P.P. 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.

12. To begin with, there is no dispute that the deceased Shamimbanu died due to burn injuries when she was at her home on 30.06.2002 at about 23:00 hrs. but it is required to be probed whether burn injuries sustained by her were accidental, homicidal or suicidal in view of evidence adduced by the prosecution. It is settled principle of law that the prosecution has to prove its case beyond any reasonable doubt while the defence has to prove its case on touchstone of preponderance and probabilities. In the case on hand, we have four written dying declarations of the deceased and before placing reliance on any of the dying declaration, it is required to refer to the law reiterated by the Hon ble Apex Court in the 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.

13. Based on evidence, it is evident that the complainant was not present at the time of incident which happened at the place of in-laws of his daughter and the complainant came to know about the same next date. The prosecution has not examined any neighbour from the neighbourhood of the appellant and as regards the allegations of cruelty, the complainant specifically stated that he came to know about the same through the mother of deceased -Shamimbanu after the incident. But wife of the complainant and mother of deceased has not been examined. So essentially, the case rests on the dying declarations of the deceased Shamimbanu and the deposition of the complainant and other evidence collected during the investigation. It needs to be noted that the deceased admitted to the V.S. Hospital on 30.06.2002 and she survived for 7 days and succumbed to the injuries on 07.07.2002. It has also come on record that though the family members were residing at the distance of one and half kilometers, they were not informed about the incident for about 10 hours. It is evident in the evidence that deceased Shamimbanu was in a position to speak during the time she lived for 7 days and such was the opinion by the medical expert. It is more relevant and important to keep in mind that when P.W. No.5 Mr.Dodia took the statement of deceased on 02.07.2002, there is no challenge on the part of the defence either about inability or disability on the part of the deceased to speak or there is any challenge as to her mental and physical condition to give statement. In cross-examination of P.W. No.5, there is no allegation as to any previous enmity between the appellant accused and P.W. No.5 or there is any such evidence so as to infer any reason on the part of P.W. No.5 to involve the appellant accused in this case on his own or at the instance of anybody. Of course, initially, the deceased talked of the incidental burn injuries but on the next day i.e. 02.07.2002, she gave details as to how and in what manner she was killed by the appellant by setting her ablaze by pouring kerosene.

14. For better re-appreciation and reassessment of the evidence on record, more particularly, with regard to the surrounding circumstances under which, various dying declarations are recorded by the different authorities, it will be fruitful and useful to refer to relevant portion of the statements made by deceased Shamimbanu in dying declaration Exhs.27,31,32 and 33.

14.1. The first dying declaration Exh.27 was recorded by defence witness Executive Magistrate Mr.Mohammad Yunus Abbasbhai Mansuri. The said dying declaration was recorded in the wee hours on 01.07.2002 during the time between 2:50 to 3:05 am. In answer to the question where the other persons of the family at the time of incident were, deceased replied that her mother-in-law, brother-in-law and niece were sleeping outside of the house and her husband had gone out to do work of cooking. Similarly, in reply to the question as to short details of the incident, the deceased stated as under:-

I was making tea on brass primus and as I tried to pump air in the primus and as excess kerosene came out from the primus, there was sudden blast of flames. As the flame of fire touched my face, I stood up and as I tried to extinguish the primus by blowing, my clothes caught the fire of primus and my body got burnt. As I felt giddy, I fell on the primus and I have got burnt. I do not know what happened after that. My brother-in-law and daughter of my maternal uncle have brought me to the hospital.

So, the first dying declaration exonerated the appellant accused.

14.2. Similarly, the second dying declaration Exh.31 made before P.W.4 A.C.P. Mr.Dave on 01.07.2002 at 9:00 am. to 10:00 am. also exonerated the appellant accused. Although, dying declaration Exh.31 does not contain certificate of the doctor that the deceased was in a fit state of mind to give dying declaration. The third dying declaration Exh.32 came to be recorded by the very P.W. No.4 A.C.P. -

Mr.Dave. As this witness was to be informed something about the incident, he recorded this dying declaration at 6:00 pm. on 01.07.2002. The third dying declaration implicated the appellant accused.

14.3. Lastly, P.W. No.5 Investigating Officer Mr.Dodia recorded the statement of deceased Shamimbanu on 02.07.2002 which is placed on record at Exh.33. The said dying declaration does not bear thumb impression and signature of the declarant. According to the statement of the deceased made before P.W. No.5, the appellant and the deceased returned at home after attending marriage at about 21:30 hrs. on 30.06.2002 and as she told her husband to visit her father s house as she has not gone there for a long time, the appellant denied her and quarreled with her and gave her two slaps. According to her, thereafter, the appellant went out and came back home at about 23:00 hrs. A smell of liquor was coming out from the appellant s mouth. The deceased reprimanded the appellant so he got instigated and started beating her and thereafter, poured kerosene on her from the cane which was in the cupboard and lighted match-stick and threw it on the deceased. According to her, as the clothes which were worn by her started to burn and she started shouting, at that time, her Jeth (brother-in-law) and other persons residing in the neighbourhood gathered and the appellant ran away from the house. As per her further statement, the other persons poured water on her and extinguished the fire and she was brought to the hospital for treatment. In this dying declaration, she specifically stated that the appellant told her that if she dictate against the appellant, the appellant would give her divorce and, therefore, she dictated at first before the police that she caught fire as there was blast of flames in the stove. In nutshell, it was her statement before P.W. No.5 that as the appellant had pressurized her to give her divorce, she gave false fact at the first time. She further stated to P.W. No.5 that she was conscious.

15. Examining the evidence, more particularly, the evidence of witnesses, who recorded four dying declarations and also contents of the dying declarations in light of the above stated principles, we have no hesitation in coming to the conclusion that 4th dying declaration Exh.33 is reliable, truthful and natural one. Whereas, dying declaration Exhs.27, 31 and 32 are not voluntary and not made by free will of deceased Shamimbanu. As such, the learned trial Judge has relied upon dying declaration Exh.32 recorded by P.W. No.4 A.C.P. - Mr.Dave but when we examine his evidence, we do not rely upon the evidence of this witness so as to term dying declaration Exh.32 as reliable and truthful. In order to come to this conclusion, we give our following reasons:-

15.1. To begin with, all the three dying declaration Exhs.27,31 and 32 bear right thumb impression of deceased Shamimbanu. Whereas, dying declaration Exh.33 does not bear any thumb impression of the deceased. On our analysis of evidence, we have noticed that there was surgical dressing all over the body of the deceased except face, stomach, external genital sole and abdomen. This fact reflects in the Column No.7 of the postmortem report Exh.7 prepared by P.W. No.2 Dr. S.P. Merchant. On our surprise, we have noticed that P.W. No.2 Dr.Merchant recorded ink mark present on the right great toe when he examined special marks on the dead body of the deceased. This ink mark is recorded by him in column No.9 of the postmortem report Exh.7. In this connection, statement of the complainant in the complaint Exh.11 is relevant. As per his complaint Exh.11, when he reached at V.S. Hospital and in the burns ward, he found burn injuries on deceased Shamimbanu on face, hands and legs and she was wrapped with bandages. Similarly, in the inquest panchnama Exh.17 (admitted by the defence), the panchas have found that both the hands were fully wrapped with bandages. So, the natural question which would come in the mind of any prudent person as to how the deceased would be able to put her right thumb impression when her both hands are wrapped with the bandages. We have no doubt in our mind to come to the conclusion that both the concerned officers/witnesses without any hesitation and in utter disregard for truth, obtained impression of right great toe of the deceased on the dying declaration Exhs.27,31 and 32. Else, there is no reason to have presence of ink mark on the right great toe of the deceased. On this sole count, any right thinking person would come to the conclusion that dying declarations Exhs.27.31 and 32 are unreliable and untrustworthy and no reliance can be placed upon such dying declarations either to record finding of guilt or acquittal. Whereas, the statement recorded by P.W. No. 5 Mr.Dodia does not bear any thumb impression of the deceased and, therefore, we can infer that he recorded the statement in a very natural course of events and, therefore, it is reliable.

15.2. The defence has not challenged anything in any manner so as to disbelieve the contents of dying declaration Exh.33 wherein, the deceased gave minute details as to how she was killed by her husband.

15.3. According to the F.S.L. report Exh.20A, the broken bangles, which were seized from the scene of offence, were analyzed by the expert of F.S.L. and according to the report, bangles were broken not because of heat but by force.

This indicates that the deceased would have made some struggle to save herself when the appellant was pouring kerosene on her. This is one of the remote reasons to infer that the appellant is involved in the crime.

15.4. One more reason to disbelieve dying declarations Exhs.27 and 31 is such that at all the relevant point of time, the deceased was in company of relatives of the accused person. So it can be inferred that the deceased was under influence of her in-laws.

15.5. Deceased Shamimbanu in her dying declaration Exh.33, specifically stated that after the incident, the neighbours and other members of in-laws made an attempt to save her. The complaint given by the father of the deceased on 01.07.2002 whose deposition recorded below Exh.5 and the statement Exh.33 consistently carry the story that the appellant and the deceased had dispute when the appellant returned at 11:00 o clock after consuming liquor and when the appellant was scolded by wife for his habit where he got enraged and took out the container of kerosene and poured on her and set her ablaze by lightning the match-stick. When she shouted, the appellant ran away. Consistently, the defence taken is such that the appellant had gone out to cook when the said incident took place and he was not in the house. Whereas, the appellant stated in his further statement that he was in the house and attempted to save the wife probably having known the fact that he had taken out the cloths worn by him on the date of incident in the discovery panchnama Exh.22 which had shown the presence of petroleum hydro carbons. If at all the appellant had made an attempt to save the deceased, there is nothing which comesforth as to why there is no stove in the panchnama, why the appellant did not take her to the hospital and as to why, the appellant was not there in the hospital. This conduct of the appellant soon after the incident is relevant fact as per Section 8 of the Evidence Act and we are required to take into consideration when we probe as to which of the dying declarations is more reliable, truthful and natural one.

16. In addition to dying declaration Exh.33, there are other various circumstances which go to suggest that the appellant - accused is the sole author of the crime. The first circumstance which is noticed by us is such that after the incident, the appellant-accused ran away from the house and neighbours residing nearby took the deceased at V.S. Hospital for treatment. The appellant neither made any attempt to approach his in-laws, who are residing just at the distance of one and half kilometers to inform about the incident and he could be arrested only on the next date i.e. on 02.07.2002 at 2:00 pm. at V.S. Hospital. It is an admitted fact that at the time of incident, it was the appellant and his wife were alone in the home. In these circumstances, the appellant is legally duty bound to prove how the deceased sustained burn injuries. Suffice it to point out that Section 106 of the Evidence Act says that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him.

17. No doubt, an attempt was made by the appellant in the further statement to say that the appellant asked deceased to prepare tea for him. However, according to the appellant, he went to sleep. This explanation is absolutely false because at the relevant time, when the appellant asked deceased to prepare tea, there was no one in the room except the appellant and deceased. It has come on record that the deceased has no habit of drinking tea at night. This fact appeared in the evidence of the complainant which was considered as one of the incriminating circumstances against the appellant and when the trial Court put this incriminating circumstances before the appellant accused, he admitted that the deceased had no habit to take tea at night and she was taking tea only once in the morning.

18. One more unnatural conduct of the appellant surfaces is such that if at all the deceased meets with an accidental burn injuries and consequently, the appellant attempted to save her, the cloths of the appellant would show presence of petroleum hydro carbon and in that event, those clothes need not be hidden on the loft wrapped in a mattress which needs to be discovered. We give much emphasis on this conduct because discovery panchnama Exh.22 is not challenged at all. Else, we are aware that some abscondance on the part of the accused is not incriminating circumstance by itself. So, we are not convinced with the submission that the appellant would have made any attempt to save the life of his wife. If at all the appellant was so much concerned to save life of his wife, firstly he would not have run away from the house and on top of it, he would not have chosen not to visit her for nearly two days when she was under treatment. Therefore, the whole story of accidental injuries on account of deceased was preparing tea does not stand anywhere and, therefore, the burden which is on the prosecution to prove beyond reasonable doubt the guilt of the appellant accused has been discharged.

19. So, dying declaration Exh.33 recorded by P.W. No.5 is reliable, trustworthy and natural one. The defence has not elicited any material either to disbelieve the evidence of P.W. No.5 or to infer that P.W. No.5 has any grudge against the appellant so as to implicate him in this crime falsely. We are aware of the fact that we are relying upon such dying declaration which has been recorded by P.W. No.5, who is police officer and we have recorded more than one reasons to rely upon this witness as it is corroborated in material particulars by other independent witness as recorded hereinabove.

20. The appellant has got up the theory of preparing tea at night for him so as to falsely create story of use of stove at the hand of the deceased. As such, no stove was found at the scene of offence.

21. P.W. No.5 drawn discovery panchnama Exh.22 and during such panchnama, the appellant volunteered to show the clothes which he had worn at the time of incident and accordingly, the discovery panchnama was carried out in that regard between 17:00 to 17:15 hrs. and thereafter, he went at the residence of the accused where, in presence of two panchas, he took out shirt with lining and pant which wrapped in mattress which smelt of kerosene. These clothes were sent to F.S.L. marking as B and B1 and on both these articles, presence of petroleum hydro carbon was found as per the said report. None of the panchas, namely, Rajubhai Laljibhai Chavda and Jayesh Mahendrabhai Chaudhary, have been examined by the prosecution. However, the learned trial Judge in page 46 of the judgment, observed as if both of the panchas have been examined by the prosecution but they have not supported the prosecution case. We fail to understand as to how such observation could have been made by the learned trial Judge when both these panchas have not been examined by the prosecution. In any case, we have no difficulty in holding that this discovery panchnama Exh.22 drawn by P.W. No.5 does not raise any doubt and when the seizure of clothes was made by the officer in presence of two panchas, this is another strong corroborative link brought on record by the prosecution. Interestingly, the defence has not challenged this discovery panchnama Exh.22 when this witness was in the witness box.

22. In view of the evidence on record and, more particularly, evidence of P.W. No.2 Dr.S.P. Merchant, according to whom, the burn injuries noticed by him at the time of postmortem, he opined that all those injuries were non-accidental injuries. We are not inclined to give any weightage to vardhi Exhs.14 and 15 or 13 wherein, burn injuries of the deceased were said to be due to suicide on 01.07.2002. We are sorry to state that the police personnels involved in this case including P.W. No.4 are seem to us very indifferent in their approach and performed their duty in a very very casual manner and on such count, we are not inclined to give any benefit to the accused in any event. In none of the dying declaration neither deceased nor any witness suggested burn injuries due to suicide.

23. Dying declaration Exh.33 is the last statement made by the deceased at the stage when she was in a serious apprehension of her death and expected no chances of survival. On such time, it is excepted that the person will speak truth and only truth. As we found that statement Exh.33 has been made voluntarily when the deceased was neither in company of relatives of her husband nor in the company of her parents and her family members and, therefore, it is reliable and there is no attempt either by the deceased or P.W. No.5 Mr.Dodia to cover up the truth or falsely implicate the accused in this crime.

24. Now, it is right time to refer to the following decisions cited by learned advocate Ms.Sadhna Sagar appearing for the appellant in support of her submissions.

24.1. The first decision of the Hon ble Apex Court relied upon by the learned advocate for the appellant in case of Gopal V/s. State of M.P. reported in 2009(2) GLH 489 for the proposition of law that in case of several dying declarations made by the deceased, it is not the plurality of the dying declarations but the reliability thereof that adds weight to the prosecution case. The Hon ble Apex Court, on facts, found conflicting version regarding manner in which the deceased was set on fire in the two dying declarations and ultimately, the appeal of the appellant accused was allowed. In the case on hand, we have appreciated the evidence adduced before the trial Court and out of four dying declarations, 4th dying declaration Exh.33 was found reliable and natural one. Apart from it, the facts of this case are quite distinct and, therefore, on facts, the decision rendered in case of Gopal (supra) is not helpful to the appellant.

24.2. Similarly, the decision rendered in case of Nathaji Chhaganji Thakor and Ors. V/s. State of Gujarat reported in 2009(1) GLH 772, it can be distinguished on facts and in the said case, the Division Bench of this Court found all the dying declarations unreliable and at the end, the appeal of the appellant was allowed.

24.3. The last decision relied upon by the learned advocate for the appellant is in case of Kanti Lal V/s. State of Rajasthan reported in 2009(2) GLH 688 wherein, the Hon ble Apex Court found basic infirmities with regard to the version of the deceased made in the dying declaration. On appreciation of the facts of that case, the Hon ble Apex Court did not find dying declaration as genuine document. In the case on hand, we have found dying declaration Exh.33 as reliable and trustworthy after appreciation of evidence adduced before the trial Court.

25. As such, all the three aforesaid decisions are rendered by the Hon ble Apex Court and Division Bench of this Court in view of the peculiar facts and circumstances of the case and so, they are not helpful to the appellant in any manner.

26. While concluding, we may say that some of the police officers have acted in a very mechanical and very casual manner in such serious case. The height of the matter is such P.W. No.4, who is holding rank of A.C.P. is absolutely failed in discharging his duty as he behaved in a very casual manner while conducting the investigation in such offence. We also do not find ourselves in agreement with the finding recorded by the learned Trial Judge with regard to holding dying declaration Exh.32 recorded by P.W. No.4 as also reliable and truthful. We do not agree with the findings recorded by the learned trial Judge with regard to discovery panchnama Exh.22, more particularly, at page 46 where, the learned trial Judge recorded that panchas of the panchnama Exh.22 have not supported in their deposition prosecution and further, recorded the finding that they have admitted their signatures on the panch slips found from these articles and further finding in this regard so as to infer that panchas have not supported the case for the obvious reasons to help the cause of the accused. We failed to understand as to how such findings can be recorded when none of the panchas of discovery panchnama Exh.22 were examined by the prosecution. We restrain ourselves to take this issue any further.

27. At many occasions, it has been said that rule of prudence may require more careful scrutiny of the evidence of police witnesses. As such, it is not the law that the police witness should not be relied upon and their evidence cannot be accepted unless it is corroborated in material particulars by the other independent evidence. If such a presumption is raised against the police officers without exception, then it will adversely affect moral of police administration and it is not in the larger interest of public at large. Keeping in mind the principles governing the determination as to which dying declaration should be believed in the cases involving multiple dying declarations like present one, it can be concluded that death of deceased was as a result of homicidal death and prosecution succeeded in proving that it was caused by the accused on 30.06.2002 at about 23:00 hrs. at his residence by pouring kerosene on the deceased and set her ablaze with match-stick. No doubt, the prosecution failed to prove ingredient of offence under Section 498A of I.P.C. and, therefore, the learned trial Judge rightly given benefit of doubt and we also find ourselves in agreement with this finding. Whereas, concluding the appellant s guilt under Section 300 of I.P.C., as it was culpable homicidal amounting to murder for his having known fully that pouring kerosene on his wife would surely led her to death.

28. So, in view of the position emerging on record, we have not found any substance in the submissions made by learned advocate Ms.Sadhna Sagar appearing for the appellant and we have found ourselves in agreement with the findings recorded by the learned trial Judge with regard to the reliability of dying declaration Exh.33 and, therefore, the learned trial Judge has rightly convicted the appellant for the offence punishable under Section 302 of I.P.C. and as such, the learned advocate for the appellant also failed to point out any infirmity in the impugned judgment and thus, the appeal being devoid of merits, both on law and facts, we dismiss the same accordingly.

(M.R.SHAH, J.) (S.H.VORA, J.) Hitesh Page 27 of 27

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