Gujarat High Court
Maganbhai Reshmabhai Damor vs State Of ... on 27 April, 2016
Author: Ks Jhaveri
Bench: Ks Jhaveri, Biren Vaishnav
R/CR.A/444/2012 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL APPEAL NO. 444 of 2012
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE KS JHAVERI
and
HONOURABLE MR.JUSTICE BIREN VAISHNAV
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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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MAGANBHAI RESHMABHAI DAMOR....Appellant(s)
Versus
STATE OF GUJARAT....Opponent(s)/Respondent(s)
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Appearance:
MR GAJENDRA P BAGHEL, ADVOCATE for the Appellant(s) No. 1
MR J P BAGHEL, ADVOCATE for the Appellant(s) No. 1
MS CM SHAH, ADDL PUBLIC PROSECUTOR for the
Opponent(s)/Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE KS JHAVERI
and
HONOURABLE MR.JUSTICE BIREN VAISHNAV
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Date : 27/04/2016
ORAL JUDGMENT
(PER : HONOURABLE MR.JUSTICE KS JHAVERI)
1. The appellant - original accused was inter alia sentenced to undergo life imprisonment and was directed to pay fine of Rs. 1,000/-, in default, to undergo simple imprisonment for three months for offence punishable under section 302 of Indian Penal Code by impugned judgement and order dated 08.04.2011 in Sessions Case No. 218 of 2009 by the Additional Sessions Judge, Fast Track Court No. 3 , Panchmahal at Godhra.
2. The brief matrix of the prosecution case as disclosed during the trial is that there existed a property dispute between the deceased and the accused. On 08.08.2009, the deceased had gone to the forest as he worked as a watchman in the Bakor Forest range. While the deceased was sleeping on the ground in the forest, he felt someone pour kerosene on him and when he opened his eyes, he saw that the accused was standing there with a tin of kerosene and the accused immediately put a live matchstick on the complainant and set him ablaze. The accused and one Reva Reshma who was also present along with the accused at the scene of offence ran away from there. The complainant started shouting and entered his house and his family members poured water on him and thereafter took him to hospital.
2.1 A complaint in respect of the said incident was registered with Khanpur Police Station being C.R. I-No. 65 of Page 2 of 11 HC-NIC Page 2 of 11 Created On Wed May 04 00:12:05 IST 2016 R/CR.A/444/2012 JUDGMENT 2009 for offence punishable under section 302 of Indian Penal Code. Necessary panchnamas were drawn and investigation was carried out and chargesheet was submitted against the appellant. Thereafter, as the case was exclusively triable by the Sessions Court, the same was committed to the Sessions Court at Nadiad under Section 209 of the Code, where it was registered as Sessions Case No. 218 of 2009. Charge vide Ex. 2 came to be framed against the appellant. He pleaded not guilty and claimed to be tried.
2.2 The trial was initiated against the appellant and during the course of trial the prosecution examined following witnesses whose evidences have been read before us:
P.W. Name of Witness Exhibit
No. No.
1 Lakshmanbhai Damor 12
2 Somiben Damor 20
3 Kantibhai Damor 21
4 Amrabhai Damor 23
5 Galabhai Damor 30
6 Babubhai Pateliya 32
7 Mohanbhai Damor 34
8 Fulabhai Maliwad 35
9 Premabhai Damor 37
10 Chandubhai Pargi 39
11 Bharatkumar Mahajan 42
12 Gordhanbhai Variya 44
13 Rameshbhai Kalasva 46
14 Jayantilal Shrimali 48
15 Arvindkumar Ansari 53
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2.3 The prosecution has also relied upon certain
documentary evidence such as panchnama of scene of
offence at Ex. 24, panchnama of body condition of accused at Ex. 33, preliminary report of FSL, inquest panchnama at Ex. 52, complaint at Ex. 54, cause of death certificate at Ex. 61 etc. 2.4 At the end of trial, after recording the statement of the accused and hearing arguments on behalf of prosecution and the defence, the learned Additional Sessions Judge convicted the appellant of the charges leveled against him by impugned judgement and order. Being aggrieved by and dissatisfied with the aforesaid judgement and order passed by the Sessions Court the appellant has preferred the present appeal.
3. Heard Mr. Gajendra Baghel, learned advocate appearing for the appellant and Ms. C.M. Shah, learned APP appearing for respondent - State at considerable length. Both the advocates have taken us through the oral as well as documentary evidence recorded during the course of trial.
4. Mr. Gajendra Baghel contended that there is no eye witness to the alleged offence though there are residences near the place of offence. He submitted that the incident occurred at 04.00 am and the fact that there was no eye witness is quite unnatural. He further submitted that the so called dying declaration is quite doubtful and the same cannot be relied upon. He submitted that there is no endorsement of the doctor regarding the physical fitness in the yadi and/or dying declaration. He submitted that there are variations Page 4 of 11 HC-NIC Page 4 of 11 Created On Wed May 04 00:12:05 IST 2016 R/CR.A/444/2012 JUDGMENT and contradictions in the evidence of the witnesses and therefore the accused deserves to be granted benefit of doubt.
5. On the other hand, opposing this appeal, Ms. CM Shah supported the impugned judgment of the learned trial judge and submitted that the prosecution has proved the case against the appellant beyond reasonable doubt and that the dying declaration and the history before the doctor also strengthens the prosecution case against the appellant and therefore he has urged that the appeal may be dismissed.
6. The prosecution has examined Lakshmanbhai Valabhai- P.W. 1 vide Ex. 12. This witness is the son of the deceased and this witness has stated that five days prior to the alleged incident the accused had quarreled with this witness with regard to some land dispute. This witness has stated that on the date of incident early morning while he was sleeping his mother awakened him and told him that his father has been set on fire. This witness took the deceased to hospital in ambulance. This witness has stated that the deceased was taken to Lunawada hospital wherein the deceased informed this witness that the accused and Reva Reshma had poured kerosene on him and set him ablaze.
6.1 P.W. 2 - Somiben Damor is the wife of the deceased. This witness has also supported the case of the prosecution. She has stated that her husband - the deceased had gone to forest as he worked as watchman and while he was sleeping, the accused and his mother poured kerosene on him and set him ablaze. This witness has further stated that the deceased came running towards his home and informed this witness Page 5 of 11 HC-NIC Page 5 of 11 Created On Wed May 04 00:12:05 IST 2016 R/CR.A/444/2012 JUDGMENT that the accused and his mother had committed the alleged offence. She has further stated that she awakened P.W. 1 and informed him.
6.3 P.W. 3 & 5 to 9 have been declared hostile. P.W. 4 - Amrabhai Damor is the panch witness who has supported the panchnama of scene of offence. P.W. 10 is the Investigating Officer and P.W. 11 is the Executive Magistrate who have supported the case of the prosecution. P.W. 14 is the medical officer who treated the deceased at Godhra Civil Hospital and thereafter also performed the post mortem on the deceased.
6.4 The evidence of the Executive Magistrate who recorded the dying declaration of the deceased is on record. He has been examined as P.W. 11 by the prosecution. P.W. 11, Shri Bharatkumar Mahajan has deposed that pursuant to the yadi received by him from the police station he went to Civil Hospital, Godhra to record the statement of the victim. He has deposed that he started recording the dying declaration of the victim. He has stated that the victim had mentioned that the appellant had poured kerosene over him and set him on fire. He has stated that the victim mentioned in the dying declaration that when he was sleeping on the ground the appellant came there with a can of kerosene and set him ablaze. He mentioned that the victim also stated that the appellant had a land dispute with the victim. This witness has stated that the recording of dying declaration was over by 1015 hours and thereafter the victim put his left hand thumb impression.
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7. 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."
7.1 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 Wed May 04 00:12:05 IST 2016 R/CR.A/444/2012 JUDGMENT there is no reason for courts to doubt truthfulness of such dying declaration.
7.2 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. He stated that the deceased answered his questions and also appended his left hand thumb impression after the procedure was over.
8. 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 dying declaration has been recorded in a question - answer form and the state of mind of the deceased was noted before and after the recording by the doctor concerned.
9. Now we shall take up the other 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. 14- Dr. J.J. Shrimali when he was brought to hospital for treatment.
9.1 P.W. 14 - Dr. Shrimali vide his deposition at Ex. 48 has stated that on 09.08.2009 while he was on duty at Godhra Civil Hospital when the deceased was brought from CHC Lunawada with a refer note for treatment pursuant to burn injuries sustained by him. This witness has stated that when Page 8 of 11 HC-NIC Page 8 of 11 Created On Wed May 04 00:12:05 IST 2016 R/CR.A/444/2012 JUDGMENT he asked about the history of the burns, the deceased had informed him that the appellant and Reva Reshma had poured kerosene on him and set him on fire. This witness has stated that the burn injuries sustained by the deceased were to the extent of 92%.
10. In the case of Krishan vs. State of Haryana reported in (2013) 3 SCC 280, the Apex Court has held that it is not an absolute principle of law that a dying declaration cannot form the sole basis of conviction of an accused. Where the dying declaration is true and correct, the attendant circumstances show it to be reliable and it has been recorded in accordance with law, the deceased made the dying declaration of her own accord and upon due certification by the doctor with regard to the state of mind and body, then it may not be necessary for the court to look for corroboration. In such cases, the dying declaration alone can form the basis for the conviction of the accused. But where the dying declaration itself is attended by suspicious circumstances, has not been recorded in accordance with law and settled procedures and practices, then, it may be necessary for the court to look for corroboration of the same.
12. However, the complaint, the dying declaration recorded by the Executive Magistrate and the history recorded before the doctor is duly corroborated with the ocular evidence as well as medical reports and it is clear that the deceased died a homicidal death due to the act of the appellant in pouring kerosene over him and setting him ablaze. The deceased had also given oral dying declaration before his son and wife and we do not find any infirmity less variation in these dying Page 9 of 11 HC-NIC Page 9 of 11 Created On Wed May 04 00:12:05 IST 2016 R/CR.A/444/2012 JUDGMENT declarations. The deceased has clearly and specifically explained as to how and why the accused had committed the alleged offence. We do find that the dying declaration is trust worthy. In our opinion the dying declarations and the history before the doctor are sufficient to fasten the liability of murder of deceased on the appellant. The dying declaration can be safely relied upon to convict the accused. We, therefore, do not find any reason to disbelieve the dying declaration. The trial court has considering all these facts convicted the accused under section 302 of Indian Penal Code which is just and proper. We, therefore, do not see any reason for interference in the appeal.
13. In a recent decision of the Apex Court in the case of Bhaikon @ Bakul Borah vs. State of Assam reported in JT 2013 (10) SC 373 has held as under:
"15. This Court, in a series of decisions has held that life imprisonment means imprisonment for whole of life subject to the remission power granted under Articles 72 and 161 of the Constitution of India. [Vide Life Convict @ Khoka Prasanta Sen vs. B.K. Srivastava & Ors. (2013) 3 SCC 425, Mohinder Singh vs. State of Punjab, (2013) 3 SCC 294, Sangeet and Anr. vs. State of Haryana (2013) 2 SCC 452, Rameshbhai Chandubhai Rathod (2) vs. State of Gujarat (2011) 2 SCC 764, Chhote Lal vs. State of Madhya Pradesh (2011) 8 SCR 239, Mulla and Another vs. State of Uttar Pradesh (2010) 3 SCC 508, Maru Ram vs. Union of India & Ors. (1981) 1 SCC 107, State of Madhya Pradesh vs. Ratan Singh & Others (1976) 3 SCC 470 and Gopal Vinayak Godse vs. State of Maharashtra AIR 1961 SC 600].
16. In view of the clear decisions over decades, the argument of learned senior counsel for the appellant-accused is unsustainable, at the same Page 10 of 11 HC-NIC Page 10 of 11 Created On Wed May 04 00:12:05 IST 2016 R/CR.A/444/2012 JUDGMENT time, we are not restricting the power of executive as provided in the Constitution of India. For adequate reasons, it is for the said authorities to exercise their power in an appropriate case."
14. Accordingly, appeal is hereby dismissed. The judgement and order dated 08.04.2011 passed by the Additional Sessions Judge, FTC No. 3, Panchmahal at Godhra in Sessions Case No. 218 of 2009 is confirmed. However, life imprisonment as awarded by the trial court would not be till last breath and the case of the appellants may be reviewed by the appropriate authority after 14 years of his serving sentence considering the decision of Apex Court in the case of Bhaikon @ Bakul Borah (supra). The accused shall be given benefit of remission and set off in accordance with law. R & P, if lying with this court, to be sent back forthwith.
(K.S.JHAVERI, J.) (BIREN VAISHNAV, J.) divya Page 11 of 11 HC-NIC Page 11 of 11 Created On Wed May 04 00:12:05 IST 2016