Gujarat High Court
Manish Amrutlal Vaniya And Anr. vs The State Of Gujarat on 24 November, 2006
Author: Ravi R. Tripathi
Bench: Ravi R. Tripathi
JUDGMENT Ravi R. Tripathi, J.
1. The appellants-original accused in Sessions Case No. 55 of 2001 are before this Court. The learned Additional Sessions Judge and the Presiding Officer, 11th Fast Track, Gondal, Camp at Dhoraji convicted the accused for the offences under Sections 498A, 306, 323 read with Section 114 of the Indian Penal Code.
The learned Judge was pleased to convict the accused for the offence under Section 506(2) read with Section 114 of IPC also.
The learned Judge was pleased to award 2 years rigorous imprisonment, fine of Rs. 2000/-, in default 2 months simple imprisonment for the offence under Section 498A, read with Section 114 of IPC. Whereas, for offence under Section 306 read with Section 114 of IPC, the learned Judge was pleased to award 5 years rigorous imprisonment, fine of Rs. 5000/-, in default 6 months simple imprisonment. The learned Judge was pleased to award rigorous imprisonment for 1 year, fine of Rs. 1000/-, in default 1 month simple imprisonment for offences under Section 323 read with Section 114 of IPC. The learned Judge was pleased to order that all the main sentences shall run concurrently. The learned Judge was also pleased to order that the period for which the accused have remained in Jail as under-trial prisoners shall be given set off.
2. In this case, the deceased is said to have given three versions before she succumbed to burn injuries.
The incident took place on 18th October 2000 at around 07.30 PM. When she was brought to Dhoraji hospital, she gave history that while she was cooking, the 'primus' got burst, and therefore, she sustained burn injuries. Taking into consideration the condition of the deceased, she was referred to Junagadh Hospital. She died on 21st October 2000 at 09.45 AM. While she was at Junagadh Hospital, the Medical Officer informed and on intimation being received from the Police Chowky of Junagadh Hospital, the learned Executive Magistrate, Shri Harigar Ratigar Aparnathy recorded Dying Declaration of the deceased. The Dying Declaration recorded by the Executive Magistrate is at exh.44. In answer to question No. 2, 'What has happened to you?', the deceased replied as under:
I am burnt while I was pouring kerosene in primus and my sari got wet with kerosene. Thereafter, when I was boiling milk on a gas stove, my sari came in contact with the flame and I have sustained burn injuries. At that time I was alone in the house. I am residing in my house with my in-laws.
In response to question No. 3, namely, 'Do you have any harassment from any one in the house?' she replied that:
No. I have no harassment from anybody in the house and I have nothing to add.
The learned Executive Magistrate then put the fourth question, viz., 'Are you married?' and the deceased replied that, Yes. I have married two years ago. I have one son aged about six months.
The learned Executive Magistrate then put the last question, viz., 'What happened after you have sustained burn injuries?' to which the deceased replied that:
My husband immediately came there and poured a bucketful water and with a quilt he extinguished the fire and thereafter brought me to the hospital.
On the same day, i.e. 18th October 2000, Deputy Superintendent Of Police, Mr. Parghi recorded statement of the deceased, which is at exh.55. In this statement also the deceased had stated that:
Today when my husband and in-laws had gone to the shop and younger brother of my husband had gone to his service, I was alone at my house and around 06.30 I was cooking on gas stove. At that time accidentally, the gas pipe (read 'tube') connecting the gas stove and the gas bottle (read 'gas cylinder') got disconnected and there was fire, by which my clothes caught fire and I have sustained burn injuries.
The deceased further states that, 'Due to hassle, persons residing in the neighbourhood came there. They extinguished fire. Thereafter, my husband and my father in law came from the shop and brought me to Dhoraji Government Hospital. From there I was brought here at Junagadh. My treatment is on. I am fully conscious.' The learned advocate Mr. Khanderia appearing for the appellant emphatically submitted that out of these three versions, namely, (i) history given to the doctor, (ii) Dying Declaration recorded by the Executive Magistrate and (iii) the statement recorded by the Deputy Superintendent of Police, the learned Judge ought to have believed the first two rather than relying upon the statement recorded by the Deputy Superintendent of Police on 19th October 2000, Exh.55.
The learned advocate for the appellant submitted that it is a settled legal position that when there are more than one Dying Declaration, one cannot be rejected because of the contents of the other. He submitted that only because this last Dying Declaration (statement recorded on 19th October 2000, Exh.54) is supporting the case of the prosecution, it cannot be believed and others cannot be brushed aside, because they are not supporting the case of the prosecution, but are supporting the defence.
3. The appeal was filed on 18th October 2006. It came up for hearing on 6th November 2006. After hearing the learned advocate in some detail, the office was directed to call for the Record & Proceedings of the case. After the Record & Proceedings was received the matter was heard on 20th November 2006. The learned advocate made available the copies of necessary material evidence like, Exh.44 - Dying Declaration recorded by the Executive Magistrate, Exh.55-Statement recorded by the Deputy Superintendent of Police on 18th October 2000, Exh.54- statement recorded by the Deputy Superintendent of Police on 19th October 2000. The matter was heard in detail.
As the Court was not convinced of the submissions made by the learned advocate for the appellant, the learned advocate prayed for some time which was granted and the matter was adjourned for today.
4. Today, the matter was heard at length. Mr. Khanderia, learned advocate for the appellant strenuously tried to convince the Court that in view of the fact that there are more than one versions on one line and one version on the other, the learned Judge has committed an error in relying upon the last version, which is coming out from the statement recorded on 19th October 2000, exh.54.
5. The learned advocate relied upon a decision of the Hon'ble the Apex Court in the matter of Nallam Veera Satyanandam and Ors. v. Public Prosecutor, High Court of A.P. in support of his submission. He submitted that the Hon'ble the Apex Court is pleased to hold that, 'when there are multiple Dying Declarations, each one has to be considered independently on its own merit as to its evidentiary value'. The Hon'ble the Apex Court observed that, 'one cannot be rejected because of the contents of the other'.
This precise exercise is undertaken in this case.
i. The 'history' recorded in the medical papers at Government Hospital, Dhoraji is at Mark 20/14. It is recorded by Medical Officer, Class II, Smt.Hiraben Gandhi, Government Hospital, Dhoraji. It is stated that, 'while cooking on 'primus', it got burst therefore, sustained burn injuries'. The doctor has recorded 100% whole body burns of 3rd degree and 4th degree. It is further recorded that primary line of treatment was given to the patient and was referred to the Civil Hospital, Junagadh for further treatment. She was given treatment as out-door patient being Case No. 3461 dated 18th October 2000. This first story coming on record is, 'that there was burst of primus'. In this connection what is to be seen is the Panchnama of scene of offence, which is at exh.56. Exh.56 nowhere even remotely suggests that there was any sign noticed by the Panchas, while drawing Panchnama to suggest that there was 'burst of primus'. On the contrary they have recorded that there was a stove having wicks (wick stove) and the cover which is required to be opened in order to pour kerosene in the stove was found opened and there was little kerosene in the stove. In the scene of offence Panchnama it was specifically noted that there was a gas stove and there was a gas cylinder. Nothing beyond that is found in the Panchnama of scene of offfence. Therefore, the story coming on record first in point of time about the burst of primus, is totally ruled out.
(ii) Next is the version set out in Dying Declaration recorded by the Executive Magistrate, which is at exh.44.
The Executive Magistrate is examined at Exh.42 as PW-6. He has stated that on receiving intimation at around 09.45 PM from ASI, Shri Parmar from the Police Chowky of Junagadh Hospital, he reached the hospital and contacted Dr.Dadania, who identified the patient, Bhavnaben and on his giving opinion that Bhavnaben is fully conscious and is capable of giving Dying Declaration, in presence of the doctor, Dying Declaration was recorded. It commenced at 10.00 PM. The Executive Magistrate has recorded that, 'at the time of recording Dying Declaration all the relatives of the patient and other patients were sent out of the room'. The Dying Declaration was recorded by asking questions one after the other. Answers were given by the patient. After recording of Dying Declaration was over, doctors' endorsement on the statement that during the entire interrogation, the patient was fully conscious, was obtained and thereafter, he put his signature on the statement, and the patient's right hand thumb impression was taken on the statement and the statement. The statement was completed by 10.15 PM.
As stated hereinabove a 'new version has come on record in the Dying Declaration recorded by the Executive Magistrate. It is totally different than the version set out in the medical papers by way of history. Here, the say of the patient-deceased was, 'that while she was pouring kerosene in the primus, her end of sari got wet with kerosene and while boiling milk on the gas stove end of her sari caught fire and the deceased sustained burn injuries'. What is important to note is that she has specifically stated that, 'while she sustained burn injuries she was alone at home'. But thereafter, in answer to question No. 5, 'what happened after she sustained burn injuries', she states that, 'her husband immediately came there and poured a bucketful water and with the help of quilt extinguished the fir and brought her to the hospital.' This part of the story does not tally with the version which has come on record, in exh.55-a statement recorded by the Deputy Superintendent of Police.
(iii) In the statement before the Deputy Superintendent of Police, she has nowhere stated that, 'primus got burst and she sustained burn injuries due to that'. In Exh.55-the statement recorded by the Deputy Superintendent of Police altogether a different version is given by the patient. She has stated that, 'on the day of the incident her husband, her in laws had gone to shop. Younger brother of her husband had gone to service. She was all alone at home. At around 06.30 in the evening while she was cooking on gas stove, the connecting pipe (tube) with the bottle (cylinder) got disconnected and there was sudden fire. By that she sustained burn injuries'. What is important to note is that here she says that, 'the fire was extinguished by the persons residing in her neighbourhood, who rushed to the scene of offence.' Thereafter, her husband and her father in law came and they brought her to Dhoraji Government Hospital.
This version has nothing common with story No. 1 or story No. 2. Then, what follows is the statement recorded by the Deputy Superintendent of Police on 19th October 2000.
(iv) In the statement recorded on 19th October 2000 by the Deputy Superintendent of Police, it is said that, 'the statement which I gave yesterday, i.e. 18th October 2000 was under pressure from my in-laws, who had threatened me that if I give correct version, my brother will be killed and that I will be driven out of the house'. Therefore, under pressure of those people she had not disclosed true and correct facts. She then states that, 'the statement given to the effect that accidentally by fire of the stove she had sustained burn injuries is not correct. After the relatives from her parents side came and they gave her solace, she could reveal the truth, and she gave statement dated 19th October 2000-Exh.54. This statement was recorded after sending relatives on her 'in-laws side' out. She stated that, 'yesterday she was severely beaten by her husband and tired of their taunting about household work and harassment of beating she committed suicide by sprinkling kerosene on her body'. She has also stated that, 'she is fully conscious'.
6. Keeping in min the ruling of the Hon'ble the Apex Court that, 'when there are multiple Dying Declarations, each one has to be considered independently on its own merit as to its evidentiary value', the different versions which have come on record are appreciated.
7. First version, 'burst of primus' is ruled out by the scene of offence Panchanama. Second version that, 'her sari got wet with kerosene while she was pouring kerosene in the primus and then while boiling milk on the gas stove, her sari caught fire and she sustained burn injury and that her husband immediately came there and poured a bucketful water and extinguished the fire with the help of a quilt', is also ruled out from the scene of offence Panchnama.
In the scene of offence Panchnama neither the bucket nor the water is noticed, despite the fact that scene of offence Panchnama was drawn at 08.45 PM. Incident took place at around 06.30 PM. If a bucketful water was poured, it would not have disappeared by the time Panchnama started at 08.15 PM and completed at 08.45 PM. Therefore, this story of getting burn injuries due to sari catching fire from gas stove cannot be believed. Additional reason for not believing this version is that, 'it was specifically stated in reply to question No. 2 that 'while she sustained injuries she was alone at home', but later on the role of her husband was introduced and it was stated that, 'her husband extinguished the fire by pouring a bucketful of water and with the help of a quilt'.
Then comes story No. 3, i.e. of gas pipe (tube) getting disconnected from gas stove and because of gas refill (cylinder) and there being sudden fire by which she sustained injuries. This story is also ruled out by the scene of offence Panchnama, wherein Panchas have been vigilant enough to record all available minute details, such as, wick stove is not a pressure device which could have burst. They have also noticed that there was a gas stove. There was a gas refill (cylinder). The disconnection of gas pipe (tube) is not recorded by Panchas, that means there was no such disconnection. The Panchas could not have missed it, more particularly, when this fact was known to the mother in law of the deceased, who had pointed out the scene of offence to the Panchas. Therefore, even this third story gets ruled out.
8. Finally, what is left with us is the statement dated 19th October 2000, exh.54 and only because it supports the prosecution and does not support the defence, it is not required to be rejected or discarded on the ground that it is at variance from the other versions and hence it is not to be believed.
9. Learned APP Mr. Pujari pointed out that besides this variance in different stories there is very important material on record which establishes beyond reasonable doubt that there was harassment to the deceased and that is an 'Inland Letter Card' which is produced at Exh.41. Mr. Pujari, learned APP invited attention of the Court to the relevant discussion in this regard. It is at internal page 14 of the judgement of the learned Additional Sessions Judge, which is para 17 of the judgement. [Incidentally, para 17 is repeated after para 23] The fact of harassment and taunting from the in-laws, more particularly, mother in law is very well established by this letter, exh.41.
10. The learned Judge has made a threadbare analysis of the multiple Dying Declarations in para 23. The learned Judge has set out reasons for not believing exh.44, exh.55 and the reasons for believing the contents of exh.54. The learned Judge has also taken into consideration the other evidence which is in the form of deposition of PW-2, father of the deceased-Shantilal Raichand, deposition of PW-5, Bhartiben, mother of the deceased and last but not the least, the contents of the Inland Letter Card, Exh.41 and has then recorded findings which this Court finds, are recorded after an analytical appreciation of the evidence.
11. In the result, the appeal fails and the same is dismissed.
12. In view of the order passed in the appeal, Criminal Misc. Application No. 12064 of 2006 is also dismissed.