KANUSINH PUJSINH JHALA v. STATE OF GUJARAT

Presenting these facts from the aforesaid evidence, deposition of Dr. Hansaben has been read and commented. It has been submitted that although the doctor has deposed that the victim aged about 25 years was brought to the hospital by her relatives, that on collecting history from her, she informed that she was burnt with kerosene, that she was admitted in the Emergency Ward and necessary intimation was given to the police on telephone, that initial case papers were prepared by the staff of the hospital and thereafter the details were written by her, that on collecting the history, the victim informed the doctor that she was burnt at about 3.00 a.m. when she was in the veranda of her house, that upon the intimation received by the police, police rushed to the hospital and at that time the patient was in full consciousness, that she remained fully conscious till she died at about 4.35 p.m. on 30.6.1989, that the Executive Magistrate had also attended the hospital at about 8.30 a.m. and recorded the statement of the victim on which occasion, she had an occasion to give certificate that the patient was fully conscious and was in a position to give her statement and that she had also signed yadi in that respect, the doctor has not categorically opined that the victim was in fully fit state of mind so as to give her statement.

It may be noted from this evidence that the witness had no axe to grind either against accused or in favour of the victim. She had made a record of what she saw and observed during the course of treatment which she had given to the victim Hansaben. Even the case papers, Exh. 19 fully corroborate the witness. Very important circumstance which has been noted from case papers is that the accused was also present as a relative. It may be noted that along with accused other relatives from his side had also accompanied the victim to the hospital and at that point of time, none from victim Hansaben's parental side was present at the hospital. Therefore, upon assessment of the evidence of Dr. Hansaben M. Shukla, it hardly appears that although the victim had sustained extensive burns she was not in such a state of mind as to give her statement at one or the other point of time as can be seen from the facts of the prosecution case. ##. Commenting upon the evidence of Executive Magistrate, Soni Chandulal Shivlal, Exh.

20, it has been submitted that neither the witness was specifically empowered in respect of recording of dying declaration nor could be said to be a witness who could be relied upon. Besides, dying declaration which has been recorded by him is in the narration form and therefore no reliance should be placed upon the dying declaration recorded by this witness. Having gone through the dying declaration, Exh. 22 coupled with the oral testimony of the aforesaid witness it has to be noted that the facts narrated therein corroborate the facts which appear in the other statements and the evidence of the other witnesses. Broadly the victim has narrated the same facts as she narrated before Ganpatsinh Mulsinh, P.W. 8, Exh. 27. The witness has referred to Exh. 21 being the yadi. In answer to it, he had gone to the hospital. He has deposed that since Hansaben was fully conscious it was not necessary to record her statement in the form of questions and answers.

The witness has then narrated the story which resemble broadly the facts set out in the opening part of this judgment. At around 7.15 in the morning of 29-6-1989, he received the aforesaid yadi and rushed to the hospital. It might be noted from his evidence that during the period between 8-12-1987 and 1989, he had been given special powers for recording of dying declarations. In the absence of any material extracted in the cross-examination it would be difficult to appreciate and entertain the submission that the witness did not have special powers for recording of dying declaration. It has appeared in the cross-examination of this witness that he had reached the hospital at about 8.15 to 8.30 in the morning and the time of 9.00 `O' clock recorded in the dying declaration in exh. 22 was the time of completing the recording of dying declaration. He had also contacted Dr. Hansaben who upon having been asked by the witness informed the witness that victim Hansaben was conscious.

She had also endorsed the necessary certificate to that effect. The witness also deposed that he did not know any of the relatives of either of the parties and at the time of recording of dying declaration only victim Hansaben Kanusinh herself was present. The acceptance of evidence of this witness by the learned Sessions Judge can hardly be faulted simply because the dying declaration was recorded in narration form. ##. The matter does not end there. Even P.W. 8, Ganpatsinh Mulsinh, the Head Constable who reached at the earliest point of time had an occasion to record the facts which victim Hansaben narrated to him. His evidence would indicate that Hansaben disclosed the aforesaid facts to him at the earliest point of time. When this witness reached the hospital it was around 7.30 a.m. He first saw Dr. Shukla. He also found relatives of the accused present in the hospital. According to his version in the cross-examination, none from the parental side of victim Hansaben was visible.

He clarified that he was not knowing anyone of the relatives and therefore he could not say whether any one was present. Pausing for a moment here it might be noted that even the defence witness has come out with the facts which would indicate that the victim's parents, brother and other relatives from her parental side reached the hospital quite late and certainly after victim Hansaben had an occasion to disclose the fact about how she sustained burn injuries, before this witness. It would be clear from the cross-examination of the witness that the statement of the victim was recorded by this witness within the period of more than 15-20 minutes. The statement which is received in evidence appears at Exh. 29 and the same fully brings out the facts of the prosecution case stated at the earliest point of time. ##. Mr. Desai then commented upon the evidence of panch witness P.W. 2 Jaswantbhai Becharbhai, Exh.

10. This witness had been called as a panch near the residence of the accused for the purpose of preparing panchnama of the evidence of witness and collection of muddamal such as burnt portion of earth where the victim was set on fire, the red coloured tin containing kerosene, the burnt clothes and the mattress and the burnt portion of the ceiling of the veranda. It has been submitted in respect of this panchnama that there has been no mention with regard to either survey number or house number, with the result that prosecution cannot be said to have established the very place of incident as narrated by the victim. This argument deserves to be rejected at the threshold for it has never been the defence that the victim sustained burns in some one else's house or at some other place. (cid:9)There has been no cross-examination of witness Jaswantsinh Becharsinh Jhala and there is a reason why the evidence of this panch witness coupled with the panchnama to which he is the witness be not accepted. ##. Then there is reference to the evidence of P.W. 5, Exh.

23 Surajben Jethabhai. Referring to her evidence that on 29-6-1989 she was in the hospital on account of the fact that her son was ill, that when she had seen the victim down with burns on whole of her body, that no question was put to her, that she was not conscious, that she signed panchnama Exh. 24 accordingly, it has been submitted that the victim was not in fit state of mind. Now the time stated in Exh. 24 is 16.00 to 16.15 hours. This panchnama indicates that the victim was conscious and that she disclosed that she was burnt alive by her husband. It would appear from the evidence of the aforesaid witness that she has not supported the prosecution case qua the panchnama Exh. 24. However, that will not have any adverse effect of dislodging the prosecution case that when her dying declaration came to be recorded she was in fit state of mind. Besides, this witness had an occasion to act as one of the two panchas at around 4.00 to 4.15 p.m. on 29-6-1989.

Much prior to that the aforesaid dying declarations of the victim had seen the light of the day. ##. No other evidence has been commented upon by the learned advocate for the appellant. However, he submitted that at the earliest point of time, namely, soon after the incident, the victim has not disclosed the facts of the prosecution case before anybody. However, it might be noted in this connection that all the relatives and the persons who were present by her side at her husband's house were from the side of her husband and it would be natural for her to keep silence and not to positively indict her husband at that point of time. It might further be noted that no sooner she was in the company of independent persons such as Dr. Hansaben and Head Constable Ganpatsinh Mulsinh she disclosed the facts as to how she sustained the burn injuries. ##. The learned Sessions Judge has extensively dealt with the circumstances which lend support to the prosecution case as narrated by victim Hansaben in her dying declaration.

The decisions which had been canvassed have also been succinctly considered by the learned Sessions Judge. Mr. Desai had nothing more to add to what has been discussed by the learned Sessions Judge except the submissions which have just been considered. ##. Mr. Desai however referred to the defence evidence as aforesaid. The defence witness Narendrasinh Gulabsinh Jhala has admitted in his cross-examination that he did not have any occasion to talk with victim Hansaben, that he had parked the jeep at a distance of around 25' from the house, that immediately victim Hansaben was brought to the jeep and she was taken to the hospital, that it took around an hour after Hansaben was admitted to the hospital when he had an occasion to start for Waktapur where he reached in that jeep after around 15 to 20 minutes, that it took around half an hour to forty five minutes for the relatives of Hansaben to be ready for going to the hospital at Himmatnagar, that it took around 20 minutes further for reaching the hospital at Himmatnagar, that all throughout he had an occasion to go by the jeep to all the places and he did not alight the jeep and continued sitting on the driver's seat, that he was acquainted with the accused, that he remained present on all the dates when the evidence was recorded and that he was required to appear as a witness on the summons received from the court, but his evidence was not recorded accordingly and even then he remained present in the court on all the dates when the evidence was recorded in the matter.

The learned Sessions Judge has under such circumstances rightly discarded his evidence about Hansaben having disclosed that she committed suicide. In fact his cross-examination itself belies him. However, as stated above, a very important circumstance about victim Hansaben's parents and brother and other relatives reaching the hospital quite late in point of time and after her statement was recorded would assume great deal of importance. In our considered opinion, the learned Sessions Judge has rightly observed that the defence witness was taking interest in the defence with so much intensity that he was remaining consistently present on every adjournment though not required and that his evidence would run counter to the cause of defence. ##. Having gone through the entire evidence, the submissions of the learned A.P.P. that the prosecution story has remained consistent throughout the evidence and that it is quite natural deserve to be accepted.