SATISHBHAI KANTILALL VASAVA v. STATE OF GUJARAT

(Per : HONOURABLE MR.JUSTICE KS JHAVERI)

1.0 This appeal is directed against judgment and order dated 25th February 2002 passed by learned Additional Sessions Judge, Bharuch, in Sessions Case No.96 of 2001, whereby the learned Additional Sessions Judge has convicted the appellant for offence punishable under section 302 of IPC and ordered to undergo rigorous imprisonment for life and to pay fine of Rs.1000/-, in default, to undergo further imprisonment for six months.

2.0 The prosecution case, in short is as under:

2.1 On 29th January 2001 at about 8.30 PM the appellant-accused had come to his house which is situated below the Golden Bridge. His wife Sumanben served him “Kichdi and curry. The appellant was liking non-vegetarian food and he did not like Kichdi and therefore he said that he did not want to eat such food. Thereupon Suman said that if he wanted non-vegetarian food he should arrange for money. Thereupon the appellant started abusing her and took the lighted kerosene lamp and thrown at Sumanben as a result of which her sari started burning CR.A/365/2002 JUDGMENT and Sumanben run out of the house . On seeing her somebody poured water on her but she got burn injuries all over the body. She was, therefore removed to the hospital, Bharuch and police was informed about the incident.

2.2 On receipt of information Inspector Shri H.J. Chaudhary has reached the hospital and a complaint was lodged. The victim has recorded her complaint wherein she has stated that on 29th January between 8 and 8.30 pm she had served dinner to her husband, the appellant herein, since her husband did not like kitchdi, he started abusing her and therefore she replied that if he wanted non-vegetarian food, he should arrange for money and on hearing this the appellant has taken a lighted kerosene lamp and thrown at Sumanben as a result of which her sari started burning, she ran out of house and somebody poured water, but she received serious burn injuries.

2.3 Subsequently Yadi was sent to Executive Magistrate and on his arrival dying declaration was recorded. However, since during that period an earthquake had occurred, Sumanben was discharged and brought back to her residence. Ultimately Sumanben succumbed to the burn injuries on 28.2.2001 and therefore section 302 was added to the complaint and the same was sent to concerned police station. CR.A/365/2002 JUDGMENT

2.4 The Police Inspector has prepared panchnama and after filling up Marnotar form the dead body was sent for postmortem, prepared panchnama of scene of offence and recorded statements of various witnesses. The Police Inspector has also collected the muddamal articles and sent the same for FSL inpection. The appellant was arrested on 1st February 2001. After receipt of the FSL Report, postmortem report, etc. the same were kept in the file and ultimately chargesheet was filed in the court of learned Chief Judicial Magistrate, Bharuch and as the case was exclusively triable by the Court of Sessions the same was committed to the Sessions Court, Bharuch which was numbered as Sessions Case No.96 of 2001. The case was transferred to the court of learned Additional Sessions Judge, Bharuch for disposal of the same on merits. As the appellant has pleaded not guilty to the said charge, trial was initiated against him.

2.5 In order to prove the case the prosecution has examined in all 15 witnesses and has produced various documents vide Exh.7. On submission of closing pursis, learned Additional Sessions Judge has delivered the judgement and convicted the appellant-accused as mentioned above which has been given rise to the present appeal.

3.0 We have heard Mr. Brahmbhatt, learned Advocate for the appellant and Mr. H.L.Jani, learned APP for respondent State at length CR.A/365/2002 JUDGMENT and perused the impugned judgement and the documentary evidence on record.

4.0 Mr. Brambhatt, learned Advocate for the appellant has submitted that the prosecution has not proved the case against the appellant beyond doubt.

4.1 He submitted that the case is solely based on the dying declaration and there are no eye witnesses to the incident and therefore no reliance can be placed upon the dying declaration.

4.2 He submitted that looking to the overall facts and circumstances of the case benefit of doubt is required to be given to the present appellant and the appeal deserves to be allowed.

5.0 Mr. H.L. Jani, learned APP appearing for the State has vehemently opposed the appeal on various grounds. He has submitted that the prosecution has proved the case against the present appellant beyond doubt inasmuch as the wife of the appellant has suffered serious burn injuries and the dying declaration is sufficient proof to convict the appellant.

5.1 He submitted that the prosecution witnesses have clearly CR.A/365/2002 JUDGMENT established the case against the appellant and it is proved that it is because of the appellant the victim suffered burn injuries. According to him the dying declaration has been recorded by the Executive Magistrate, which is trustworthy and the report of Police Inspector and other documentary evidence clearly establish the guilt of the appellant.

5.2 Mr. Jani has, therefore submitted that the prosecution has proved the case beyond doubt and therefore the appeal may be dismissed.

5.3 He further submitted that the present appellant is absconding since 15th February 2007 and even as per the subsequent reports dated 4th August 2007 and 9th February 2008 shows that the appellant is still absconding and therefore the matter may be considered very seriously.

6.0 Even though the appellant is still absconding, in order to render substantial justice, we have gone through the entire evidence on record and especially the evidence of PSI Chaudhary (PW1), mother of the victim (PW4), brother of the victim (PW5) and dying declaration recorded by the Executive Magistrate (PW8). We have also perused the evidence of the Dr. Ashokkumar (PW6) and the postmortem report at Exh.22.

7.0 Santaben Ravjibhai (PW-4), who is the mother of the victim, was CR.A/365/2002 JUDGMENT examined by the prosecution at Exh.16. She has deposed that her daughter Suman and her husband Ratish Kantilal i.e. the present appellant were staying together in the slum near the Golden Bridge. On the day of the incident Suman had prepared curry of Potato-brinjal, but the appellant had asked her as to why she has not prepared non- vegetarian food. Thereafter he has taken the lighted lamp and thrown at Suman as a result of which her sari started burning and Suman ran out of the house. This witness was sitting out side the hut and water was poured over Suman and she received serious burn injuries and therefore she was taken to the hospital and ultimately she succumbed to the injuries. This witness has identified the appellant in the court. She was cross-examined at length, but nothing incriminating has come out from her evidence.

8.0 Mohanbhai Mangabhai Mistri (PW8) was examined at Exh.23. He has deposed that on 30.1.2001, on receipt of Varthy, he had gone to Civil Hospital Bharuch at about 10.30 at night. Sumanben was in injured condition. He inquired about the condition of the victim to give the dying declaration and the doctor informed that the victim is in a fit condition to give the dying declaration. In her dying declaration the victim has stated that she was brought to the hospital by her mother and she has completely narrated the story including that the appellant has thrown CR.A/365/2002 JUDGMENT the lighted lamp at her and her polyester sari started burning as a result of which she received serious burn injuries.

9.0 In view of the above evidence it is very clear that on the date of the incident the appellant had thrown lighted lamp at the victim as a result of which she received burn injuries. This version of the victim has been fully supported by the evidence of her mother Santaben Ravjibhai (PW-4) who was sitting outside the hut. Her presence at the place is natural one as she is mother of the victim. The said witness Santaben had taken the victim to the hospital. Therefore the prosecution has clearly established that the burn injuries were caused in view of the fact that the appellant has thrown the lighted lamp at the victim.

10.0 Dr. Ashokkumar Parmanand Gupta (PW6-Exh.16) has been examined by the prosecution. He deposed that the victim had narrated the case history and that her husband had burned her. The postmortem report states that the cause of death is septicomic shock following 1st and 2nd degree (46.52%) burns. Therefore it is clear that the victim has succumbed to burn injuries and therefore this is a homicidal death. He has deposed that he has given treatment to the victim and he has admitted his signature in the certificate.

12.0 In the case of Vikas & Others Vs. State of Maharashtra, reported CR.A/365/2002 JUDGMENT in 2008(1) Supreme 433, the Apex Court has extensively dealt with the question of admissibility of dying declaration. In paragraph 36 the Apex Court held as under:

The Court, referring to earlier case law, summed up principles governing dying declaration as under: There is neither rule of law nor of prudence that dying [i] declaration cannot be acted upon without corroboration. [ii] If the Court is satisfied that the dying declaration is true and voluntary it can base conviction on it, without corroboration. [ii] Tis Court has to scrutinise the dying declaration carefully and must ensure that the declaration is not the result of tutoring, prompting or imagination. The deceased had opportunity to observe and identify the assailants and was in a fit state to make the declaration. [iv] Where dying declaration is suspicious it should not be acted upon without corroborative evidence. [v] Where the deceased was unconscious and could never make any dyign declaration the evidence with regard to it is to be rejected. A dying declaration which suffers from infirmity [vi] cannot form the basis of conviction. [vii] Merely because a dying declaration does not contain the details as to the occurrence, it is not to be rejected. [viii] Equally, merely because it is a brief statement, it is not to be discarded. On the contrary, the shortness of the statement itself guarantees truth. [ix] Normally the court in Order to satisfy whether CR.A/365/2002 JUDGMENT deceased was in a fit mental condition to make the dying declaration look up to the medical opinion. But were the eye witness has said that the deceased was in a fit and conscious state to make this dying declaration, the medical opinion cannot prevail. [x] Where the prosecution version differs from the version as given in the dying declaration, the said declaration cannot be acted upon. It is further held in the aforesaid decision that where a dying declaration is recorded by a competent Magistrate, it would stand on a 'much higher footing' and the rule requiring corroboration is merely a rule of prudence.

13.0 The dying declaration was recorded by Mohanbhai Mangabhai Mistri (PW8-Exh.23). Before recording the dying declaration he has inquired from the concerned doctor whether the victim was in a fit condition to give dying declaration and the doctor has certificated that she was in good mental condition. Thereupon dying declaration has been recorded. The victim has clearly narrated the history as to how she has got burn injuries as a result of the act of the appellant. Her dying declaration is fully corroborated with other evidence and the Yadi of dying declaration is countersigned by the medical officer. The role played by the appellant has been categorically narrated in the aforesaid dying declaration before the Executive Magistrate and also the in the evidence of Santaben( (PW4-Exh.16), who is the mother of the victim. CR.A/365/2002 JUDGMENT

14.0 This Court has carefully scrutinized the dying declaration and we are of the opinion that the declaration is not the result of tutoring, prompting or imagination. We also find that the dying declaration is short and to the point and we are completely satisfied that the victim was in a fit mental condition to make the dying declaration which is certified by the medical officer. We are further of the opinion that the dying declaration is true and voluntary and it can base conviction on it, without any corroboration. Therefore the dying declaration is completely trustworthy and cannot be discarded on any ground.

15.0 In view of the fact that the case against the appellant has been proved by the prosecution beyond reasonable doubt, we do not find that any illegality or irregularity has been committed by the learned Sessions Judge warranting interference by this Court in the impugned judgement and order of conviction and sentence. We are in complete agreement with the findings arrived at by the learned Sessions Judge and therefore the present appeal requires to be dismissed. Accordingly this appeal is dismissed. [R.P. DHOLAKIA, J.]

[K.S. JHAVERI, J.]