This appeal arises out of judgment and order rendered by learned City Sessions Judge, Ahmedabad on 25th January 2005 in Sessions Case No.40 of 2004. Present appellants were the accused before the trial Court, and were charged with murder of Champaben Wd/o. Kalidas Chunara by setting her on fire pouring kerosene on her on 13th December 2001 at about 1430 hrs near the house of Kanubhai Sharbatwala in Machhipir area near Baalvatika, Ahmedabad. 2. The prosecution case, based on the complaint filed by the deceased Champaben herself, was that the deceased was staying with her mother inlaw, brotherinlaw and children in the hut near Water Tank, Macchipir Area, Baalvatika, Ahmedabad. The hut was sold off by her motherinlaw and since then they were staying on the footpath, whereas her motherinlaw and brotherinlaw had gone away to stay elsewhere. On the day of incident while she was passing by the hut of Kanubhai Sharbatwala, the three accused persons attacked her and gave her fist and kick blows and then A3 caught hold of her and A1 poured kerosene over her and set her on fire. A2 also aided and abetted the said offence.
2.1 Offence was registered with Maninagar Police Station and charge sheet was filed in Court of Metropolitan Magistrate who committed the case to the Court of Sessions and on committal to the Court of Sessions, sessions case number came to be registered.
3. Charge was framed against the accused persons at Exhibit1 to which all the three pleaded not guilty and came to be tried.
4. The trial court found that the prosecution successfully proved the case against all the three accused and convicted the accused persons for offences punishable under Sections 302 and 323 read with Section 114 of Indian Penal Code and convicted them therefor. All the three are sentenced to undergo imprisonment for life with a fine of Rs.5,000/ in default to undergo further imprisonment for period of two years for the offence of murder, and for offence of causing hurt they are imposed fine of Rs.2000/ in default to undergo simple imprisonment for six months. The sentences were ordered to run concurrently. Benefit of set off was also given.
5. Learned advocate Mr. M.H.M. Sheikh appeared for the appellants and learned APP Mr. R. C. Kodekar for the State.
6. Learned advocate Mr. Sheikh submitted that the incident occurred in a thickly populated area at about 2:30 p.m. despite that the prosecution has not examined any eye witness who would claim to have seen the incident. He submitted that the case depends on Dying Declarations which are inconsistent. According to him, the first Dying Declaration does not implicate any of the accused which was given before the doctor. The prosecution case has failed to examine that doctor and the history given to that doctor recorded in the case papers was that the assailants were the friends of accused Shaileshbhai meaning thereby that none of the accused were assailants but three friends of Shaileshbhai were the assailants. The next Dying Declaration is recorded in the form of medical history by Dr. Kunajn Kantibhai Patel [PW2, Exh.11]where the deceased implicates the accused persons but at that time daughter of deceased viz. Reetaben was present. Similarly, when Dying Declaration was recorded by Executive Magistrate viz. Vinodbhai Mafatbhai Patel [PW3, Exh.14], the deceased was in company of Reetaben for long time, and, therefore, the two Dying Delectations may not be relied upon. The case of the defence is that Reetaben had some grievance against the accused, and, therefore, she has tried to settle the counts by falsely implicating the accused persons. These aspects are not considered by trial Court and, therefore, this appeal may be allowed.
7. Learned APP, on the other hand, submitted that there are three Dying Declarations out of which two are consistent. They are recorded by independent officers like Doctor and Executive Magistrate who have no reason to depose falsely against the accused. Even they have no reason to create false Dying Declarations. The deceased has consistently implicated the accused. When the Dying Declarations were given, she was conscious and in a fit state of mind as certified by the Doctor. The Dying Declarations, therefore, pass both the tests of genuineness and truthfulness and the trial Court was justified in recording conviction. As such the appeal may be dismissed.
8. We have examined the Records and Proceedings in the context of rival submissions. It is true that the case depends on Dying Declarations. It is equally true that when the deceased was taken to hospital, firstly she was treated by Dr. Sandip and there is an endorsement in the case papers that, “ alleged history of burns over body by Shaileshbhai Chunara's friends at water tank, Baalvatika”. This was recorded at 3:00 p.m. On 13th December 2001. Thereafter she was taken to Dr. Kunjan Patel at 3:15 p.m. where it is recorded that, “ alleged history of being burnt by three persons viz. Balubhai Hemabhai, Shaileshbhai Balubhai and Chinabhai Balubhai near her house in Macchipir at 2:30 p.m. on 13th December 2001. The patient says that she has a long standing quarrel with the opposite persons and they had quarreled with her today after which they hold her and poured kerosene over her and burnt her. When this was recorded, it is recorded in the case papers that the patient was conscious, oriented and used to obey verbal command. Thereafter a Yaadi was sent to Executive Magistrate to record Dying Declaration. It transpires from evidence of Dr.Kunjan Patel that, he had examined the patient and put an endorsement on the Yaadi which was sent to the Executive Magistrate to the effect that patient was conscious and fit to give Dying Declaration. Upon receiving Yaadi, the Executive Magistrate went to the hospital where the constable took him to the patient, he removed the relatives of the injured from the room before recording Dying Declaration, he approached the doctor and doctor after examining the patient again put an endorsement on the Yaadi that the patient was conscious and fit to give Dying Declaration. It transpires from the evidence of Executive Magistrate viz. Vinodbhai Mafatbhai Patel (Exh.14) that he had put certain questions to the patient to ascertain her state of mind and consciousness and on being satisfied, he recorded the Dying Declaration. That Dying Declaration is at Exh.16 where in answer to question No.13, the deceased has stated that she had a quarrel with Balu Hema, Shailesh Balu and China Balu, and, therefore, Balu Hema poured kerosene on her whereas China Balu caught hold off her and Shailesh Balu ignited her with a matchstick and thus, she is set on fire by these three persons.
9. Forgoing discussion would show that barring first history recorded by the doctor, there is no inconsistency in the Dying Declarations which are recorded by a Doctor and a Magistrate. Even during the course of arguments, none of the Dying Declarations are assailed on the ground of genuineness or procedure wise. What is argued is that they are inconsistent and not truthful. But as stated earlier, we do not find any inconsistency in the Dying Declarations. The daughter of the deceased viz. Reetaben has been examined. She has not supported the case of the prosecution. However, the attempt on the part of the defence that she has improved her version and has tried to falsely implicate the accused persons is disapproved by the prosecution during the evidence of the Investigating Officer when he states that he had recorded statement of the said witness and she had stated before him that the deceased had told her that the three persons had set her on fire. With this strong and consistent evidence in the form of Dying Declarations, we are of the view that there is no scope or reason for us to doubt the truthfulness of the Dying Declaration. No reasons are shown to us for the deceased to falsely implicate any of the accused. The participation of all the three accused is consistently indicated, and, therefore, in our opinion, no error can be said to have been committed by the trial Court in recording the conviction of all the appellants for the offence of murder of Champaben Chunara under Section 302 read with 114 of Indian Penal Code, 1860.
10. We understand that accused No.1 Balubhai Hemabhai Chunara has expired on March 20th, 2006. A xerox copy of his death certificate is placed on our record by learned advocate Mr. Sheikh. Accused No.3 Chinabhai @ Sanjay Balubhai Chunara is on bail by virtue of order passed by this Court in Criminal Miscellaneous Application No.1768 of 2009, dated 16th April, 2009. In light of dismissal of this appeal, his bail stands cancelled and he shall surrender to prison within four weeks.
[A. L. DAVE, J.] Amit [N. V. ANJARIA, J.]