(Per : HONOURABLE MR.JUSTICE A.L.DAVE) 1 The present appeal arises out of a judgment and order rendered by City Sessions Court, Ahmedabad, in Sessions Case No.119 of 2005, on 1st March, 2006, convicting the appellant for the offence of murder of Daxaben Hasmukhbhai by setting her to fire after pouring kerosene on her on 21.9.2004 at about 9.45 a.m. in her house located in the Gujarat Housing Board Colony, Bapunagar, Ahmedabad and sentencing her the imprisonment of life and also fine of Rs. 1,000/- , in default, to undergo SI for six months.
2 Facts of the prosecution case are as under:
2.1 That the present appellant and her husband Manubhai Muljibhai Kapadia were staying at Block No. 590/3735 of Gujarat Housing Board Colony, Bapunagar, Ahmedabad. The brother of Manubhai Muljibhai Kapadia was also staying in the said house along with his wife Daxaben. As per the prosecution case, there was an inter se dispute between the two families regarding the ownership of the house in which they were staying, which has resulted into a quarrel on 21.9.2004, between the present appellant and her sister-in-law-Daxaben and, therefore, the present appellant went into the house where Daxaben was in the kitchen, poured kerosene on her and set her to fire. This was done by her with the help of her husband and, therefore, both of them were charged with murder of Daxaben and subjecting her to cruelty.
2.2 An FIR in this context was lodged with Bapunagar Police Station by the deceased after she was taken to the hospital. On the basis of the complaint, an offence was registered, investigated and charge sheet was filed in the court of Metropolitan Magistrate, Ahmedabad, who, in turn, committed the case to the City Sessions Court, Ahmedabad and Sessions Case No. 119 of 2005 came to be registered.
2.3 Charges were framed against the accused persons at Exhibit-1 for the offences punishable under Sections 498-A, 302 and 114 of the Indian Penal Code, to which, both pleaded not guilty and claimed to be tried.
2.4 The Trial Court after considering the evidence led by the prosecution, acquitted the original accused No. 2–Manubhai Muljibhai Kapadia and convicted the present appellant for the offence of murder of Daxaben Hasumukhbhai and sentenced her, as aforesaid. Hence, the present Appeal.
3 As per the prosecution case, the accused persons, deceased and her husband were staying in the house. There was a dispute between them about the ownership of the said house and, therefore, original accused No.1 i.e. present appellant, poured kerosene on Daxaben and set her to fire at about 9.45 a.m. on 21.9.2004, however, that facts go, as the victim was taken to the hospital by the present appellant herself. The victim initially gave the history of having suffered accidental burns while boiling milk. The same was entered into the case papers of the Doctor concerned, however, later on, the victim, while she was being treated clinically, told the Doctor that she had given a wrong history at the behest of her sister-in-law i.e. the present appellant whereas, in fact, her sister-in-law had set her to fire after pouring kerosene on her because of the dispute regarding the property. The Doctor, therefore, appears to have made necessary changes in the history recorded by him in the medical case papers. It also transpires that the police was informed telephonically by the Constable, who was on hospital duty, where he has stated that the deceased had suffered burns somehow by pouring of kerosene.
3.1 Later on, the police arrived at the hospital and recorded the FIR of the victim where the victim has implicated the present appellant and has alleged that she poured kerosene on her and set her to fire. The victim had suffered 98% burns and succumbed to the same within hours of the incident. She died at 1.30 p.m. in the afternoon on the very day while she was under treatment.
4 It is also the case of the prosecution that the deceased made an oral dying declaration before her husband involving the present appellant.
5 The case of the appellant is that she is innocent and is falsely implicated and, therefore, the conviction is ill-founded and be set aside.
6 Advancing the cause of the appellant, learned Advocate Mr. Mahendra K Patel submitted that it is a case of false implication. To support his version, he firstly highlighted the conduct of the appellant. Mr. Patel submitted that, admittedly, even, as per the case of the prosecution case, it is the appellant, who took the victim to the hospital. If the appellant wanted the victim to die, she would not have taken her to the hospital. Mr. Patel submitted further that if the evidence of the prosecution witnesses is seen, there was never any dispute, any quarrel or any altercation between the appellant and the victim prior to the present incident. Mr. Patel, therefore, submitted that if there was no dispute regarding the property nor was there any quarrel, then, there was no question of the appellant taking such an extreme step of murdering the victim. Mr. Patel also submitted that murdering the victim could not have resolved the dispute since the sharers are the husbands of the appellant and the victim and, therefore, the alleged act, would not have yielded any result, for which it is alleged to have been committed.
6.1 Mr. Patel submitted further that the truth has come out when the victim gave the history to the Doctor first, where she has said that she suffered accidental burns, which was even reduced to writing by the Doctor, but, for whatever reasons, the story is changed, raising doubts about the true version of the incident. Here, an attempt is made to involve the appellant's husband as well. Mr. Patel submitted that, if, the medical case papers are seen, it reveals that, though, the patient was conscious at the time of examination, immediately after recording of history, her pulses were not palpable and the blood pressure was not readable. She had suffered 98% burns and died within an hour of the incident even before the Executive Magistrate could reach. It was, therefore, submitted that whether the victim, who was in such a physical condition, could have given a detailed FIR, as is purported to have been given by her, is a matter of doubt. Mr. Patel submitted that the whole of the prosecution case smacks of doubt, doubt and doubt, benefit of which ought to have been given by the Trial Court to the appellant. Mr. Patel, therefore, submitted that the appeal may be allowed and the conviction and sentence may be set aside and the appellant may be acquitted from the charges levelled against her and she may be set at liberty forthwith.
7 On the other hand, learned APP Mr. K.L. Pandya, has opposed this appeal. According to him, the evidence of the Police Officer – Kalubhai, who recorded the FIR, is relevant. He has, in turn, stated that the victim was fit to give her statement/FIR, which is recorded by him after obtaining the opinion of the Doctor and even obtaining the certificate of the Doctor on the FIR and, therefore, there is no reason to disbelieve the said FIR. Mr. Pandya submitted further that the Doctor is an independent person, who has no axe to grind any of the parties and had, therefore, no reason to alter the history recorded by him earlier when the same having been changed by the victim. If that be so, there are two dying declarations, which are contemporaneous in nature, besides the oral dying declaration before the husband of the victim, who pointed out the guilt of the appellant and, therefore, the Trial Court is justified in convicting the appellant, the present appeal, therefore, be dismissed.
8 We have examined the record and proceedings in the context of rival submissions. At the outset, we may record that, normally, conduct of a miscreant would be to make sure that his or her act yields the result, intended to be obtained by that act. Here, if the intention of the appellant was to cause death of the victim, she would have made sure that the victim dies at the spot, but, instead of that, the appellant herself rushes the victim to the hospital immediately so that she gets proper treatment. Therefore, the conduct of the appellant subsequent to the incident, does not fit into the prosecution case.
9 The motive, which is attributed, is also relevant to be noted. The motive alleged is that there was a dispute between two brothers about the property, and in that context, the two ladies i.e. sister-in-laws quarreled and the present appellant caused death of the victim –Daxaben by pouring kerosene on her and set her to fire. In this context, as rightly pointed out by the learned Advocate Mr. Patel for the appellant that, the act of causing death of Daxaben, would not have yielded a result desired by the appellant. As per the prosecution case, for the reasons that, the victim was not one of the sharers of the house and the dispute of ownership of the property was between two brothers and not their respective spouses and, therefore, the motive alleged also does not seem to have been genuine.
10 Another aspect that requires consideration is that, as per the admission of Hasmukhbhai Muljibhai Kapadia, PW-4, Exhibit-23, there were never any quarrels, disputes or altercations between the victim and the appellant on any count, leaving aside the ownership of the property, which is, in fact, between the two brothers. It is, therefore, very difficult for us to accept the prosecution theory that it was because of the property dispute, the appellant had attacked the deceased, poured kerosene on her and set her to fire.
11 With the above background, if the actual facts are seen, what transpires is that, the deceased gave three dying declarations. One is an oral dying declaration before her husband; the second is in the form of an FIR recorded by the police and the third is in the form dying declaration before the Doctor giving history as to what had happened. In this context, the first in point of time is the history given to the Doctor, where she initially stated that she suffered burn injuries while boiling milk. She had suffered 98% burns and immediately she was taken to the hospital, where she gave the history before the Doctor. Thereafter, she was being clinically treated by the Doctor, where it was alleged that she had earlier given an incorrect history at the instance of the appellant wherein, in fact, she was set to fire by the appellant after pouring kerosene on her. The Doctor therefore in term changes the entries made in the medical case papers, but fails to put his initials at the places where the changes were made. The oral dying declaration before the husband is deposed by the victim-Daxaben.
11.1 At a later point of time, when the police recorded her FIR, she gave the history implicating the appellant in a detailed manner, as can be seen from the said FIR at Exhibit-37. She, however, died before the Executive Magistrate, who could reach the hospital to record her statement.
11.2 To examine the veracity of the above aspect, there are certain relevant factors, which need to be recorded. The first is the panchnama of scene of offence, which shows that, there are 98% burns on her body including her thumbs. When she was brought to the hospital within hours of the incident, i.e. 1.30 p.m. in the afternoon, her condition was serious. Her pulses were not palpable and blood pressure was not readable. She succumbed to the injuries. We feel, it is extremely difficult for us to refer to and rely on such a detailed dying declaration in the form of an FIR, which runs contrary to the first history given by the patient to the Doctor.
11.3 It is also worth to note that from the evidence of Dr.
Pravinkumar Kantilal Patel, PW-6, Exhibit-29, it is clear that the deceased was short of breath when she was brought to the hospital till she dies and, therefore the oxygen mask was deployed to assist her respiratory system. We doubt, if, the deceased could have given either the FIR to the police or an oral dying declaration before her husband with her mask in a critical physical condition when the pulses being absent and blood pressure being not readable.
12 It is also difficult for us to accept the version of the husband about the oral dying declaration given to him by the victim implicating the appellant for the reason that, in past, there had not been any dispute or quarrel between the victim-Daxaben and the appellant Manjulaben for the alleged motive i.e. property. It is nobody's case that there was a high profile of quarrel between the two before the incident.
13 The prosecution story is taken as a whole, it becomes doubtful when it takes a `U' turn the original history given by the victim to the Doctor changing the episode from one being an accident to one being murder.
14 Though, in isolation, it may not be so significant, but, considering in light of the foregoing discussion, if, we peruse the scene of panchnama, we noticed that, the plastic container of kerosene was found to be lying in an orderly condition with the lid being tightly closed. If the incident had occurred in the manner as canvassed by the prosecution i.e. a quarrel, followed by the appellant pouring kerosene on the victim, and then set her to fire, normally, the conduct would have been to put the plastic container aside or to throwaway the container and not to put the same in an orderly manner with the lid tightly closed.
15 Foregoing discussion raises a serious doubt about the prosecution theory and the conviction recorded by the Trial Court cannot be upheld. The benefit of doubt has to go to the accused which ought to have been made available to the appellant by the Trial Court. In our view, the Appeal is required to be allowed and the appellant- accused is required to be acquitted from the charges levelled against her.
16 In the result, the appeal succeeds and is allowed. The impugned judgment and order dated 1.3.2006 rendered in Sessions Case No.119 of 2005, by the Additional Sessions Judge, Fast Track Court No.3, City Sessions Court, Ahmedabad, recording the conviction of the appellant and the sentence awarded to her is set aside and appellant–accused Manjulaben, W/o Manubhai Muljibhai Kapadia is acquitted of the charges levelled against her. The appellant–accused is in jail. She shall be set at liberty forthwith if not required to be detained in connection with any other offence. Fine, if any, paid shall be refunded to her.
(A.L. DAVE, J.) (A.J. DESAI, J.) pnnair