(Per : HONOURABLE MR.JUSTICE A.L.DAVE) 1. This appeal is preferred to challenge judgment and order rendered by Sessions Court, Kutch – Bhuj on 24.03.2006 in Sessions Case No.31 of 2005. The appellants were accused before the Sessions Court and were charged for the offences punishable under Section 302 read with Section 114 and Section 504 read with Section 114 of Indian Penal Code. They were found guilty of the said offences and were convicted for the offence of murder. They are sentenced to imprisonment for life and to pay a fine of Rs.3,000/ each, in default, to undergo simple imprisonment for three months, for the offence punishable under Section 504 read with Section 114 of IPC, they are sentenced for simple imprisonment for three months and fine of Rs.500/ each, in default, to undergo simple imprisonment for one month. All sentences were ordered to run concurrently and they were all accorded benefit of set off.
2. Brief facts of the case are that the accused – appellant No.1 Shivji Vachhiya Maheshwari and accused – appellant No.3 Hasbai Ravji Laxman are brother and sister, whereas accused – appellant No.2 Devalbai Shivji Vachhiya is wife of accused No.1. Accused No.1 has a brother whose name is Premji Vachhiya Maheshwari who was married to Damiyantiben.
2.1 Premji Vachhiya Maheshwari and his wife Damiyantiben were stayed at Village Mota Reha. The appellants also stayed at Mota Reha but in separate houses. As per the prosecution case, on 07.06.2005, at about 7:00 a.m. Damiyantiben, wife of Premji Vachhiya Maheshwari was cooking in her house when the three appellants went there and abused her and they set her to fire after pouring kerosene. As a result of which, Damiyantiben suffered 85% burns. After setting her to fire, the three appellants ran away. Hearing her shouts, her husband came so also neighbouring people. The fire was extinguished and the victim was taken to the hospital. History to Police Constable posted at the hospital was given by the husband of the victim and thereafter the constable informed the Bhuj Taluka Police Station. He also informed the Executive Magistrate requesting him to record dying declaration of the victim. Upon arrival of the Executive Magistrate, a Yadi was given to him by the police. The Executive Magistrate got verified the condition of the victim through the doctor and the doctor certified that she was conscious and was able to speak. Thereupon a dying declaration was recorded by the Executive Magistrate. After departure of the Executive Magistrate, police arrived and recorded FIR of the victim. The FIR was given by the deceased with little more details. On basis of that FIR, offence was registered and investigated, and having ultimately found the material to be sufficient to connect the accused with the crime police filed chargesheet in the Court of learned Chief Judicial Magistrate, Bhuj, who in turn committed the case to the Court of Sessions and Sessions Case No. 31 of 2005 came to be registered.
2.2 Charge was framed against the accused at Exh.1 to which they pleaded not guilty and came to be tried. The trial court, after examining the evidence, found them guilty and sentenced them as stated hereinabove and hence this Appeal.
3. Learned advocate Mr.K.B.Anandjiwala submitted that the case mainly depends on the dying declarations given by the victim. The first in point of time is dying declaration before Executive Magistrate. The second is in form of FIR. Mr.Anandjiwala submitted that these two dying declarations are inconsistent with each other and, therefore, conviction could not have been recorded on that basis.
3.1 Mr.Anandjiwala submitted further that the incident has occurred in the house of Premji Vachhiya Maheshwari, husband of the victim, who was also present in the house.
He is the person who took the deceased to the hospital and gave history to the Police Constable who was on duty there. The history given to the Police Constable is totally different than what is stated in the dying declarations before the Executive Magistrate as well as the Police Officer who recorded the complaint given by deceased. The prosecution has failed to examine Premji Vachhiya Maheshwari and or the neighbours who were arrived at the place of the incident soon after the incident. These are the persons who could have thrown some more light on the situation that existed soon after the occurrence. The prosecution having failed to bring such an important piece of evidence on record, the benefit of doubt ought to have been given to the accused by the trial court.
3.2 Learned advocate Mr.Anandjiwala submitted further that the accusedappellants have no motive against the victim to cause her death and therefore also they could not have been convicted.
3.3 Mr.Anandjiwala submitted further that, if the panchnama of the place of the scene of offence is seen, there are no marks spilling of kerosene anywhere. If the kerosene is poured on the victim by the accused as is alleged, there would have been some spilling of kerosene on the ground which would have been noticed, and in absence of that, the theory canvassed by the victim in her dying declaration cannot be accepted, and on such inconsistent dying declarations the conviction could not have been recorded by the trial court. The trial court has thus committed error and therefore appeal may be allowed. Learned advocate Mr.Anandjiwala placed reliance certain judicial pronouncements to support his argument that will be dealt with in the paragraphs to follow.
4. Learned APP Mr.L.B.Dabhi submitted that he does not dispute the proposition of law that, if the dying declarations are inconsistent, then on sole basis of such dying declarations conviction cannot be recorded. But, according to him, there are no inconsistency between the dying declarations made by the victim before the Executive Magistrate and dying declaration in the form of FIR recorded by the police. Although, the language is different, the substance is the same. An FIR gives a little more details on occurrence.
4.1 Mr.Dabhi submitted that the prosecution is not bound to examine all the witnesses whose statements are recorded.
Nonexamination of Premji Vachhiya Maheshwari would not make any difference because he being the brother of accused – appellants No.1 and 3, and brotherinlaw of accused No.2, has given twisted version before the doctor from the beginning realising that his wife having suffered burns all over the body (85%), there are little chances of her survival.
4.2 Learned APP Mr.Dabhi submitted further that the history which is given to the Police Constable at the hospital is certainly inconsistent with the FIR and the dying declaration, and speaks about accidental burns having been suffered by the victim. But, if the panchnama of the place of the incident is seen, it is clear that the deceased was cooking on traditional earthen stove (chula) and not a kerosene stove and there are chances of accidental burns. Mr.Dabhi submitted that now if it is found that she was cooking on a chula, how comes that the clothes of the victim were found to carry carbon particles on them by the FSL. Differently put, how does the kerosene come on the clothes is a question and, therefore, the history which is given by the deceased of the husband is inconsistent.
4.3 Learned APP relied on several judicial pronouncements to support his case. According to him, if there is no inconsistency in the dying declarations, then conviction can be founded solely on the basis of dying declarations, and a person likely to die in near future is less likely to lie. The trial court considered all relevant aspects and recorded conviction and, therefore, this Court may not exercise its appellate jurisdiction, the appeal may be dismissed.
5. Undisputedly, the prosecution case relies mainly on the dying declaration as there is no eyewitness to the incident. The first dying declaration was recorded by Executive Magistrate Mr.Parmar, who came to the place on being summoned telephonically by the constable of the duty at the hospital, and who was then served a Yadi. The Yadi to the Executive Magistrate Exh.22 if seen, would indicate that the PSO, Bhuj indicated that the deceased has been brought to G.K.General Hospital in burns ward upon her sustained burns while cooking and a request was made to record her dying declaration. That Yadi contains a certificate issued by the doctor in form of an endorsement that the patient was conscious and can talk. This endorsement was made at 11:00 a.m. The Executive Magistrate arrived at G.K.General Hospital at about 13:20 hours on 7.6.2005. He again brought to the doctor and the doctor put an endorsement on the dying declaration Exh.23 that the patient was fully conscious and is competent to give dying declaration and thereafter the dying declaration is recorded. It was recorded from 13:20 hours to 13:45 hours. In the said dying declaration, it was stated that the deceased suffered burns at 7:00 a.m. However, her brotherinlaw Shivji Vachhiya Maheshwari (A1), her sisterinlaw Devalbai Shivji Vachhiya (A2), and her sisterinlaw Hasbai Ravji Laxman (A3) came to her house, poured kerosene, set her to fire and ran away. It is also stated that they stayed away from her which is at a little distance. Earlier they had taken away some rice and a watch about which there was some dispute was going on interse, and according to victim, the incident occurred only on such a petty issue. The victim stated further that she was married about 8 years prior to the incident. Then she give details about her children and her in laws. The thumb impression of the deceased was taken by the Executive Magistrate and certified.
6. The second dying declaration is in form of FIR which is at Exh.16. This FIR is recorded by ASI Dalsingh P.Kanani. In this dying declaration the deceased stated that the incident occurred at 7:00 o'clock. Her fatherinlaw gone out of town, her motherinlaw gone to attends nature call in the open court yard and her husband was sleeping in the room so also her daughter Savita and she was preparing Roti on the chula. At that time her brotherinlaw Shivji Vachhiya Maheshwari came into kitchen and gave her abuses and they also intimated her. In the meantime, her sisterinlaw Devalbai came along with sisterinlaw Hasbai. After coming the two ladies instigated Shivji Vachhiya by saying that, “we do not want, burn her”. Thereupon the accused No.1Shivji Vachhiya sprinkled kerosene on Damiyantiben which was lying in the kitchen. Then she started crying, and at that point of time, the accused No.1 (A1) took a bottle containing kerosene from the wall which was hanging and poured kerosene on her chest, hands and other parts of the body and put the bottle aside. While she tried to get up, the accused No.1 (A1) threw a burning match on her. Her clothes also got burnt. When the victim raised shouts, they ran away from the house, people came to her rescue. She states further that all the three accused persons then escaped.
7. If we examine these two dying declarations of the victim, we do not find any inconsistency in the role attributed to the accused persons. In both the dying declarations, the declarant involves all the three accused. In FIR Exh.16 the declarant only gives some more accurate details about the incident, otherwise arrival of all the three accused persons at the relevant time and their active participation and involvement in the assailant upon the deceased are to be found in both the dying declarations. If there is no inconsistency then it cannot be said that simply because a mere detailed role is attributed to the accused persons in the second dying declaration, namely, the FIR which is not given in the dying declaration before the Executive Magistrate, there is inconsistency. In fact, in the dying declaration before the Executive Magistrate also the deceased has indicated the participation of all the three accused.
8. At one stage it was also argued that the dying declaration contains thumb impression of the deceased, whereas she had suffered 85% burns, and the doctor has stated that her whole body was burnt, therefore, there could not have been thumb impression of the deceased on the dying declaration. It is true that the doctor has admitted that the hands were burnt, but that deposition is given on his memory, whereas contemporaneous record in form of medical case papers Exh.34 if seen, would indicate that whole body except face, above neck and lateral part of right hand, both palms were not burnt. Therefore this contention on behalf of the appellants cannot be accepted. Similarly, the dying declarations recorded by the Executive Magistrate is after obtaining medical certificate about the health of the victim where the doctor in terms stated that the victim was fully conscious and was competent to give dying declaration. It was argued that the general condition of the deceased was recorded to be poor. It is true that the medical case papers speak about the general condition of the deceased but that does not mean that the patient was not conscious and incompetent to give dying declaration particularly when the doctor has examined the patient at the relevant time with clear object of examining her capacity of giving dying declaration and has found her to be fit.
9. In light of above, we do not find that there is any inconsistency in the dying declarations. The judgments relied upon by learned advocate Mr.Anandjiwala would go to show that if there is inconsistency in the dying declaration, the Court will have to give a closer look to the evidence and then come to the conclusion that the dying declaration cannot be used for recording conviction. That cannot be any dispute on this principle. But, as stated hereinabove, there is no inconsistency, there is no chance of declarant that not being fit and there is no reason to doubt an independent Government Officer of the Rank of the Executive Magistrate before whom the dying declaration is given nor any reason to doubt in the FIR recorded by the police as it is not inconsistent with the dying declarations. Thus, we have no reason but to accept the dying declarations as they stand involving all the accused persons.
10. For the foregoing reasons, we do not find any merits in the appeal. The appeal must fail and stands dismissed. The appellants accused No.2 and 3 are indicated to be on bail. Hence, their bail bonds stand cancelled. They shall surrender to the jail authority within six weeks from today.
( A.L. DAVE, J. ) ( A.J. DESAI, J. ) syed/