(Per : HONOURABLE MR.JUSTICE PARESH UPADHYAY) 1. This appeal is directed against the judgment and order rendered by learned City Sessions Judge, Court No.2, Ahmedabad, dated 02.09.2003 in Sessions Case No.121 of 2002, whereby the sole accused, the appellant is convicted for offences punishable under Sections 302, 498A and 294(b) of the Indian Penal Code and is sentenced as under:
(i) For offence under under Section 302 of IPC, he is sentenced to Rigorous Imprisonment for life, fine of Rs.2,000/ and in default Rigorous Imprisonment for six months;
(ii) For offence under Section 498A, Rigorous Imprisonment for two years, fine of Rs.1,000/ and default sentence of Rigorous Imprisonment for six months;
(iii) For offence under Section 294(b) of IPC, Rigorous Imprisonment for two months, fine of Rs.500/ and in default RI for 15 days.
The accused was held to be entitled to setoff for the period he remained in custody before the pronouncement of judgment and it was also ordered that all sentences shall run concurrently. It is against this judgment and order, the original accused has filed this appeal.
2. At the outset, it needs to be recorded that, this appeal was considered and decided by this Court on earlier occasion and conviction and sentence recorded by the trial Court was upheld by the judgment and order of this Court dated 24.08.2009, which was challenged before Hon'ble Apex Court, and by the judgment and order of the Hon'ble Apex Court dated 05.12.2001 in Criminal Appeal No.2255 of 2011 (converted from SLP (Cri.) No.6546 of 2011), the judgment and order of this Court dated 24.08.2009, for the reasons recorded in the judgment dated 05.12.2011, was set aside and the matter was remanded to this Court for fresh consideration. It is under these circumstances that this appeal is considered afresh on merits by this Court.
3. We have heard Mr. Pratik Barot, learned counsel for the appellant and Mr. K. L.Pandya, learned Additional Public Prosecutor for State.
4. Learned counsel for the appellant has mainly contended that the case rests on circumstantial evidence, since there is no eye witness to the incident, and there are more than one Dying Declarations and all the Dying Declarations are inconsistent with each other so far the cause of incident and role attributable to the appellant is concerned. In the submission of learned counsel for the appellant, it is also not proved that the appellant was in the house when the offence took place. It is contended that there is also an evidence to the effect that the deceased had committed suicide and when there are two theories, the one which is in favour of the accused, be accepted by the Court.
5. On the other hand, learned Additional Public Prosecutor Mr.Pandya has contended that as such there is no inconsistency, in any of the Dying Declarations and in substance, so far the role of the appellant is concerned, it is the appellant only who set the victim on fire. It is also contended that the First Information Report was given by the victim herself. The officer who had recorded the First Information Report is examined, the Dying Declaration was recorded by Executive Magistrate who is also examined, and if these evidences are looked at collectively, the prosecution has proved beyond reasonable doubt the commission of offence by the appellant. In the submission of learned Additional Public Prosecutor Mr.Pandya, the trial Court has, based on these evidences, rightly recorded the conviction and awarded the sentence, as referred above, and this Court may not interfere in the same.
6. We have examined the Record and Proceedings in the context of rival submissions.
7.1 Having gone through the record, we find that on 05.03.2002 when the appellant and victim (Manjuben @ Shobhanben) were at home, at about 1:30 noon, the appellant wanted to go out of home to take part in the riots, which was going on in the city at that time, to which the victim said 'no' and angered with this, the appellant abused her, gave her fist blows, poured kerosene on her and set her on fire.
7.2 It is on record that the appellant himself took the victim, first to Shardaben Hospital. He informed the Doctor present there that since the appellant had scolded the victim, she herself had poured kerosene and she attempted suicide. The appellant, after admitting the victim there, fled away. Based on this information, the doctor present there, informed police, based on which the Vardhi to that effect was given and that is how the entry came to be registered with Odhav police station.
7.3 The father of the victim Laxmanbhai Pattni (Exh.10, PW:1) came to hospital and shifted the victim from Shardaben Hospital to Civil Hospital on 06.03.2005.
7.4 On 06.03.2005 the victim herself gave First Information from Civil Hospital, which is on record at Exh.13. In the said FIR, she narrated the incident in detail and stated that the appellant and the victim had married against the wish of parents of the victim, the victim was pregnant by about seven months, the appellant since about one year from the date of incident was finding faults on trivial things with the victim and used to torture the victim, including the physical torture. On 05.03.2002, at about 1:30 noon, when the victim was doing her household work, the husband (the appellant) wanted to go out of house to participate in the riots which was going on at the relevant time in the city, to which the victim had objected and that angered the appellant, he started giving abuses, fist blows. He then poured kerosene on the victim and set her on fire. She started shouting, she fell down, thereafter she was taken to Shardaben Hospital where she was not conscious. Thereafter she found her parents in the hospital and they took her from Shardaben Hospital to Civil Hospital and thereafter she had given the said FIR to police. The said FIR has come on record through the evidence of Punambhai L. Parmar (PW:3, Exh.12). As per his evidence, at the relevant time, he was working as PSI with Odhav Police Station and on the instructions of PI Mr.Kansara, he had gone to Civil Hospital, he had inquired and had recorded the FIR as aforesaid. He has stood by this aspect even in his cross examination.
8. Based on the said FIR, offence was registered by Odhav Police Station being IC.R.No. 83 of 2002. The same was investigated. The accused was arrested, chargesheet was filed in the Court of Metropolitan Magistrate, Ahmedabad and the case was committed to Court of Sessions and it was registered as Sessions Case No.121 of 2002. Charge was framed against the accused by Exh.1 which the accused denied and he was put to trial. During the trial, prosecution relied on 12 prosecution witnesses, the details of which are as under:
The prosecution had relied on the following documentary evidences.
Some of the important evidences are discussed in this judgment.
9. The victim was treated at Civil Hospital and she died on 15.03.2012 at about 20:30 hours. Her postmortem was conducted and the cause of death as recorded in the PM report is “shock and sapticamia after extensive burns'. The said postmortem report has come on record through the evidence of Dr. Vikram Parghi (PW:7, Exh.24) and the deceased having died of this cause is proved by his evidence.
10. Other important prosecution evidence is Dying Declaration recorded by the Executive Magistrate Mr. Vishnubhai Dhanjibhai Prajapati (Exh.26, PW:8). The said Dying Declaration (Ex.27) is recorded in the questionanswer form. The said Dying Declaration also carries the endorsement of the doctor about the consciousness of the victim. The said Dying Declaration contains the say of the victim as under:
(a) The victim gave information with regard to her name, the name of her husband (the appellant), her age, address, span of marriage life, she and her husband staying together and specific time of occurrence i.e. 05.03.2002, at about 1:30 noon, at her own house.
(b) She, in the said Dying Declaration also stated that she was wearing polyester gown at the relevant time. She described the incident by saying that yesterday (Dying Declaration was recorded on 06.03.2012) the husband of the victim wanted to go out of house to participate in the riots which was objected by the victim. Therefore, the appellant got angry, he poured kerosene on her and set her on fire. She specifically stated that it is the husband alone who is responsible for this.
(c) She further replied that her husband used to beat her and was torturing her. She was specifically asked whether she tried to commit suicide, to which she said no and she further stated that it is her husband who had set her on fire. She did not want to add anything to the said statement.
This Dying Declaration, as stated above, was taken by executive magistrate Mr.V. D. Prajapati (Exh.26, PW:8). The endorsement of the Doctor about consciousness of the victim is also reflected on the Dying Declaration itself. The Executive Magistrate, in his evidence, stated that he had received Yaadi from City Mamlatdar, based on which he had gone to Civil Hospital to take Dying Declaration. He had initially inquired from nurse in charge. He, in his evidence specifically deposed to the effect that the relatives present there were asked to go outside. Thereafter by putting certain questions to the victim, he ascertained that the victim was conscious and was in a state of mind to understand the question and reply to it properly. Thereafter he had recorded Dying Declaration. He had, on the Dying Declaration, taken endorsement of the Doctor present there that the patient was conscious. The said endorsement is duly reflected on the Dying Declaration itself. He denied, in the cross examination, suggestion that he had prepared it in advance. He has, in effect, stood the test of cross examination and the contents of the Dying Declaration is duly proved by his evidence.
11. The evidence of father of victim, Laxmanbhai Fuljibhai Patni (Exh.10, PW:1) is on record. He, in his deposition, stated that the victim was his daughter. She married with the appellant. It was against the wish of the parents. They did not have relations thereafter. He was informed by one Rajubhai that his daughter had sustained burn injuries. Thereafter he had gone to Shardaben Hospital. There the daughter of this witness said that she may be shifted to Civil Hospital. Therefore they had taken her to civil hospital. When she regained proper consciousness, she explained to this witness that, since about one year, the appellant was harassing the victim. He was asking the victim to go back to her parents' house and if she would not go, she will be burnt alive. The daughter of this witness, the victim was pregnant by about eight months, as per evidence of this witness. She had told this witness that the appellant was torturing her and it is he, who had set her on fire. In the crossexamination, this witness has conceded that they did not have any relation after the marriage, however so far the incident in question is concerned, this witness, going to Shardaben hospital and thereafter the victim being taken to civil hospital and the victim narrating the entire incident to him, is confirmed by this witness and no material contradiction is noticed so far the say of this witness with regard to the offence is concerned.
12. The sister of the victim Parulben Laxmanbhai Patni (PW:2) is examined on Exh.11. She, in her evidence, stated that the victim had described her that incident had taken place on 05.03.2002. She was taken to Shardaben hospital. From Shardaben hospital, the appellant had gone pretending to go to take medicines, but he did not come back. The victim was taken to Civil Hospital next day. This witness had specifically asked the victim as to what had happened and she replied saying that since her husband (the appellant) was not doing any work, they had altercation and she was beaten and thereafter the victim was set on fire by the appellant. In the cross examination, she stated that the victim had informed her that they (victim and her husband, the appellant) had quarrel and therefore she was set on fire.
13. Mainly on the strength above referred evidences, the Court below has recorded conviction and ordered sentence.
14. Learned counsel for the appellant has contended that there is a theory of suicide also on record and thus there are two theories, one of murder by the appellant and second of suicide by the victim and therefore the benefit should be given to the appellant. To substantiate this argument, learned counsel for the appellant has mainly relied on document (Exh.29). The said document is the Vardhi given by constable Rameshbhai from Shardaben Hospital on the basis of information given by doctor at Shardaben hospital. The next is Exh.31 which is recorded by PSO of Odhav Police Station, which in substance is consequential to Exh.29. In this regard it needs to be recorded that learned counsel for the appellant is right in contending that these two documents can be read to reveal that the victim had herself set her on fire. However, if the genesis of these two entries are looked at, they are from Shardaben Hospital where the appellant himself had taken the victim, the victim was not in a position to give history to the doctor and it is the appellant who informed the doctor that the victim had set herself on fire. If this is seen with the further statement of the appellant, it is his case before the trial court that it is he who had taken the victim to the Shardaben hospital and it was he alone, at the hospital. Since the victim was not in a position to give any history it is the appellant alone who had given information to the doctor there that it is the victim herself who had set her on fire and based on that information, contents of Exhs.29 and 31 came to be recorded. On the other hand, the say of victim herself is on record in the form of Dying Declaration given to the Executive Magistrate. The oral Dying Declarations to the father and the sister of the victim are also on the same line as was given to the Executive Magistrate. Even FIR was also given by the victim herself, which is also on the same lines. Thus, on the face of all these documents we are unable to accept the contention of learned counsel for the appellant that there are two theories on record, one of suicide and second of murder. At the best this can be seen as two sets of evidence, one which is direct evidence given by victim herself and second is one sought to be created by accused himself.
15. Learned counsel for the appellant has also relied upon judgment of the Hon'ble Supreme Court of India in Sayaji Hanmat Bankar vs. State of Maharashtra [AIR 2011 SC 3172] to contend that the case in hand be treated as offence punishable under Section 304 and not under Section 302, IPC. In this regard it need to be recorded that so far as that judgment is concerned, there the accused had tried to douse the fire and he had also sustained burn injuries. However, in the present case, not only the accused had not tried to douse the fire, which he had put on, he even did not remain with the wife in the hospital and had fled away. Further if the facts of the said case are seen, there the accused had come in drunken condition and there was a quarrel and the victim was set on fire who was wearing nylon sari. In the present case the victim was wearing nylon gown, would not be the ground to attract the applicability of the said judgment. Further, in the present case, the evidence of father, sister and victim herself, in the form of her complaint and dying declaration is to the effect that the husband was torturing her since at least one year and she was pregnant by eight months, and for telling the husband not to go to participate in the riots which were going on, he got angry and set her on fire. In this set of circumstances, in our view, the contention of learned counsel for the appellant that the case would attract conviction under Section 304, IPC, cannot be accepted and the judgement relied will not help the appellant.
16. In our view, there are no two theories on record. There is only one theory and only one prosecution case and is of murder of victim by the appellant and as discussed above, there is sufficient legally acceptable and dependable evidence on record to bring home the charge against the accused. In our view, no error can be said to have been committed by the trial court in convicting the appellant, for having committed offences punishable under Sections 302, 498A and 294(b) of IPC.
17. The appeal does not have any force, it is required to be dismissed and the same is accordingly dismissed.
(A. L. Dave, J.) amit (Paresh Upadhyay, J.)