Dismissed

Dashrathbhai Mohanbhai Rathod v. State of Gujarat

Gujarat HC4 Feb 2014CR.A/1735/2008

Case brief

AI extract

What is this about?

Conviction appeal against a sessions court judgment finding the appellant guilty of murder and house trespass for setting a widow on fire after she refused his sexual demand. The court rejected challenges to the two dying declarations and to the omission to name the assailant before the treating doctor, held the deceased's statements before relatives admissible as res gestae, and dismissed the app

What the court decided

AI extract

Dashrathbhai Mohanbhai Rathod Vs State of Gujarat — Murder and Culpable Homicide | Gujarat HC (2014)

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R/CR.A/1735/2008 CAV JUDGEMENT

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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

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CRIMINAL APPEAL NO. 1735 of 2008

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FOR APPROVAL AND SIGNATURE:

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HONOURABLE THE CHIEF JUSTICE MR. BHASKAR BHATTACHARYA

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and HONOURABLE MR.JUSTICE J.B.PARDIWALA

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1 Whether Reporters of Local Papers may be allowed to see the judgment ?

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2 To be referred to the Reporter or not ?

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3 Whether their Lordships wish to see the fair copy of the judgment ?

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4 Whether this case involves a substantial question of law as to the interpretation of the Constitution of India, 1950 or any order made thereunder ?

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5 Whether it is to be circulated to the civil judge ?

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DASHRATHBHAI MOHANBHAI RATHOD....Appellant(s)

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Versus

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STATE OF GUJARAT....Opponent(s)/Respondent(s)

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Appearance:

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MR HM PARIKH, ADVOCATE for the Appellant(s) No. 1

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MS CHETANA M.SHAH, APP for the Opponent(s)/Respondent(s) No. 1

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CORAM: HONOURABLE THE CHIEF JUSTICE MR. BHASKAR BHATTACHARYA

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and

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HONOURABLE MR.JUSTICE J.B.PARDIWALA

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R/CR.A/1735/2008 CAV JUDGEMENT

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Date : 04/02/2014

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CAV JUDGEMENT

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(PER : HONOURABLE MR.JUSTICE J.B.PARDIWALA)

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The present Appeal is at the instance of a convictaccused for the offences punishable under Sections 302 and 452 of the Indian Penal Code, and is directed against an order of conviction and sentence dated 15^th March 2008 passed by the learned Additional Sessions Judge, Fast Track Court No.6, Nadiad, in Sessions Case No.76 of 2007.

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By the aforesaid order, the learned Additional Sessions Judge found the appellant guilty of the offence punishable under Section 302 of the Indian Penal Code, and consequently, sentenced him to suffer life imprisonment with a fine of Rs.2,000=00 and in default of payment of fine, further rigorous imprisonment for a period of six months.

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The learned Additional Sessions Judge also found the appellant guilty of the offence punishable under Section 452 of the Indian Penal Code, but in view of the life imprisonment imposed, thought fit not to impose any sentence so far as the offence of Section 452 of the Indian Penal Code is concerned.

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Case of the Prosecution :

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On 3^rd April 2007 at around 12:15 a.m., the accused trespassed into the house of the deceased situated at village Antroli, Lalpura, and forced the deceased named Savitaben @ Munniben to have physical relations by catching hold of her hand. The demand of the accused was resisted by the deceased. In the process, the deceased is said to have given a bite on the hand of the accused, as a result, the accused got enraged. The accused, on getting enraged, picked up a container of kerosene which was lying in the house of the deceased and sprinkled the same on the body of the deceased. The accused thereafter ignited a matchstick and set the deceased on fire. The deceased suffered second to third degree burns on the body and was given preliminary treatment at the Kheda Civil Hospital and thereafter she was shifted to the V.S.Hospital at Ahmedabad, where she succumbed to her injuries on 13^th April 2007.

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The deceased herself lodged a First Information Report on 3^rd April 2007 Exh.36, inter alia , stating that she was a mother of two sons aged about 7 years and 3 years respectively. She further stated that the accused used to visit

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her house when her husband was alive since both were friends. After the demise of her husband, the accused used to visit the house of the deceased. She further stated that on the date of the incident, there was a religious function at the house of one Mansangbhai Gandabhai Rathod, residing in her neighbourhood. Her younger son had gone to watch the function of ‘Garba’ organized at the house of Mansanghbhai. She stated that her elder son had gone of to sleep. She stated that at that point of time at around 12:15 hours in the night, the accused came at her house and asked her to sleep with him. The deceased denied the same, as a result, the accused got enraged and caught hold of the deceased from her hand. She stated in the F.I.R. that no sooner the accused caught hold of her hand she gave a bite on the hand of the accused, as a result the accused got more enraged and sprinkled kerosene on her body from a container which was lying near the kitchen in the house of the deceased. She further stated that the accused thereafter ignited a matchstick and set her on fire, as a result her saree, blouse and petticoat got burnt. She further stated that on raising shouts, her brothers-in-law and other people residing in the neighbourhood came rushing at her house and extinguished the fire by throwing a quilt on her body. She has further stated that she sustained severe burn

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injuries and was taken to the Kheda Civil Hospital for treatment by her brothers-in-law and others. After receiving some treatment at the Kheda Civil Hospital, she was shifted to the V.S.Hospital at Ahmedabad in an ambulance.

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On the strength of the F.I.R. lodged by the deceased herself, the investigation commenced. The dying declaration of the deceased was recorded by the Executive Magistrate on 3^rd April 2007 itself. The deceased succumbed to her injuries on 13^th April 2007. The dead body of the deceased was sent for postmortem. The postmortem examination revealed that the deceased had sustained second and third degree burns on head and neck to the extent of 9%, right upper limb to the extent of 8%, left upper limb to the extent of 8%, chest anterior to the extent of 9%, chest posterior to the extent of 9%, abdomen anterior to the extent of 7%, abdomen posterior to the extent of 7%, right lower limb to the extent of 17% and left lower limb to the extent of 17%. The postmortem examination also revealed that the deceased had sustained 92% of burns all over the body. The cause of the death assigned after the postmortem examination was shock due to burn injuries and other complications. Inquest panchnama was drawn, scene of offence panchnama was also drawn.

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The accused was arrested on the next day i.e. on 4^th April 2007 and an arrest panchnama of the person of the accused was drawn in presence of the two panch witnesses Exh.18.

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The statements of various witnesses were recorded by the Investigating Officer. The clothes of the deceased, more particularly, the saree, blouse and the petticoat worn at the time of the incident were sent to the Forensic Science Laboratory. The serological test report revealed that there was presence of petroleum hydrocarbons on the muddamal article saree.

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Finally, a charge-sheet was filed against the accused in the Court of Judicial Magistrate, First Class, Matar. As the case was exclusively triable by the Sessions Court, the JMFC, Matar, committed the case to the Sessions Court under Section 209 of the Code of Criminal Procedure.

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The Sessions Court framed charge against the accused Exh.2 and the statement of the accused was recorded. The accused did not admit the charge and claimed to be tried.

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The prosecution adduced the following oral

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evidence in support of its case :

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(1) PW1 Dr.Girishbhai Manubhai Panchal - Exh.5 (Medical Officer who gave preliminary treatment at Kheda Civil Hospital)

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(2) PW2 Ramilaben Pravinbhai – Exh.7 (Inquest Panch Witness)

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(3) PW3 Jashwantsinh Manubhai – Exh.9 (Second Inquest Panch Witness)

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(4) PW4 Rajeshbhai Babubhai – Exh.10 (Panch Witness of the scene of offence)

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(5) PW5 Madhubhai Gotabhai – Exh.12 (Second Panch Witness of the scene of offence)

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(6) PW6 Ramanbhai Fatabhai – Exh.13 (Panch Witness of the clothes of the deceased)

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(7) PW7 Shanabhai Somabhai – Exh.16 (Second Panch Witness of the clothes of the deceased)

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(8) PW8 Bababhai Mangalbhai – Exh.17 (Panch Witness of the arrest panchnama of the accused)

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(9) PW9 Budhabhai Dahyabhai – Exh.19 (Second Panch Witness of the arrest panchnama of the accused)

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(10) PW10 Dr.Pratik Anilbhai Patel – Exh.20 (Medical Officer who performed the postmortem of the dead body of the deceased)

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(11) PW11 Baluji Ditaji – Exh.24 (Executive Magistrate who recorded the dying declaration of the deceased)

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(12) PW12 Vinubhai Chandubhai – Exh.27 (Brother-in-law of the deceased)

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(13) PW13 Dahiben Chandubhai – Exh.28 (Mother-in-law of the deceased)

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(14) PW14 Somabhai Dhulabhai – Exh.29 (Police Officer)

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(15) PW15 Manharbhai Kantibhai – Exh.30 (Circle Inspector)

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(16) PW16 Laxmanbhai Khimjibhai – Exh.35 (Investigating Officer)

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The following pieces of documentary evidence were adduced by the prosecution :

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(1) Medical Certificate of the preliminary treatment given to the deceased – Exh.6

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(2) Inquest Panchnama – Exh.8

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(3) Scene of offence panchnama - Exh.11

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(4) Panchnama of the clothes of the deceased – Exh.14

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(5) Arrest Panchnama of the accused – Exh.18

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(6) Yadi sent for performing of postmortem – Exh.21

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(7) Postmortem report – Exh.22

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(8) Yadi for the purpose of recording the dying declaration – Exh.25

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(9) Dying declaration – Exh.26

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(10) Yadi for preparing map of the scene of offence – Exh.30

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(11) Map of the scene of offence – Exh.32

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(12) Original complaint – Exh.36

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(13) Outward details – Exh.37

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(14) Report of the Forensic Science Laboratory Mobile Van – Exh.38

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(15) Receipt of the Forensic Science Laboratory – Exh.39

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(16) Letter of the Forensic Science Laboratory – Exh.40

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(17) Report of the Forensic Science Laboratory – Exh.41

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After completion of the oral as well as the documentary evidence of the prosecution, the statement of the accused under Section 313 of the Code of Criminal Procedure was recorded, in which the accused stated that the complaint was a false one and he was innocent. He had no knowledge about the incident. On the night of the incident, he was at his house along with his wife. He expressed his desire to examine one Ravjibhai Mangalbhai Zala as his defence witness.

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At the conclusion of the trial, the learned trial Judge convicted the accused for the offences punishable under Sections 302 and 452 of the Indian Penal Code and sentenced him as stated herein before.

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Being dissatisfied, the accused-appellant has come up with the present Appeal.

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Contentions on behalf of the Accused-Appellant :

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The principal submission canvassed by Mr.Parikh, the learned advocate appearing for the appellant, while assailing the judgment and order of conviction passed by the trial Court,

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is that on 3^rd April 2007 i.e. on the date of the incident itself, while being treated at the General Hospital, Kheda, in the history given before the doctor, the name of the accused was not disclosed. According to Mr.Parikh, the Medical Certificate Exh.6 issued by one Dr.Panchal, a Medical Officer at the General Hospital, Kheda, would indicate that all that was stated before him by the deceased was that she had sustained burns at around 12:15 a.m. at home. Mr.Parikh submitted that the doctor, in his certificate Exh.6, has noted that the patient was conscious and was cooperative. In the first instance, the deceased had failed to disclose the name of the accused before the doctor and this itself would suggest that the accused is innocent.

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Mr.Parikh further submitted that the deceased, at the time of the incident, had raised shouts no sooner she was set ablaze and her brothers-in-law and other people from the neighbourhood had immediately rushed at the house of the deceased and extinguished the fire. Mr.Parikh submitted that the deceased had made a statement before the PW12, her brother-in-law, that it was the accused who had set her on fire by sprinkling kerosene on her body.

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According to Mr.Parikh, the above is suggestive of the fact that people had already come to know that it was the accused who had set the deceased on fire, and when all those people had taken the deceased to the hospital at Kheda, then eventhough the deceased might not have thought fit to disclose the name of the accused before the doctor, yet the persons who had accompanied her could have disclosed the name of the accused as the assailant before the doctor.

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Mr.Parikh would submit that this is a strong circumstance pointing towards the innocence of the accused and the trial Court ought not to have discarded the same from taking into consideration. Mr.Parikh submitted that there is no evidence to suggest that the accused, at the relevant point of time, was at the house of the deceased as none of the witnesses have deposed that they had seen the accused even nearby the house of the deceased.

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Mr.Parikh submitted that the dying declaration also could not have been believed and taken into consideration having regard to the fact that the deceased had sustained almost 92% of burns and could not have been in a fit state of mind to give such a declaration. Mr.Parikh also submitted that the

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prosecution failed to examine the doctor who had certified that the deceased was conscious and was in a fit state of mind to give the dying declaration.

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According to Mr.Parikh, there is no endorsement of the doctor even on the First Information Report lodged by the deceased, which has been considered as the first dying declaration before the police.

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While attacking the evidentiary value of the dying declaration, Mr.Parikh submitted that the Executive Magistrate has not put his endorsement on the dying declaration that he had found the deceased conscious and in a fit state of mind, before recording the dying declaration.

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Mr.Parikh strenuously tried to convince us that this is a case of suicide committed by the deceased, and Mr.Parikh tried to fortify such submission on the basis of the parts of the body which were affected according to the postmortem report.

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The sum and substance of Mr.Parikh’s submission is that if kerosene is alleged to have been sprinkled or thrown by the accused, then in such circumstances, the first part which would

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come in contact with the kerosene would be the mid portion of the body, whereas in the present case, it has been found that there were burn injuries even on the neck as well as the upper limbs. Mr.Parikh would submit that the trial Court ought not to have convicted the accused for the offence of murder on the basis of the evidence on record.

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Contentions on behalf of the State :

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Ms.Chetana Shah, the learned APP appearing for the State, vehemently submitted that the trial Court rightly recorded the finding of guilt of the accused for the offence of murder punishable under Section 302 of the Indian Penal Code. Ms.Shah submitted that the trial Court committed no error in relying on the dying declarations of the deceased.

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Ms.Shah submitted that the deceased was under no obligation to disclose the name of the accused before the doctor at the time of recording of the history of assault. In the same manner, according to Ms.Shah, the persons who had brought the deceased to the hospital were also under no obligation to disclose the name of the accused as the assailant. Ms.Shah submitted that even the doctor was under no

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obligation to specifically inquire with the injured as regards the assailant.

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Ms.Shah would submit that the only obligation on the part of the doctor would be to see that immediate treatment is being given to the injured and the life of the injured is saved.

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Oral evidence on record :

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Dr.Girish Manubhai Panchal was examined as the Prosecution Witness No.1 – Exh.5. This witness, in his evidence, has deposed that on 3^rd April 2007 he was on duty as a Medical Officer at General Hospital, Kheda. At 12:50 a.m., the injured-victim was brought for treatment by her relatives. She was examined and was found to be fully conscious.

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According to Dr.Panchal, upon asking the history of the incident, the patient had disclosed before him that she was burnt with kerosene at her house. According to Dr.Panchal, the pulse of the patient was very fast and her breathing was normal. The patient had sustained almost 90% of burns all over the body and her condition was found to be critical. Dr.Panchal has deposed that accordingly the patient was referred to the V.S.Hospital, Ahmedabad, and she was taken

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by her relatives at the earliest. In his cross-examination, he has deposed that while giving history, the patient had not disclosed the name of the person who had sprinkled kerosene on her body.

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The prosecution examined Ramilaben Pravinbhai as the Prosecution Witness No.2 – Exh.7 to prove the inquest panchnama. This witness did not support the case of the prosecution and accordingly was declared as a hostile witness.

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The prosecution examined Jashwantsinh Manubhai as the Prosecution Witness No.3 – Exh.9. This witness was examined to prove the inquest panchnama Exh.8.

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The prosecution examined Rajeshbhai Babubhai as the Prosecution Witness No.4 – Exh.10. This witness was examined to prove the scene of offence panchanama. However, this witness failed to support the case of the prosecution and was accordingly declared as a hostile witness.

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The prosecution examined Madhabhai Gotabhai Khant as the Prosecution Witness No.5 – Exh.12. This witness was examined to prove the panchnama of the scene of offence.

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However, he was also declared as a hostile witness.

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The prosecution examined Ramanbhai Fatabhai Rathod as the Prosecution Witness No.6 – Exh.13. This witness was examined to prove the panchnama of the clothes of the deceased which were collected. However, this witness also failed to support the case of the prosecution and was declared as a hostile witness.

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The prosecution examined Shanabhai Rathod as the Prosecution Witness No.7 – Exh.16. This witness was examined to prove the panchnama of the clothes of the deceased but he was also declared as a hostile witness.

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The prosecution examined Bababhai Mangalbhai Solanki as the Prosecution Witness No.8 – Exh.17. This witness was examined to prove the arrest panchnama of the accused, but this witness was also declared as a hostile witness.

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The prosecution examined Bhudabhai Dahyabhai Rathod as the Prosecution Witness No.9 – Exh.19. This witness was examined to prove the arrest panchnama of the accused, but was declared as a hostile witness.

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The prosecution examined Dr.Pratik Anilbhai Patel as the Prosecution Witness No.10 – Exh.20. This witness was examined to prove the postmortem report. This witness, in his evidence, has deposed that on 13^th April 2007 he was on duty as a Medical Officer at the V.S.Hospital, Ahmedabad, and that point of time the dead body of ‘X’ (name changed), wife of ‘Y’ (name changed), was brought with a police yadi for the purpose of postmortem.

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According to this witness, there were burn marks all over the body with bandages. There were second to third degree burns on most of the parts of the dead body.

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He deposed that the cause of death was due to burn injuries and shock. In his cross-examination, he denied the suggestion put to him by the defence that in cases of burns upto 92% the injured would not be in a position to speak or move. He also deposed in his cross-examination that the injuries which were sustained by the deceased could be self inflicted injuries.

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The prosecution examined Baluji Ditaji Solanki as the

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Prosecution Witness No.11 – Exh.24. This witness was examined to prove the dying declaration. In his evidence, this witness has deposed that on 3^rd April 2007 he was performing duty as an Executive Magistrate in the Metropolitan Area, Court No.2. He received a yadi early in the morning at around 5:30 a.m. for recording a dying declaration of a patient named ‘X’.

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According to this witness, the yadi which he had received bore an endorsement made by the doctor that the patient was conscious and was in a fit state of mind to give her dying declaration. On receipt of the yadi, this witness proceeded to the V.S.Hospital, Ahmedabad, in a Jeep. This witness has deposed that before commencing with the recording of the dying declaration, he had a formal conversation with the patient and thereby confirmed as to whether she was able to speak and understand. After being satisfied about the condition of the patient, he started recording the statement at 6:00 a.m. in a Question-Answer form.

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This witness has deposed that in the dying declaration, the victim stated that on the date of the incident she was at her house and in the night the accused came at her house and

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asked her to sleep with him. The victim resisted the demand. Since the victim refused, the accused got enraged and sprinkled kerosene from a container lying near a stove in the house on her body. The victim further stated in the dying declaration that with a matchstick the accused set her on fire, as a result the victim fell unconscious. This witness has further deposed that on inquiring with the victim whether any person had burnt her, and in reply to such a question, the victim had disclosed the name of the accused.

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To a specific question being put by this witness to the victim that whether she had attempted to commit suicide, the victim had replied in the negative and reiterated that it was the accused who had burnt her.

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In reply to a specific question put by this witness to the victim that whether she had committed such an act due to any love affair, the victim had replied saying ‘yes’, but clarified that the accused wanted to maintain physical relations with force and, therefore, did such a thing.

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This witness has deposed that the entire statement made by the victim was read out before her and thereafter the victim

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had put her thumb impression on the same. This witness produced the original dying declaration which was marked as Exh.26.

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In the cross-examination of this witness nothing substantial could be elicited by the defence except few suggestions which were denied by the witness.

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This witness, in his cross-examination, has deposed that at the time of recording the dying declaration, the patient was not put on oxygen. This witness also denied the suggestion that the patient was able to answer a question only after putting the same two to three times. He has deposed that the patient was able to answer the questions properly and, therefore, the statement was recorded. He denied the suggestion put to him by the defence that ‘X’, the deceased, was not in a fit condition to give her dying declaration.

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The prosecution examined the brother-in-law of the deceased as the Prosecution Witness No.12 – Exh.27. This witness happens to be the brother-in-law of the deceased. He has deposed that her sister-in-law, the deceased, was residing in the house adjoining to his house along with her two children.

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According to this witness, on the date of the incident, there was a function of ‘Garba’ and he had gone to play ‘Garba’. At around 11:00 p.m. as he felt thirsty he returned home to quench his thirst and at that point of time he witnessed his sister-in-law, the deceased, burning and shouting for help.

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This witness immediately rushed at the house of the deceased and extinguished the fire by throwing a quilt on her body.

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This witness has further deposed that her sister-in-law was able to speak, and upon asking her as to how she had sustained burns, she replied that it was the accused who did so as she refused to sleep with him.

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This witness has further deposed that immediately thereafter he called the other family members and made arrangements to shift her sister-in-law to the Civil Hospital, Kheda.

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In the cross-examination of this witness nothing substantial could be elicited so as to render the evidence of

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this witness doubtful in any manner.

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In his cross-examination, he has deposed that when his brother ‘Y’ was alive, the accused used to cultivate his land on a crop-sharing basis. At that point of time, the accused used to come at the house of his brother practically every day. After the demise of his brother, the accused was looking after the agricultural work in the field and was cultivating the farm on a crop-sharing basis till the time of the incident. He has further deposed that the accused was not maintaining proper accounts of the income generated from the agricultural operations and did not approve the decision of her sister-in-law to get the land cultivated through the accused.

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He has further deposed that the people in the village had an impression that the accused had illicit relations with his sister-in-law i.e. the deceased and that was the reason why he did not like the accused visiting the house of her sister-in-law.

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This witness denied the suggestion put to him that due to illicit relations her sister-in-law had set herself on fire out of shame. He also denied the suggestion that after being set on fire, her sister-in-law had become unconscious.

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The prosecution examined the mother-in-law of the deceased as the Prosecution Witness No.13 – Exh.28. This witness happens to be the mother-in-law of the deceased. She has deposed in her evidence that the deceased was residing next to her house. On the date of the incident, they had all gone to the house of one Mansingbhai as there was a function of ‘Garba’ at his house. Her daughter-in-law, the deceased, had gone of to sleep with her children. In the night, she heard shouts and accordingly they all ran towards the house and witnessed that her daughter-in-law was burning. She has deposed that her son extinguished the fire with a quilt. Her daughter-in-law ‘X’ was able to speak, and upon inquiring with her as to what had happened, she disclosed that it was the accused who had entered the house and set her on fire with a matchstick.

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In her cross-examination, she has deposed that after the death of his son, the accused used to visit the house of her daughter-in-law quite frequently and people started talking about the illicit relations between them. She also used to scold her daughter-in-law ‘X’, the deceased, for the same and used to tell her that she should not allow the accused to come at her

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house. She has further deposed that the deceased was not in their control and used to do whatever the accused used to ask her to do.

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The prosecution examined Somabhai Dhulabhai as the Prosecution Witness No.14 – Exh.29. This witness, at the relevant point of time, was incharge of Matar Police Station as a P.S.O.

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The prosecution examined Manharbhai Kantibhai Rana as the Prosecution Witness No.15 – Exh.30. This witness, at the relevant point of time, was on duty as a Circle Inspector and had received a yadi from the P.S.I. of Matar Police Station to prepare a map of the place of occurrence. Accordingly, this witness had prepared the map which was marked as Exh.32.

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The prosecution examined Laxmanbhai Chauhan as the Prosecution Witness No.16 – Exh.35. This witness has been examined as the Investigating Officer of the crime. This witness, in his evidence, has deposed that on 3^rd April 2007 he was on duty as a P.S.I. at Matar Police Station. A P.S.O. named Jethabhai had handed over a ‘Janwajog’ Entry No.23 of 2007 with a written order for the investigation of the same and

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accordingly he had taken over the investigation.

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This witness has deposed that he visited the Burns Ward of the V.S.Hospital, Ahmedabad, after seeking permission from the superior officer and had registered the F.I.R. lodged by the deceased.

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This witness proved the F.I.R. which was lodged by the deceased and was marked as Exh.36. He has deposed that thereafter arrangements were made for recording of the dying declaration, and for that purpose, a yadi was sent to the Executive Magistrate. He has also deposed that statements of various witnesses were recorded. On completion of the investigation, he filed charge-sheet against the accused. In his cross-examination, nothing substantial could be elicited so as to disbelieve the case of the prosecution.

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In his cross-examination, he denied the suggestion that at the time of recording of the complaint, the deceased was unconscious.

¶195

On behalf of the accused, one Ravjibhai Mangalbhai Zala was examined as the Defence Witness – Exh.44. This witness

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has deposed that the deceased resided about ten fields far from his house and had no idea how the deceased had sustained burn injuries. He has deposed that he had learnt through others that the deceased had illicit relations with the accused and for that reason she had died.

¶199

There was no cross-examination of this witness at the end of the Public Prosecutor.

¶200

On behalf of the accused, one Shakiraben Vinubhai was examined as the Defence Witness No.2 – Exh.45. This witness has deposed that the deceased happened to be her real sisterin-law. On the night of the incident there was a function of ‘Garba’ and everyone had gone at the house of the host. She has deposed that while at the function of ‘Garba’, they received news that ‘X’ had sustained burn injuries and accordingly they all ran at the house of Savitaben. At that point of time, everyone was discussing that it was the accused who had set ‘X’ on fire but she had not witnessed the accused at that place.

¶201

The picture that emerges on cumulative assessment of the materials on record is thus :

¶202

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(i) The deceased was a widow and was residing with her two children at the time of the incident. The accused happened to be the friend of the late husband of the deceased. During the lifetime of the husband of the deceased, the accused used to cultivate the agricultural field on crop-sharing basis and continued to do so even after the demise of the husband of the deceased.

¶205

(ii) It also appears that the accused to frequently visit the house of the deceased which was not liked by other family members of the deceased and the people in the village had gathered an impression that there was affair between the accused and the deceased.

¶206

(iii) On the date of the incident, the accused came at the house of the deceased and asked the deceased to sleep with him. The deceased refused the same, and as force was exerted by the accused, she gave a bite on the hand of the accused, as a result the accused got enraged and sprinkled kerosene from a container which was lying in the house of the deceased on the body of the deceased. The accused thereafter, with a matchstick,

¶207

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ignited the saree, as a result the deceased sustained almost 92% burns all over the body.

¶210

(iv) People from the neighbourhood immediately gathered at the house of the deceased and the deceased immediately disclosed the name of the accused as the person responsible for setting her on fire. The relatives and other people residing in the neighbourhood shifted her to the Civil Hospital, Kheda, where, after receiving some preliminary treatment, she was shifted to the V.S.Hospital, Ahmedabad.

¶211

(v) On the very same day, after being admitted at the V.S.Hospital, Ahmedabad, the Investigating Officer recorded the F.I.R., wherein she disclosed the name of the accused as the person who sprinkled kerosene and set her on fire. Thereafter, a dying declaration was recorded by the Executive Magistrate, wherein she confirmed what was stated by her in her F.IR. After almost ten days from the date of the incident, she succumbed to the injuries.

¶212

Having heard the learned counsel appearing for the

¶213

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parties and having gone through the materials on record, the only question that falls for our consideration in this Appeal is, whether the trial Court committed any error in holding the accused-appellant guilty of the offence of murder punishable under Section 302 of the Indian Penal Code.

¶216

We are not impressed by the submission of Mr.Parikh that the accused is entitled to be given the benefit of doubt as the persons who had brought the deceased to the Kheda Civil Hospital failed to disclose the name of the accused before the doctor.

¶217

We are also not impressed by the submission of Mr.Parikh that not only the persons who had brought the deceased to the hospital failed to disclose the name of the accused before the doctor but even the deceased herself did not disclose the name of the accused before the doctor. In our opinion, this argument is only stated to be rejected. The doctor is not at all concerned as to who committed the offence or whether the person brought to him is a criminal or an ordinary person, but his primary efforts is to save the life of a person brought to him and to inform the police in a medico-legal case.

¶218

In the state of confusion, the relatives of the deceased

¶219

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and others may not have chosen to give details of the incident or the assault to the doctor. It is well-settled that the doctors before whom dead bodies are produced or injured persons are brought, either themselves take the dying declarations or hold the postmortem immediately, and if they start examining the informants they are likely to become witnesses of the occurrence, which is not permissible (see Patipati Vainkaiyya v. State of Andhra Pradesh , AIR 1985 SC 1715)

¶222

Thus, the omission on the part of the relatives of the deceased and other persons to disclose the name of the accused as the assailant before the doctor by itself is not a circumstance on the basis of which the accused is entitled to the benefit of reasonable doubt. Equally so, the omission on the part of the deceased to disclose the name of the accused as the assailant before the doctor could not be considered as a circumstance on the basis of which the accused is entitled to the benefit of rule of reasonable doubt. "A reasonable doubt”, it has been remarked, “does not mean some light, airy, insubstantial doubt that may flit through the minds of any of us about almost anything at some time or other; it does not mean a doubt begotten by sympathy out of reluctance to convict; it means a real doubt, a doubt founded upon reason (Salmond, J.

¶223

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in his charge to the jury in R.v. Fantle reported in 1959 Criminal Law Review 584). As observed by Lord Denning in Miller v. Minister of Pensions (1947) 2 All ER 372) "Proof beyond a reasonable doubt does not mean proof beyond a shadow of a doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour, which can be dismissed with the sentence “of course it is possible but not in the least probable”, the case is proved beyond reasonable doubt, but nothing short of that will suffice”. In Khem Karan v. State of U.P., AIR 1974 SC 1567, the Supreme Court observed (at p.1569) :

¶226

“ Neither mere possibilities nor remote possibilities nor mere doubts which are not reasonable can, without danger to the administration of justice, be the foundation of the acquittal of an accused person, if there is otherwise fairly credible testimony.”

¶227

The arguments of Mr.Parikh could have assumed significance had it been a case in which a specific question would have been put to the deceased by the doctor as regards the person responsible for causing such burn injuries, and in reply to the same, the deceased would disclose that she had

¶228

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no idea about the assailant or that it was an attempt on her part to set herself on fire or she had sustained burn injuries due to an accident. In such circumstances, the prosecution would owe a duty to explain as to in what circumstances the deceased had stated so before the doctor and such a circumstance perhaps may lead to a reasonable doubt about the complicity of the case. Such is not the position in the present case.

¶231

We are also not impressed by the submission of Mr.Parikh that this is a case of suicide and not murder. Mr.Parikh tried to convince us that having regard to the nature of injuries sustained by the deceased, more particularly, the parts of the body, the same is not in consonance with the theory of the prosecution that kerosene was sprinkled or thrown on the body of the deceased.

¶232

According to Mr.Parikh, if the accused had thrown the kerosene or sprinkled the kerosene, there would have been no burn injuries on the neck region because ordinarily when kerosene is sprinkled, the mid portion of the body would directly come in contact with the kerosene.

¶233

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We are not impressed by this submission for the simple reason that the texture of the saree worn by the deceased was silk. This is evident from the materials on record, more particularly, the serological test report and the panchnama of the clothes worn by the deceased at the time of the incident.

¶236

A silk saree would burn very fast and, therefore, even those parts of the body which may not get stained or drenched with kerosene would easily get burn. Beside this, according to the serological test report, hydrocarbon particles were found in the pieces of clothes which were collected during the course of investigation. The serological test report confirms that the liquid which was thrown on the deceased was kerosene.

¶237

We have no reason even to disbelieve the two dying declarations; first, before the Investigating Officer at the time of recording of the F.I.R. and, at a later stage, the dying declaration recorded by the Executive Magistrate. Nothing substantial could be elicited by the defence through the crossexamination of the Executive Magistrate or the Investigating Officer so as to disbelieve the contents of the same. Both the dying declarations are consistent with each other and are substantially corroborated and fortified by the oral version of

¶238

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the two witnesses, viz. PW12, the brother-in-law of the deceased Exh.27 and PW13, the mother-in-law of the deceased Exh.28, before whom the deceased disclosed the name of the accused as the assailant immediately in point of time.

¶241

In our opinion, both these witnesses could be termed as a res gestae witnesses. This principle of res gestae is embodied in Section 6 of the Evidence Act.

¶242

“ 6. Relevancy of facts forming part of same transaction.Facts which, though not in issue, are so connected with a fact in issue as to form part of the same transaction, are relevant, whether they occurred at the same time and place or at different times and place.”

¶243

56. In the case of Sukhar v/s. State of U.P ., (1999)9 SCC

¶244

507, the Supreme Court noticed position of law with regard to Section 6 of the Evidence Act thus :

¶245

“ 6. Section 6 of the Evidence Act is an exception to the general rule whereunder the hearsay evidence becomes admissible. But for bringing such hearsay evidence within the provisions of Section 6, what is required to be established is that it must be almost contemporaneous with the acts and there should not be an interval which would allow fabrication. The statements sought to be

¶246

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admitted, therefore, as forming part of res gestae, must have been made contemporaneously with the acts or immediately thereafter. The aforesaid rule as it is stated in Wigmore's Evidence Act reads thus :

¶249

"Under the present exception [to hearsay] an utterance is by hypothesis, offered as an assertion to evidence the fact asserted (for example that a car-brake was set or not set), and the only condition is that it shall have been made spontaneously, i.e. as the natural effusion of a state of excitement. Now this state of excitement may well continue to exist after the exciting fact has ended. The declaration, therefore, may be admissible even though subsequent to the occurrence, provided, it is near enough in time to allow the assumption that the exciting influence continued."

¶250

57. Sarkar on Evidence (Fifteenth Edition) summarises the law relating to applicability of Section 6 of the Evidence Act thus :

¶251

"1. The declarations (oral or written) must relate to the act which is in issue or relevant thereto; they are not admissible merely because they accompany an act. Moreover the declarations must relate to and explain the fact they accompany, and not independent facts previous or subsequent thereto unless such facts are part of a transaction which is continuous.

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2. The declarations must be substantially contemporaneous with the fact and not merely the narrative of a past.

¶255

3. The declaration and the act may be by the same person, or they may be by different persons, e.g., the declarations of the victim, assailant and bystanders. In conspiracy, riot, the declarations of all concerned in the common object are admissible.

¶256

4. Though admissible to explain or corroborate, or to understand the significance of the act, declarations are not evidence of the truth of the matters stated.”

¶257

The rule embodied in Section 6 is usually known as the rule of res gestae . What it means is that a fact which, though not in issue, is so connected with the fact in issue “as to form part of the same transaction” becomes relevant by itself. To form particular statement as part of the same transaction utterances must be simultaneous with the incident or substantial contemporaneous that is made either during or immediately before or after its occurrence.

¶258

We are also convinced from the materials on record that

¶259

on both the occasions i.e. at the time of recording of the F.I.R. Exh.36 as well as at the time of recording the dying declaration

¶260

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Exh.26 the deceased was conscious and was in a fit state of mind.

¶263

There is nothing which the defence could elicit on the basis of which it could be said or even a reasonable doubt could be entertained that the deceased was not in a position to give such dying declarations.

¶264

It is very pertinent to note that no suggestions were put by the defence to the two witnesses, viz. PW 12, the brotherin-law of the deceased Exh.27 and PW13, the mother-in-law of the deceased Exh.28, that the deceased had not stated anything before them regarding the complicity of the accused. Although two defence witnesses were examined by the accused, but none of those two witnesses have deposed anything which would point towards the innocence of the accused. On the contrary, we may take note of an important fact that the accused, in his 313 statement, stated that on the date of the incident in the night he was at his home along with his wife, and if that be so, nothing had prevented him from examining his wife as a defence witness. The accused has completely failed to substantiate his defence even on preponderance of probabilities that on the night of the incident he was at his house along with other family members.

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In the above circumstances, in our view, the learned Sessions Judge was quite justified in concluding that the death of the victim was caused due to the burn injuries inflicted by the accused.

¶268

We agree with the learned Sessions Judge that the case of murder has been put beyond reasonable doubt. We, thus, find that the Appeal is devoid of any merit and the same deserves to be dismissed. Consequently, the same is dismissed.

¶269

The impugned orders of conviction and sentence passed by the learned Additional Sessions Judge are confirmed.

¶270

(BHASKAR BHATTACHARYA, CJ.)

¶271

(J.B.PARDIWALA, J.)

¶272

MOIN

¶273

Page 39 of 39

Dashrathbhai Mohanbhai Rathod v. State of Gujarat

Case brief

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Dashrathbhai Mohanbhai Rathod v. State of Gujarat

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