Gujarat High Court
Jitendrabhai @ Manharbhai Devjibhai ... vs State Of Gujarat on 14 February, 2024
Author: A.S. Supehia
Bench: A.S. Supehia
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL (AGAINST CONVICTION) NO. 1149 of 2016
With
CRIMINAL MISC.APPLICATION (REGULAR BAIL) NO. 6 of 2023
In R/CRIMINAL APPEAL NO. 1149 of 2016
With
CRIMINAL MISC.APPLICATION (REGULAR BAIL) NO. 7 of 2023
In R/CRIMINAL APPEAL NO. 1149 of 2016
With
CRIMINAL MISC.APPLICATION (FOR REGULAR BAIL) NO. 9 of 2023
In R/CRIMINAL APPEAL NO. 1149 of 2016
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE A.S. SUPEHIA Sd/-
and
HONOURABLE MR. JUSTICE VIMAL K. VYAS Sd/-
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1 Whether Reporters of Local Papers may be allowed YES
to see the judgment ?
2 To be referred to the Reporter or not ? YES
3 Whether their Lordships wish to see the fair copy NO
of the judgment ?
4 Whether this case involves a substantial question NO
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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JITENDRABHAI @ MANHARBHAI DEVJIBHAI VASAVA & 5 other(s)
Versus
STATE OF GUJARAT
================================================================
Appearance:
HCLS COMMITTEE(4998) for the Appellant(s) No. 1
MR RAMNANDAN SINGH(1126) for the Appellant(s) No. 1,2,3,4,5,6
MR TIRTHRAJ PANDYA, APP for the Opponent(s)/Respondent(s) No. 1
================================================================
CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA
and
HONOURABLE MR. JUSTICE VIMAL K. VYAS
Page 1 of 37
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Date : 14/02/2024
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE VIMAL K. VYAS)
1. The appellants-accused have preferred the present Appeal
under Section 374 of the Code of Criminal Procedure, 1973 (for
short, 'the Cr.P.C.) and challenged the judgment and order of
conviction dated 15th March 2016 rendered by the learned 6th
Ad-hoc Additional Sessions Judge, Ankleshwar, District
Bharuch, in Sessions Case No.123 of 2013, convicting the
appellants-accused for the offences punishable under Section
302 read with Section 114 of the Indian Penal Code and
sentencing them to undergo life imprisonment with a fine of
Rs.500=00 and in default of payment of fine, to suffer further
simple imprisonment for 15 days. The appellants-accused have
been acquitted for the offences punishable under Section 504
read with Section 114 of the Indian Penal Code.
2. The case of the prosecution in nut-shell is that on 4 th April
2013 at about 6:00 p.m., the accused nos.1 to 6 (appellants
herein) had quarreled with the deceased complainant Lilaben
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Babubhai Vasava and her family members as to why they made
a bath-room in the land of the appellants and hurled abuses but
the complainant and her family members had not responded to
it. Thereafter, in the evening at about 7:15 p.m., when the
deceased complainant was alone at her home, at that time, all
the accused persons (appellants herein) had again come to her
house and started quarreling with the deceased complainant by
using abusive language and tried to caught hold of her. She,
therefore, ran away to the house of her aunt Savitaben
Kanchanbhai Vasava. All the appellants-accused chased the
deceased complainant and the appellants nos.3 to 6 caught hold
of her at the house of Savitaben and pushed her on the floor, at
that time, the appellant no.1 poured kerosene on her body from
a can and appellant no.2 set her ablaze by lighting a match-
stick. As the deceased complainant started shouting, all the
appellants-accused ran away from the scene of offence. The
deceased complainant was immediately rushed to the Civil
Hospital at Bharuch by her family members, where she was
admitted at about 8:45 p.m. An M.L.C. case was registered and
the 'wardhi' in this regard was sent to the Jhagadia Police
Station, which was entered into station diary by the PSO on
4.4.2013 vide Entry No.16 and a yadi was sent to the Executive
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Magistrate for recording of the dying declaration of the injured
Lilaben. The PSO, thereafter, informed the PSI Shri Govindbhai
Mansingbhai Rathva, who immediately rushed to the hospital
and recorded the complaint of the injured Lilaben at 00:30 hours
on 5.4.2013.
3. On the basis of the FIR, an offence came to be registered as
I-CR No.62 of 2013 at the Jhagadia Police Station initially under
Sections 307, 504 read with Section 114 of the Indian Penal
Code and the investigation was commenced. As the complainant
succumbed to the injuries, on 14.4.2013, the offence under
Section 302 was added in the FIR.
4. During the investigation, the scene of offence panchnama,
inquest panchnama and seizure panchnama were drawn; the
statements of the victim conversant with the incident were
recorded and all the accused were arrested and panchnamas in
this regard were drawn in presence of the panchas. The
documentary evidence in the nature of postmortem report, dying
declaration, FSL report, etc. were collected.
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5. On completion of the investigation, charge-sheet came to
be filed before the learned Judicial Magistrate, First Class,
Jhagadia, under Sections 302, 504 read with Section 114 of the
Indian Penal Code. As the offence was exclusively triable by the
Sessions Court, the case was committed to the Sessions Court,
Ankleshwar, which was registered as Sessions Case No.123 of
2013. The learned Sessions Judge framed the charge at Exh.4
against all the accused persons. The charge was read over and
explained to the appellants-accused, who pleaded not guilty to
the charge and claimed to be tried.
6. To bring home the charge, the prosecution produced the
following oral evidence :
ORAL EVIDENCE
Sr. Exhibit Details/Deposition
No.
1. 12 Panch - Maheshbhai Mangabhai Vasava
2. 19 Panch - Maheshbhai Kantibhai Vasava
3. 20 Panch - Miteshbhai Kanchanbhai Vasava
4. 22 Panch - Taraben Rajivbhai Vasava
5. 23 Panch - Ramanbhai Vajirbhai Vasava
6. 28 Panch - Nanubhai Virchandbhai Varde
7. 29 Panch - Sarlaben Rakeshbhai Vasava
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8. 30 Witness - Savitaben Kanchanbhai Vasava
9. 31 Witness - Rupaben Babubhai Vasava
10. 32 Witness - Rakeshbhai Babubhai Vasava
11. 33 Medical Officer - Dr.Vijaybhai Motiram Baviskar
12. 35 Investigating Officer - Javaharbhai Mohanbhai
Vasava
13. 36 Witness - Bharatbhai Babubhai Vasava
14. 38 Executive Magistrate - Dhanabhai Khalpabhai
Vasava
15. 41 P.S.O. - Ratilal Mohanbhai
16. 44 Investigating Officer - Pravinbhai Hatthabhai
Chaudhary
17. 49 Investigating Officer - Govindbhai Mansingbhai
Rathwa
18. 54 Medical Officer - Dr.Dilipkumar Kantilal Patel
19. 58 Medical Officer - Dr.Sureshnandan Ramnarayan
Yadav
7. The prosecution has also adduced the following
documentary evidence :
DOCUMENTARY EVIDENCE
Sr. Exhibit Document details
No.
1. 13 Panchnama of the scene of offence
2. 21 Inquest Panchnama
3. 24 to 27 Panchnama of the person of the accused
4. 34 Postmortem Report
5. 39 Dying declaration of the deceased
6. 40 Yadi for recording the dying declaration
7. 42 Station diary details
8. 43 Wardhi sent from Vir Surgical Hospital
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9. 45 Note for sending the muddamal
10. 46 Receipt for receiving the muddamal by the FSL
11. 47 FSL Report
12. 48 Report of visiting the place of offence
13. 50 Original Complaint
14. 51 Biological & Serological Report of the FSL
15. 55 Medico-Legal Certificate of Vir Surgical Hospital
16. 59 Certificate of Civil Hospital, Bharuch
17. 60 Case-papers of Civil Hospital, Bharuch
8. On completion of recording of the evidence, the learned
Sessions Judge explained the incriminating circumstances
against the appellants-accused in the evidence. The appellants-
accused, in the further statement recorded under Section 313 of
the Cr.P.C., explained the incriminating circumstances that they
are innocent and falsely implicated in the alleged offence. On
completion of the trial, the learned Sessions Judge found the
appellants-accused guilty of the offence and sentenced them as
stated herein above.
9. Being dissatisfied with the aforesaid judgment and order of
conviction and sentence, the appellants-accused have preferred
the present Appeal before this Court.
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SUBMISSIONS ON BEHALF OF THE APPELLANTS-ACCUSED :
10. Learned advocate Mr.Ramnandan Singh for the appellants-
accused has submitted that the trial court has erred in
convicting and sentencing the appellants-accused for the offence
punishable under Section 302 read with Section 114 of the
Indian Penal Code.
11. Learned advocate Mr.Ramnandan Singh, while taking this
Court to the evidence led by the prosecution, has submitted that
all the panch witnesses have not supported the case of the
prosecution and have turned hostile. Therefore, the contents of
the scene of offence panchnama, inquest panchnama and the
arrest panchnama are not duly proved.
12. It is further submitted by Mr.Singh that there was previous
animosity between the family members of the deceased and the
accused and, therefore, some cases were also filed by them
against each other. In support of his argument, learned advocate
Mr.Singh has placed reliance on the deposition of the PW8 -
Savitaben Kanchanbhai Vasava (Exh.30), who has admitted in
her cross-examination that earlier before the incident, she had a
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quarrel with the appellants and cases were also filed by both the
parties against each other. It is, therefore, submitted by learned
advocate Mr.Singh that due to previous enmity the appellants-
accused have been falsely implicated in the alleged offence. It is
further submitted that as per the case of the prosecution, soon
after the occurrence of the incident, Lilaben was rushed to the
Civil Hospital, Bharuch, where her dying declaration was
recorded at about 22:20 hours by PW14 - Executive Magistrate
Shri Dhanabhai Khalpabhai Vasava (Exh.38), in which the
deceased has not named the appellant-accused no.4 Ramanbhai
Bijalbhai Vasava. However, in the complaint, which has been
recorded by PW17 - PSI Shri Govindbhai Mansingbhai Rathwa
(Exh.49) at 00:30 hours on 5.4.2013, the name of the accused-
appellant no.4 is mentioned as the co-accused, which raises
suspicion towards the story of the prosecution. While referring to
the medical certificate at Exh.59 and the postmortem note at
Exh.34, learned advocate for the appellants-accused has
submitted that it is not believable that a person with 100% I st
and IInd degree burn injuries over the body can remain conscious
and in a fit state of mind to narrate the perfect details of the
incident, which also suggests that the history might not have
been given by the deceased. It is further submitted that as per
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the case of the prosecution, the accused nos.3 to 6 had caught
hold of the deceased and pushed her on the floor, whereas the
accused no.1 had poured kerosene on her body and the accused
no.2 had set her ablaze by lighting a matchstick. However, it is
noteworthy that none of the accused persons have received a
slightest burn injuries, which is also highly doubtful and raises
suspicion towards the involvement of the accused nos.3 to 6 in
the alleged offence. In support of his submission, Mr.Singh has
placed reliance on the decision of the Supreme Court in the case
of Umakant and another vs. State of Chhatisgarh, reported
in (2014) 7 SCC 405. He has, therefore, urged before this Court
that the present Appeal may be allowed.
13. Thus, learned advocate for the appellants-accused has
submitted that the learned trial Judge has not appreciated the
evidence adduced by the prosecution in its true perspective while
convicting the accused merely on the basis of conjectures and
surmises.
SUBMISSIONS ON BEHALF OF THE RESPONDENT - STATE :
14. In response to the aforesaid submissions, learned APP
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Mr.Tirthraj Pandya has submitted that the conviction and
sentence imposed by the trial Court do not call for any
interference by this Court as the same has rightly been imposed
after examining the oral as well as the documentary evidence.
Learned APP, while referring to the evidence of PW19 -
Dr.Sureshnandan Ramnarayan Yadav (Exh.58), has submitted
that the evidence of this witness reveals that on 4.4.2013 at
about 8:45 p.m. the deceased Lilaben was brought to the Civil
Hospital, Bharuch, by her relatives through 108-Ambulance
without the policy yadi. The evidence of this witness further
reveals that at the time of her examination, she was conscious,
and on asking the history about the incident, she specifically
named all the accused and stated that all of them together, after
pouring kerosene on her body, set her ablaze. It has also been
noticed by this witness that the smell of kerosene was emitting
from her body as well as from her burnt clothes. He, therefore,
made a specific note in the case papers in this regard.
15. Learned APP, thereafter, referred to the evidence of PW14 -
Executive Magistrate Shri Dhanabhai Khalpabhai Vasava
(Exh.38), who recorded the dying declaration of the deceased -
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Lilaben, and submitted that the evidence of this witness also
clearly reveals that at the time of recording the dying declaration,
the deceased was conscious and her dying declaration was
recorded in a 'question-answer' form, in which also, she has
named all the accused except the appellant-accused no.4, i.e.
Ramanbhai Bijalbhai Vasava, and stated that all the accused
quarreled with her and accused no.1 - Jitendrabhai Vasava had
poured kerosene on her body and accused no.2 - Ranjitbhai
Vasava set her ablaze by lighting a matchstick. Learned APP, in
this regard, has submitted that it is true that in her dying
declaration the deceased has not stated the name of the accused
no.4 - Ramanbhai Bijalbhai Vasava, but that by itself is of no
consequence since soon after the incident, at the time of her
examination by the Medical Officer at Civil Hospital, Bharuch,
the deceased herself narrated the history to the treating doctor
PW19 - Dr.Sureshnandan Ramnarayan Yadav by naming all the
accused including the appellant-accused no.4 - Ramanbhai
Bijalbhai Vasava. It is submitted that the evidence of PW14 -
Executive Magistrate Shri Dhanabhai Khalpabhai Vasava clearly
establishes the complicity of all the accused persons in the
alleged offence.
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16. Learned APP also referred to the evidence of the eye-
witness PW8 - Savitaben Kanchanbhai Vasava (Exh.30), PW9 -
Rupaben Babubhai Vasava (Exh.31), PW10 - Rakeshbhai
Babubhai Vasava (Exh.32), PW13 - Bharatbhai Babubhai
Vasava (Exh.36), PW16 - Police Inspector Shri Pravinbhai
Hatthabhai Chaudhary (Exh.44), PW17 - Investigating Officer
Shri Govindbhai Mansingbhai Rathwa, and has submitted that
considering their trustworthy evidence, their remains no doubt
about the complicity of all the appellants-accused in the alleged
offence. Thus, it is urged that the conviction and sentence
recorded by the trial court does not require any interference by
this Court and the Appeal may be dismissed.
ANALYSIS AND FINDINGS :
17. We have heard learned advocate for the respective parties
and threadbare examined the evidence on record as well as the
judgment and order of the trial Court.
18. The case of the prosecution, primarily, is based upon the
evidence of :
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(1) PW8 - Savitaben Kanchanbhai Vasava (eye-witness);
(2) PW9 - Rupaben Babubhai Vasava;
(3) PW10 - Rakeshbhai Babubhai Vasava.
(4) PW14 - Executive Magistrate Shri Dhanabhai
Khalpabhai Vasava;
(5) PW16 - Police Inspector, SOG, Shri Pravinbhai
Hatthabhai Chaudhary;
(6) PW17 - Investigating Officer Shri Govindbhai
Mansingbhai Rathwa;
(7) PW19 - Dr.Sureshnandan Ramnarayan Yadav
(treating doctor).
19. A close reading of the deposition of the eye-witness PW8 -
Savitaben Kanchanbhai Vasava (Exh.30), who is the aunt of the
deceased, reveals that she was present at the time of the
incident. She has narrated that on the date of the incident at
about 7:00 p.m., she had gone to collect straw stubble for
burning and at that time, the accused Jitendrabhai, Hareshbhai,
Devjibhai, Ranjitbhai Devjibhai Vasava, Ramanbhai Bijalbhai,
Dhaniben @ Dhankiben Devjibhai and Ramilaben Jitendrabhai
had come to the house of the deceased Lilaben and quarreled
with her regarding erection of 'kachcha' bathroom. At that time,
the accused Jitendrabhai Devjibhai was carrying a can of
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kerosene in his hand. Therefore, the deceased Lilaben had ran
towards the house of this witness. On witnessing the same, PW8
- Savitaben rushed to her house. At that time, Dhanjibhai,
Dhankiben, Ramilaben, Ranjit and Haresh had caught hold of
the deceased and Jitendra had poured kerosene on the deceased
and Ranjit had set her ablaze. In an attempt to save Lilaben,
Mitesh Kanchan had thrown blanket (rug) on Lilaben. The
witness Savitaben has stated that as the entire incident took
place at her house, she has witnessed the same. She has also
identified all the accused before the Court. In her cross-
examination, she has denied that at the time of admitting the
deceased at the Civil Hospital, Bharuch, the deceased was not
conscious. However, she has admitted that there was previous
animosity between them and some cases were also filed by them
against each other. Considering the aforesaid evidence, it
appears that the cross-examination does not dent the evidence of
this witness. It is the case of the defence that the version of this
witness does not reconcile with the dying declaration of the
deceased. It is contended that in her dying declaration, the
deceased had not stated the name of the accused Ramanbhai
and only stated that all the accused had come to her house with
a can of kerosene, quarreled with her and accused no.1 Jitendra
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poured kerosene on her body and accused no.2 Ranjit set her
ablaze by lighting a matchstick. It is, therefore, submitted that
except quarreling with the deceased, the accused nos.3 to 6 have
played no role.
20. At this juncture, it is noteworthy that prior to recording of
her dying declaration, the deceased was examined by the
Medical Officer - Dr.Sureshnandan Ramnarayan Yadav (PW19).
In his evidence, he has stated that on 4.4.2013 he was on duty
as a Medical Officer at the Civil Hospital, Bharuch. At that time,
at about 8:45 p.m. a patient named Lilaben Babubhai Vasava
was brought to the hospital through 108 Ambulance without the
police yadi. The patient was conscious and on asking about the
incident, she stated that at about 7:00 p.m. Jitendra Devji
Vasava, Ranjit Devji Vasava, Haresh Devji Vasava, Raman Bijal
Vasava, Ramila Jitendra Vasava and Dhanki Deva Vasava all
had set her ablaze by pouring kerosene on her body. This
witness has further stated that on examination, he found 100%
Ist and IInd degree burn injuries over the body of the deceased. He
has specifically deposed that the clothes of the deceased were
burnt and smell of kerosene was emitting from the body as well
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as from the clothes of the deceased. The patient was treated as
an indoor patient and, on 11.4.2013, she got discharged against
medical advise for getting treatment from a private hospital. He
has produced the medical certificate in this regard at Exh.59 and
indoor case papers at Exh.60. In his cross-examination, he has
denied the suggestion of the defence that he has not recorded
the history as per the rules and entered the name of the accused
later in point of time in the case-papers at Exh.60. In his cross-
examination, he has clearly denied that as the deceased had
received 100% burn injuries she was not in a position to even
speak. Further, he has denied that he has mentioned the name
of the accused in the case papers as per the suggestion of the
relatives of the deceased. It would be apt to note here that the
deceased herself narrated the history before the Medical Officer
(PW19) immediately at the time of admitting her in the Civil
Hospital, wherein she has clearly stated the name of all the
accused including the accused no.4 - Ramanbhai Bijalbhai
Vasava and the same was recorded by the doctor in the indoor
case papers at Exh.60.
21. The prosecution has also examined PW38 - Executive
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Magistrate - Dhanabhai Khalpabhai Vasava. This witness has
deposed that on 4.4.2013 he was serving as a Deputy
Mamlatdar, Bharuch, and he received a police 'wardhi' bearing
No.16 of 2013 from the Jhagadia Police Station with a request to
record the dying declaration of Lilaben. He, therefore, had gone
to the Civil Hospital, Bharuch, and on asking, the Medical
Officer on duty informed him that the patient Lilaben is admitted
in the burns ward and she is conscious and able to speak.
Therefore, he went to the patient, disclosed his identity and
recorded the dying declaration in a 'question-answer' form. This
witness has stated that on asking the patient about who brought
her to the hospital, the patient Lilaben replied that her uncle
Kanchanbhai Lallubhai Vasava and her mother Rupaben
brought her to the hospital. He has further stated that Lilaben
had specifically stated that she is at the hospital and is able to
understand and mentally fit to give reply to the questions put to
her. Further, on asking about her name, she stated her name to
be Lilaben Babubhai Vasava, resident of Vanthevad, Taluka
Jhagadia, District Bharuch, and further on asking about the
incident, she stated that today in the evening at about 6:00 p.m.,
Jitendra Devji Vasava, Haresh Devji Vasava, Ranjit Devji Vasava,
Dhankiben Devjibhai Vasava and Ramilaben Jitendrabhai
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Vasava had come to her house and quarreled with regard to the
land. At that time, she was alone at the house and the accused
were carrying a can of kerosene with them and Jitendra Devji
Vasava poured kerosene on her body and Ranjit Devji Vasava
had set her ablaze by lighting a matchstick. Lilaben further
stated that on hearing her cry, the neighbours had gathered
there. She has specifically stated that at the time of the incident,
nobody was in the house since her father had gone to the field to
collect fodder for the cattle and her mother had gone to collect
straw stubble for burning. The Executive Magistrate -
Dhanabhai Khalpabhai Vasava (PW38) has further deposed that
he had asked the patient, whether she tried to commit suicide.
In response to it, the patient denied. She has clearly stated that
she was assaulted by the aforesaid five persons who belongs to
her own village. She has also stated that she can identify all the
assaulter who ran away after pouring kerosene on her body and
setting her ablaze by lighting a match-stick. The Executive
Magistrate (PW38) has further deposed that at the time of
recording of the dying declaration of Lilaben, she was alone and
was able to read but as her right hand was covered with the
bandages, the thumb impression of her left hand was obtained
on the dying declaration. The Executive Magistrate - Dhanabhai
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Khalpabhai Vasava (PW38), thereafter, produced the original
dying declaration (Exh.39) as well as the police 'wardhi' by the
Jhagadia Police Station (Exh.40) and stated that in the margin of
Exh.40, the Medical Officer has endorsed that the patient is
conscious and able to speak. The cross-examination of this
witness does not dent his evidence.
22. Considering the aforesaid evidence, it clearly established
that the deceased Lilaben had specifically stated about the
involvement of all the accused. It is true that the name of
accused no.4 - Ramanbhai Bijalbhai Vasava was not mentioned
in the dying declaration, but the same, in our opinion, does not
make the entire version doubtful, since at the time of her
admission at the Civil Hospital, she had given the names of all
the accused and also given the history before Dr.Sureshnandan
Ramnarayan Yadav. It emerges from the evidence that when the
dying declaration of the deceased Lilaben was being recorded,
the Executive Magistrate - Dhanabhai Khalpabhai Vasava
(PW14) found her to be conscious and in a fit state of mind. The
Executive Magistrate - Dhanabhai Khalpabhai Vasava (PW14)
and Dr.Sureshnandan Ramnarayan Yadav (PW19) are
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independent witnesses and they have no reason to falsely
implicate the appellants-accused. The recording of the dying
declaration by the Executive Magistrate cannot be doubted since
we do not find any defect in the procedure adopted by the
Executive Magistrate in recording the dying declaration. Even,
the complaint given by the deceased Lilaben before PW17 - PSI
Shri Govindbhai Mansingbhai Rathwa also can be treated as the
dying declaration, which is consistent with the involvement and
the role of all the appellants-accused. It is noteworthy that if a
person, who suffered 100% burn injuries all over the body, gives
the dying declaration and if something here or there has been
missed/ignored to be mentioned while recording the dying
declaration, then the version narrated in the dying declaration
cannot be doubted, rather it can be said to be natural and
voluntary.
23. The principle on which the dying declaration is admitted in
evidence is indicated in the legal maxim "nemo moriturus
praesumitur mentire", i.e. a man will not meet his maker with a
lie in his mouth. The situation in which a person is on a
deathbed is so solemn and serene when he is dying, that the
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grave position in which he is placed, is the reason in law to
accept veracity of his statement. It is for this reason the
requirements of oath and cross-examination are dispensed with.
Besides, should the dying declaration be excluded it will result in
miscarriage of justice because the victim being generally the only
eye-witness in a serious crime the exclusion of the statement
would leave the court without a scrap of evidence. Though a
dying declaration is entitled to great weight, it is worthwhile to
note that the accused has no power of cross-examination. Such
a power is essential for eliciting the truth as an obligation of oath
could be. This is the reason the court also insists that the dying
declaration should be of such a nature as to inspire full
confidence of the court in its correctness. The court has to be on
guard that the statement of the deceased was not as a result of
either tutoring, or prompting or a product of imagination. The
court must be further satisfied that the deceased was in a fit
state of mind after a clear opportunity to observe and identify the
assailant. Once the court is satisfied that the declaration was
true and voluntary, undoubtedly, it can base its conviction
without any further corroboration. It cannot be laid down as an
absolute rule of law that the dying declaration cannot form the
sole basis of conviction unless it is corroborated. The rule
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requiring corroboration is merely a rule of prudence. The
Supreme Court has laid down, in several judgments, the
principles governing the dying declaration, which could be
summed up as under as indicated in Smt. Paniben vs. State of
Gujarat, reported in AIR 1992 SC 1817 :
(i) There is neither rule of law nor of prudence that
dying declaration cannot be acted upon without
corroboration. (Mannu Raja vs. State of M.P., [1976] 2
SCR 764).
(ii) If the Court is satisfied that the dying declaration
is true and voluntary it can base conviction on it, without
corroboration. (State of M.P. vs. Ram Sagar Yadav, AIR
1985 SC 416; Ramavati Devi vs. State of Bihar, AIR
1983 SC 164).
(iii) This Court has to scrutinise the dying declaration
carefully and must ensure that the declaration is not the
result of tutoring, prompting or imagination. The
deceased had opportunity to observe and identify the
assailants and was in a fit state to make the declaration.
(Ram Chandra Reddy vs. Public Prosecutor, AIR 1976
S.C. 1994).
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(iv) Where dying declaration is suspicious it should
not be acted upon without corroborative evidence.
(Rasheed Beg v. Sate of Madhya Pradesh, [1974] 4 SCC
264).
(v) Where the deceased was unconscious and could
never make any dying declaration the evidence with
regard to it is to be rejected. (Kake Singh vs. State of
M.P., AIR 1982 S.C. 1021)
(vi) A dying declaration which suffers from infirmity
cannot form the basis of conviction. (Ram Manorath vs.
State of U.P. (1981 SCC (Crl.) 531).
(vii) Merely because a dying declaration does not
contain the details as to the occurrence, it is not to be
rejected. (State of Maharashtra vs. Krishnamurthi
Laxmipati Naidu, AIR 1981 SC 617).
(viii) Equally, merely because it is a brief statement, it
is not to be discarded. On the contrary, the shortness of
the statement itself guarantees truth. (Surajdeo Oza vs.
State of Bihar, AIR 1979 SC 1505)
(ix) Normally the court, in order to satisfy whether
deceased was in a fit mental condition to make the dying
declaration, look up to the medical opinion. But where
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the eye witness has said that the deceased was in a fit
and conscious state to make this dying declaration, the
medical opinion cannot prevail. (Nanahau Ram and
another vs. State, AIR SC 912)
(x) Where the prosecution version differs from the
version as given in the dying declaration, the said
declaration cannot be acted upon. (State of U.P. vs.
Madan Mohan, AIR 1989 SC 1519).
24. Learned advocate Mr.Ramnandan Singh for the appellants-
accused submitted that it is evident from the record that the
deceased had received 100% Ist and IInd degree burn injuries all
over the body, then, in such a serious condition one could not be
able to even speak, which raises serious doubt about the dying
declaration. In support of his argument, Mr.Singh has placed
reliance on the decision of the Supreme Court in the case of
Umakant and another (supra). We have carefully gone through
and considered the said judgment. It appears that in the said
case, the Supreme Court found the dying declaration to be
tutored one and, therefore, by allowing the appeal, acquitted the
accused of that case from the charges levelled against them.
However, in the case on hand, it is not the case of the defence
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that the dying declaration seems to be tutored one. Rather, it is
argued that at the time of recording of the dying declaration, the
deceased might not be in a condition to give her statement due
to 100% Ist and IInd degree burn injuries all over the body. At
this juncture, it is noteworthy that both the treating doctor, i.e.
Dr.Sureshnandan Ramnarayan Yadav (PW19) and
Dr.Dilipkumar Kantilal Patel (PW18), who had examined the
deceased, in their evidence, clearly deposed that the deceased
was conscious and she herself narrated the history regarding the
incident.
25. Therefore, as discussed above, the dying declaration was
found to be trustworthy and even the version of the deceased
corroborates with the evidence of the eye-witness PW8 -
Savitaben Kanchanbhai Vasava. The facts narrated by the
deceased in the dying declaration are corroborated by the
evidence of the eye-witness PW8 - Savitaben Kanchanbhai
Vasava and PW17 - PSI Shri Govindbhai Mansingbhai Rathwa,
who recorded the complaint of the deceased Lilaben at 00:30
hours on 5.4.2013 at the hospital on the very day of the
incident.
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26. The judgment relied upon by learned advocate Mr.Singh in
the case of Umakant and another (supra) would be of no avail to
the present appellants-accused, because in that case, the dying
declaration was not inspiring confidence in the mind of the court
and raised serious doubt that the same was a product of
tutoring by the family members of the deceased, whereas, in the
case on hand, there is no defect in the dying declaration and the
same is found to be trustworthy. Therefore, in our considered
opinion, we found that the trial court committed no error and
has rightly convicted the appellants-accused for the offences
mentioned herein above.
27. The prosecution has also examined PW9 - Rupaben
Babubhai Vasava (Exh.31), who is the mother of the deceased
Lilaben. The evidence of this witness indicates that on the date
of the incident, she had gone to collect straw stubble for burning
and when she returned home, the incident had already
happened. She has deposed that Lilaben was already burnt,
however, she was able to speak. On her asking, Lilaben stated
that Dhanji, Dhaniben, Ramilaben, Haresh and Raman had
caught hold of her, Jitendra had poured kerosene on her body
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and Ranjit had set her ablaze by lighting a match-stick. She
further stated that thereafter Lilaben asked her uncle to take her
to hospital. This witness has identified all the accused before the
court. In her cross-examination, she has denied that when she
saw Lilaben, she was unconscious and was not able to speak.
28. The prosecution has also examined PW10 - Rakeshbhai
Babubhai Vasava (Exh.32), who is the brother of the deceased
Lilaben. In his deposition, he has stated that on 4.4.2013, he
was informed by one Manoj on his mobile-phone that something
has happened to her sister and, therefore, he rushed to the
home and found her sister Lilaben in a burnt condition. On
asking her, Lilaben stated that Jitendra had come with a can of
kerosene and Ramila, Haresh, Raman, Dhani had caught hold of
her and Ranjit had set her ablaze by lighting a match-stick. This
witness has further stated that the incident took place due to the
dispute regarding erection of 'kachcha' bath-room.
29. It is noteworthy that the evidence of both the above
witnesses, i.e. PW9 and PW10, corroborate with the evidence of
PW8 - Savitaben Kanchanbhai Vasava, who is the eye-witness to
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the incident. It also reveals from the evidence of both the
aforesaid witnesses that after the incident, the deceased was
able to speak and by naming all the accused, she clearly
narrated how the incident had happened.
30. The prosecution has examined PW-17 PSI Shri Govindbhai
Mansingbhai Rathwa (Exh.49), who recorded the complaint of
the deceased Lilaben, and after registration of the offence,
carried out the investigation. According to this witness, on
5.4.2013, in the early morning, he was on duty at the Jhagadia
Police Station, and on the basis of the 'wardhi' received from the
hospital, he visited the Bharuch Civil Hospital and recorded the
complaint of the deceased Lilaben who was admitted in a burns
ward, wherein she stated that at about 5:00 p.m. when she was
alone at her house, at that time, Jitendra, Ranjit, Haresh, wife of
Ranjit, their mother and Raman had come to her house and
started quarreling using abusive language, however, she did not
respond to it. Thereafter, at about 7:00 p.m. when she was alone
at her house, all the aforesaid persons had again come to her
house, therefore, she ran away towards the house of her aunt
Savitaben Kanchanbhai Vasava (PW8), but all the accused
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chased her, caught hold of her and pushed her on the floor.
Thereafter, Jitendra poured kerosene on her body and Ranjit set
her ablaze. This witness recorded the complaint as per the
narration of the complainant and obtained thumb impression of
her left hand as her right hand was covered with the bandages.
The complaint was produced at Exh.50. In his cross-
examination, the witness has stated that he recorded the
complaint at 00:30 hours on 5.4.2013. The evidence of this
witness clearly established that after receiving the 'wardhi', he
visited the hospital and recorded the complaint of the deceased
Lilaben at 00:30 hours on 5.4.2013, in which the deceased
narrated the entire incident.
31. The prosecution has also examined PW16 - Police
Inspector (SOG) Shri Pravinbhai Hatthabhai Chaudhary
(Exh.44), who carried out the initial investigation. It reveals from
his evidence that he had drawn the panchnama of the scene of
offence in presence of the panchas and collected the soil
containing kerosene from the scene of offence, controlled sample
of soil and also seized a plastic can of kerosene, a match-box
and a half-burnt blanket (rug), therefrom. This witness,
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thereafter, recorded the statement of the eye-witness PW8 -
Savitaben Kanchanbhai Vasava and PW9 - Rupaben Babubhai
Vasava and handed over the further investigation to PSI Shri
Govindbhai Mansingbhai Rathwa (PW17). He has produced the
panchnama of the scene of offence at Exh.13. It reveals from the
said panchnama that the incident took place in the house of
PW8 - Savitaben Kanchanbhai Vasava and from the back side of
her house, the half-burnt blanket (rug), a plastic can of kerosene
and a red colour match-box were found and seized in presence of
the panchas. It is true that the panchas have not supported the
case of the prosecution, however, the prosecution proved the
contents of the aforesaid panchanama through the deposition of
this witness, who is the author of the panchnama.
32. The prosecution has examined PW18 - Dr.Dilipkumar
Kantilal Patel (Exh.54), who is the surgeon and running a
hospital in the name of Vir Surgical Hospital at Bharuch. It
reveals from the evidence of this witness that on 11.4.2013 at
about 5:45 the deceased Lilaben Babubhai Vasava was brought
to and admitted in his hospital by her mother and brother and in
the history given by the deceased and her relative, it was stated
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that on 4.4.2013 at about 7:00 p.m., Jitendra Darji and
Ramilaben had poured kerosene and set her ablaze at the house
of PW8 - Savitaben Kanchanbhai Vasava at Vanthevad, Taluka
Jhagadia, District Bharuch. He has stated that the deceased
Lilaben, in earlier point of time, was admitted at the Bharuch
Civil Hospital since 4.4.2013 and was brought to his hospital on
11.4.2013 at about 5:45 by her relatives. According to him, the
condition of the patient was very serious and she succumbed to
the injuries on 14.4.2013 at about 2:00 a.m. Therefore, her body
was sent to the Civil Hospital for performing postmortem. He has
produced the medical certificate at Exh.55 and indoor case-
papers at Exh.56 in this regard. In his cross-examination, he
has denied that due to 95% burn injuries the patient was not in
a condition to give her statement. He has also admitted that he
had informed the police regarding admission of the patient in his
hospital.
33. The prosecution has examined PW11 - Dr.Vijay Motiram
Baviskar (Exh.33) who, along with Dr.B.K.Sharma, in panel,
carried out the postmortem of the deceased on 14.4.2013
between 6:15 p.m. and 7:15 p.m. He has given the details
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regarding the burn injuries present over the body of the
deceased Lilaben and stated that in their opinion the cause of
death was "Septicaemic shock due to I & II Extensive & Infective
Burn injury over body". In his cross-examination, he has
admitted that the deceased was having 100% Ist and IInd degree
burn injuries all over her body.
34. Having minutely considered the evidence; oral as well as
documentary and having gone through the evidence of the PW19
- Medical Officer Dr.Sureshnandan Ramnarayan Yadav, before
whom the deceased narrated the history; PW14 - Executive
Magistrate Shri Dhanabhai Khalpabhai Vasava, who recorded
the dying declaration of the deceased Lilaben Babubhai Vasava;
and PW17 - PSI Shri Govindbhai Mansingbhai Rathwa, who
recorded the complaint of the deceased at the hospital at 00:30
hours on 5.4.2013 along with the medical certificate at Exh.59
issued by Dr.Sureshnandan Ramnarayan Yadav on the very
same day, indoor medical papers at Exh.60, 'wardhi' for
recording dying declaration at Exh.40, dying declaration at
Exh.39 and the complaint of the deceased recorded by PSI Shri
Govindbhai Mansingbhai Rathwa, in our considered opinion, the
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involvement of all the appellants-accused in the commission of
the offence is clearly established.
35. We are, therefore, of the view that the trial court was
justified in coming to the conclusion that the appellants-accused
are involved in the commission of the offence.
36. It appears from the judgment of the trial court that the trial
court convicted all the appellants-accused under Section 302
read with Section 114 of the IPC.
37. Section 114 of the IPC deals with the principles of
abetment, which involves encouraging, aiding or instigating the
commission of offence. In the case of Sanju @ Sanjay Singh
Sengar vs. State of Madhya Pradesh, reported in (2002) 5
SCC 371, the Supreme Court defined the term 'abet', meaning
thereby "to aid, to assist or to give aid, to command, to procure,
or to counsel, to countenance, to encourage, or encourage or to
set another one to commit". If a person is present who, if absent,
would have been liable to be punished as an abettor, is deemed
under Section 114 of the IPC to have committed the crime. The
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meaning of the section is that, if the nature of the act done
constitutes abetment, then if present, the abettor is deemed to
have committed the offence, though in point of fact another
person actually committed it.
38. As evident from the record, on the date of the incident, all
the accused had come to the house of the deceased Lilaben at
about 5:00 p.m. when she was alone at her house and quarreled
with her using abusive language. Thereafter, at about 7:00 p.m.
all the accused had again come to the house of the deceased and
at that time the accused no.1 was carrying a can of kerosene.
Knowing-fully well this fact, all the appellants-accused had come
to the house of the deceased Lilaben and started quarreling with
her and tried to caught hold of the deceased, therefore, Lilaben
ran to the house of her aunt Savitaben and all the appellants-
accused chased her and thereafter the accused nos.3 to 6 caught
hold of Lilaben; meaning thereby, they restricted the movement
of the deceased Lilaben, and at that time, the accused no.1 had
poured kerosene on her body and the accused no.2 had set her
ablaze by lighting a matchstick. Thus, the presence and
participation of all the accused in the offence is established.
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Therefore, in our opinion, the ingredients of Section 114 of the
IPC are clearly attracted and the trial court was justified in
convicting the accused-appellants for the offence punishable
under Section 302 read with Section 114 of the IPC.
39. On the overall appreciation of the entire materials on
record, we find that the prosecution has proved the case of
murder beyond reasonable doubt by production of evidence of
the eye-witness, who is none other than the aunt of the deceased
Lilaben along with the evidence of PW8 - Savitaben Kanchanbhai
Vasava, PW19 - Dr.Sureshnandan Ramnarayan Yadav, PW18 -
Dr.Dilipkumar Kantilal Patel, PW14 - Executive Magistrate Shri
Dhanabhai Khalpabhai Vasava and PW17 - PSI Shri Govindbhai
Mansingbhai Rathwa. We do not find any reason to disbelieve
such evidence. The appeal is, thus, devoid of any merits and is
accordingly dismissed. The judgment and order of conviction
dated 15th March 2016 rendered by the learned 6 th Ad-hoc
Additional Sessions Judge, Ankleshwar, District Bharuch, in the
Sessions Case No.123 of 2013 is hereby confirmed. Bail bond, if
any, stands cancelled. Records and proceedings be sent back.
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40. In view of the judgment passed in the main Criminal
Appeal itself, the applications seeking suspension of sentence
would not survive and the same are disposed of accordingly.
(A. S. SUPEHIA, J.)
(VIMAL K. VYAS, J.)
After the pronouncement of the judgment, learned
advocate Mr.Ramnandan Singh for the appellants-accused has
submitted that some of the accused persons are on bail and
since the appellants-accused want to prefer an appeal before the
Supreme Court, he requested that four weeks' time may be
granted.
The request appears to be reasonable and is acceded to.
The appellants-accused are granted four weeks' time to
surrender.
(A. S. SUPEHIA, J.)
(VIMAL K. VYAS, J.)
/MOINUDDIN
