[Cites 4, Cited by 0]
Gujarat High Court
Bajiben Prabhatbhai Parmar vs State Of Gujarat on 13 March, 2026
Author: Ilesh J. Vora
Bench: Ilesh J. Vora
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 702 of 2013
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE ILESH J. VORA
and
HONOURABLE MR. JUSTICE R. T. VACHHANI
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Approved for Reporting Yes No
✓
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BAJIBEN PRABHATBHAI PARMAR
Versus
STATE OF GUJARAT
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Appearance:
MR VIJAY H PATEL FOR HL PATEL ADVOCATES(2034) for the Appellant.
MR BHARGAV PANDYA APP for the Opponent(s)/Respondent No. 1
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CORAM:HONOURABLE MR. JUSTICE ILESH J. VORA
and
HONOURABLE MR. JUSTICE R. T. VACHHANI
Date : 13/03/2026
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE R. T. VACHHANI)
1. Feeling aggrieved and dissatisfied with the judgment and order of
conviction and sentence dated 22.11.2012 passed by the learned 2nd
Additional Sessions Judge, Panchmahal at Godhra in Sessions Case
No.161 of 2009 for the offences punishable under Section 302 of the
Indian Penal Code, whereby the appellant-accused has been sentenced
for the offence punishable under Section 302 of the IPC to undergo
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imprisonment for life with fine of Rs.500/-, in default, to undergo six
months RI, the appellant has preferred the present appeal under Section
374 of the Code of Criminal Procedure, 1973 ("the Code" for short).
2. The brief facts leading to the filing of the present appeal are as
under:
2.1 Deceased-sister of the complainant - Rayliben had some
altercation with Surekhaben-daughter of Rameshbhai Bhagwanbhai
Parmar's wife with regard to picking up of the cotton irrigated in the
agricultural field of the accused on 30/06/2009 and by keeping grudge
over the said dispute and with an intention to commit murder of Rayliben,
on 30/06/2009 at about 10:00 p.m., while the deceased- Rayliben was
sleeping on the cot outside her house at Village Vatvatiya, Tal.
Lunawada, Dist: Panchmahal, at that time, the accused brought kerosene
in the steel vessel alongwith match-stick box and thereafter poured the
same on the deceased and ignited her with match-stick resulted into burn
injuries on the hands, leg and stomach and on her private part who
succumbed to the said injuries on 11/07/2009 at 23:00 hours during the
treatment at Godhra Civil Hospital. Thus, the accused committed the
offence punishable under Section 302 of the IPC.
2.2 Accordingly, FIR being CR No.82 of 2009 came to be registered
with Kothamba Police Station. The Police after investigation charge-
sheeted the accused for the aforesaid offences before the learned JMFC,
Court. However, as the said Court lacks jurisdiction to try offence under
Section 302 IPC, the case was committed to the Sessions Court. On
conclusion of evidence on the part of the prosecution, the learned
Sessions Court put various incriminating circumstances appearing in the
evidence to the respondent-accused so as to obtain explanation/answer as
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provided under Section 313 of the Code. In the further statement, the
respondents-accused denied all incriminating circumstances appearing
against them as false and further stated that she is innocent and a false
case has been filed against her. After examining the evidence, witness
testimonies and submissions from both sides, the learned Sessions Court
recorded the finding convicting the respondent-accused.
3. We have heard Mr.Vijay H Patel, learned Advocate for HL Patel
Advocates for the appellant - convict and Mr.Bhargav Pandya learned
APP for the respondent-State and minutely examined oral and
documentary evidence adduced and produced before the learned Sessions
Court concerned.
4. Learned advocate Mr.Patel appearing for the appellant- accused
has submitted that the prosecution has failed to prove its case beyond the
reasonable doubt and therefore, learned Sessions Court has erred in
convicting the appellant - accused. He would further submit that though
the husband of the deceased was very well available, but he did not
register the complaint and it was given by the Sarpanch who happens to
be the cousin of the deceased. He would further submit that daughter of
the deceased who was also sleeping next to the deceased has not been
examined in spite of the fact that she did not receive any burn injuries.
4.1 Learned advocate Mr.Patel for the appellant while referring to the
medical evidence would submit that as per evidence of PW 16 - Dr.
Ramesh Kalasva who gave primary treatment to the deceased at
Lunawada Hospital states that the injuries sustained on the deceased does
not seem to be injuries sustained as a result of burn and no curd was
found on the body of the deceased which fact is contradicted with the
statement of the husband of the deceased who has been examined as PW
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7 stated that he applied curd on the body of the deceased after the
incident. It is further submitted by learned advocate for the appellant -
accused that though deceased sustained burn injuries by poring kerosene;
however during physical examination of the deceased and her husband by
the Doctor who is examined as PW No.16 denies the smell of kerosene on
the body of the deceased as well as the husband and thus the evidence of
PW No.7 comes under the shadow of doubt and cannot be accepted.
4.2 Learned advocate Mr.Patel for the appellant has submitted that if
the evidence of PW No.6 who is Executive Magistrate examined at
Exh.92 recorded the dying declaration of the deceased had not taken any
endorsement of the Doctor as to whether the deceased was in fit state of
mind or not for recording dying declaration and thus the credibility of the
dying declaration is doubtful. He would further submit that if the
Panchnama of the place of the incident at Exh.35 is seen, it shows that
there was no smell of kerosene on the ground and thus the prosecution
has not proved its case beyond all reasonable doubt.
4.3 Learned advocate Mr.Patel for the appellant - accused would
submit that considering the infirmities and contradictions in the evidence
so adduced by the prosecution, the learned Sessions Court has committed
a grave error in recording the conviction of the appellant - accused. By
making the above submissions, learned advocate for the appellant -
accused would submit to allow this appeal and to quash and set aside the
judgment and order of conviction and sentence.
5. Mr.Bhargav Pandya, learned APP appearing for the respondent -
State submits that the impugned order of conviction and sentence does
not require to be interfered with as the learned Sessions Court has after
thorough appreciation of evidence has come to the conclusion and
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recorded the conviction of the appellant - accused on the basis of the
evidence adduced before the Court. It is further submitted that the
evidence produced on record proves the involvement of the accused in
the commission of crime in question. He has further submitted that
evidence of the witnesses examined before the Court has supported the
case of prosecution and narrated the incident as it was happened. It was
submitted that no such omission or contradiction in the evidence of the
said witnesses have come on record to discard their evidence. He has
further submitted that the prosecution witnesses have deposed before the
Court narrating the entire chain of sequence whereby the involvement of
the accused is proved which corroborates with the scientific evidence
produced and proved by the prosecution and therefore, the judgment and
order of conviction and sentence may not be interfered with.
6. Heard Mr.Vijay H Patel, learned Advocate for HL Patel Advocates
for the appellant - convict and Mr.Bhargav Pandya learned APP for the
respondent-State and perused the deposition of witnesses as also
documentary evidence placed on record as well as the order passed by the
learned Sessions Court.
7. At the outset, if the facts of the case on hand is examined, it would
appear that deceased-sister of the complainant-Rayliben had some
altercation with Surekhaben - daughter of Rameshbhai Bhagwanbhai
Parmar's wife with regard to the picking up of cotton irrigated in the
agricultural field of the accused on 30/06/2009 and by keeping grudge
over the said dispute and with an intention to cause murder of Rayliben
on 30/06/2009 at about 10:00 p.m., while the deceased-Rayliben was
sleeping on the cot outside her house at Village Vatvatiya, Tal.
Lunawada, Dist: Panchmahal, at that time, the accused brought kerosene
in the steel vessel alongwith match-stick box and poured on the deceased
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and ignited her with match-stick which resulted into burn injuries on the
hands, leg and stomach and on her private part and succumbed to the said
injuries.
8. In background of the above facts, if the evidence adduced by the
prosecution is re-appreciated, PW No.1 - Kalubhai Magabhai examined
at Exh.10 is examined, he has deposed in his testimony that incident of
Rayliben took place in the seventh number of month; and he came to
know through his brother-in- law that Rayliben got burnt; on the next
day, he went to Godhra Civil Hospital and since her sister was admitted
in the Civil Hospital and upon inquiry as to what had happened, she told
that her sister-in-law-Bajiben poured kerosene on her and ignited with
match-stick and therefore, she got burnt. This witness has thereafter gone
to Kothamba and gave complaint. This witness has deposed that having
asked about the cause of incident, Rayliben stated to him that due to
picking up of cotton by the children, the grudge was kept and by pouring
kerosene, deceased was ignited with match-stick by Bajiben.
This witness has been cross-examined by the other side; however
nothing sort of any such material to disbelieve this evidence has come on
record. In fact, the cause of incident is of picking up of cotton by
children and by keeping grudge over the said dispute, accused poured
kerosene and ignited with match-stick to the deceased where she
succumbed to the said burn injuries. Thus, the evidence of the
complainant clearly supports the case of prosecution and nothing to the
contrary has come on record.
9. PW No.5-Raghabhai Hirabhai Zala, has been examined at Exh.16.
This witness has deposed in his testimony that deceased-Rayliben is his
sister-in-law and she got married with one Rameshbhai. This witness has
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deposed in his testimony that incident took place on 30/06/2009 and on
the day of incident, he was at his home and at 10:00 p.m. Bharsinh,
Sarpanch had come to his house and told that Rayliben got burnt and
therefore, she was to be taken to dispensary and thus he alongwith his
wife - Kankuben reached at 108 Ambulance which consisted of this
witness and his wife, Rayliben, Divaben and Rameshbhai and took
Rayliben at Lunavada Dispensary and there-from she was taken to
Godhra Hospital where she was admitted. Rayliben got burnt injuries on
her chest, hands and legs. In the car, Rayliben stated to this witness that
her sister-in-law - Bajiben got her burnt after pouring kerosene over her.
Rayliben stayed alive for ten-twelve days.
This witness has been cross-examined by the defence; however
nothing sort any such material to discard the evidence of this witness has
come on record. Witness has admitted that they all went to Lunawada
Cortege Hospital where after giving treatment, Rayliben was referred to
the Godhra Civil Hospital and she was admitted in the Burns Ward of
Godhra Civil Hospital. Thus, from the evidence of this witness, the case
of prosecution that after the deceased got burns injuries, she was taken to
Lunawada Hospital where-from she was taken to Godhra Civil Hospital is
proved.
10. PW No.6 - Shri Ajaykumar Shah, Executive Magistrate, is
examined at Exh.18. This witness has deposed in his testimony that on
01/07/2009, he was serving as Deputy Mamlatdar and Executive
Magistrate and at 2:00 a.m., in the night, he received a Yadi from Godhra
Town Police Station for Diary No.2 of 2002 & Janvajog Entry No.29 of
2009 to record dying declaration of victim - Rayliben Rameshbhai
Parmar, resident of Mochvadiya, admitted for treatment in the Burns
Ward, Civil Hospital, Godhra. This witness has further deposed that on
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receipt of Police Yadi alongwith opinion of Doctor, he went to Burns
Ward of Civil Hospital, Godhra in the Police Van where he inquired
about Rayliben and relatives of Rayliben got him introduced with her.
Thereafter, the relatives were sent outside and he started recording of
dying declaration. He started recording of dying declaration at 2:10 a.m.
and patient told her name as Rayliben and upon asked her as to what had
happened, she stated that she got burnt. Upon asked her as to how did the
incident took place, she stated that yesterday night she had some
altercation / quarrel with Bajiben Prabhatbhai and therefore, at about
10:00 to 10:30 hours, while she was sleeping Bajiben came, poured
kerosene on her, ignited with match-stick and left. Thereafter, after going
Lunawada Hospital, she was brought to Godhra Hospital. She got burnt
on the legs and on chest. Thereafter, having asked to anything more, she
stated that she does not want to say anything more. Dying declaration
being read over and left hand thumb impression was taken on it and
original dying declaration was produced at Exh.19. The proceedings for
recording of dying declaration was completed on 2:30 p.m.
This witness has been cross-examined by the defence; however
nothing sort any such material to disbelieve the evidence of this witness
has come on record. During the cross-examination, this witness has
admitted that while going from his residence to Civil Hospital, no such
talks were taken place with the Police and he was alone in the burns
ward. This witness has admitted that it is true that on the dying
declaration at Exh.19, the signature of the Doctor was not taken and this
witness has himself stated that while recording dying declaration, the
doctor was not called at that place since the patient was conscious. It is
true that it is not stated to him by any of the Doctor that patient was
capable of being given dying declaration. Witness has identified the Yadi
received by him at Exh.20.
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Thus, from the evidence of this witness, the prosecution has proved
that declarant was conscious while giving her dying declaration and the
witness himself was satisfied that patient was conscious to give her dying
declaration and therefore Doctor was not called for. It was proved that
patient was in fit state of mind to record dying declaration as the
Executive Magistrate, who recorded the dying declaration was satisfied
with the fact of declarant being conscious and in fit state of mind to
record dying declaration.
11. PW No.7-Rameshbhai Bhagvanbhai Parmar, husband of the
deceased is examined at Exh.22. This witness has deposed in his
testimony that incident took place at 10:00 p.m. on 30/06/2009 and he
was alone at that time and were sleeping alongwith his daughter, at that
time, Baijiben (accused) sister-in-law of his uncle brought kerosene in
steel utensil, poured on his wife and ignited her and, while accused was
leaving, his daughter - Surekha suddenly started screaming and therefore,
he was awaken. Bajiben was carrying steel utensil and he found her
running and his wife was burning. This witness tried to douse his wife
and after dousing his wife, he went to house of Bhemabhai Rupabhai and
asked to call for 108 Ambulance and thereafter this witness went to house
of Suryaben and brought curd and applied on the body of his wife as she
was feeling sensation due to burn injuries. This witness has further
deposed that thereafter they all initially went to Lunawada Hospital
where-from they went to Godhra Civil Hospital where she was admitted.
This witness has deposed that cause of incident is that the daughter of this
witness picked up the cotton from the field of the accused and therefore,
she abused her. This witness has further deposed that when he, Divanben,
Kankuben, Radhabhai asked Rayliben about the incident, she stated that
she was burnt by Bajiben by pouring kerosene on her.
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This witness has been cross-examined by the defence; however
nothing sort of any such material to discard his evidence has come on
record. The presence of this witness at the scene of incident is natural as
he was the husband of the deceased and witness had himself seen the
accused running away carrying utensil and in presence of other when this
witness asked the deceased about the incident, she herself stated that she
was burnt by Bajiben after pouring kerosene on her. The prosecution has
proved from the evidence of this witness the factum of accused was
present at the scene of offence at the time of commission of crime and
running away after committing a crime carrying in her hand the steel
utensil.
12. PW No.20 - Indrasinh Arjunsinh, Unarmed Head Constable, has
been examined at Exh.58. This witness has deposed in his testimony that
on 01/07/2009, he was serving as Head Constable at Kothamba Police
Station and on that date, Janvajog Entry No.29 of 2009 came to be
registered. This witness has further deposed that he recorded the
statement of the victim-Rayliben Rameshbhai Parmar and her husband
Rameshbhai and further investigation was handed over to PSI.
Rayliben Rameshbhai stated that she was living at the above stated
address and in regards to commission of offence, she stated that her
daughter came at 11:00 O'clock from the school at that time her sister-in-
law, Bajiben Prabhatbhai, who resides in front of her house and her
husband's elder brother's wife (jethani), had an altercation with her
alleging that her daughter, Surekha had picked up the cotton and in
response thereto, she stated that what can be done as her daughter denied
to do so. She has further stated that at about 10:00 O'clock in the night
while she alongwith her husband and children total four persons were
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sleeping in the courtyard of the house whist her daughter - Surekha was
sleeping nearby her at that time, her sister-in-law, Bajiben carrying steel
utensil containing kerosene and match-stick came there and without
saying anything poured kerosene on her and ignited with match-stick and
therefor, Chaniyo and blouse worn by her got ignited and she therefore,
started screaming where her husband and daughter Surekha got awaken
and Bajiben ran away. She has further stated that her husband doused the
fire; but she got burnt on both the legs, thigh portion and private part and
on the stomach portion. She has further stated that since her husband tried
to douse her, he also got burnt on right hand and right side chest. She has
further stated that her sister-in-law Bajiben went away after igniting her,
Suryaben Kantibhai Jesingabhai Parmar and Kankuben Radhabhai
Parmar Zala came and after some time Bhemabhai Rupabhai Parmar
called for 108 Ambulance and she alongwith her husband went to
Lunavada Cottage where treatment was given to her and her husband and
thereafter she was referred to Godhra Civil Hospital for treatment. She
stated that her Chaniyo was completely burnt.
PW No.20- Indrasinh had recorded the above statement of the
victim for the first time after registration of Janvajog Entry wherein she
has clearly stated about the cause of incident and the manner in which the
entire incident took place, as also stating that how the accused came,
poured the kerosene, ignited with match-stick and thereafter ran away
from the spot. Thus, from the evidence of this witness who recorded the
statement of the victim the involvement of the accused is proved.
13. PW No.15 - Dr. Kamlesh Shivnandan Prasad has been examined at
Exh.44 who had conducted the postmortem of the body of the deceased.
This witness has deposed in his testimony that he conducted the
postmortem of the deceased and as per opinion of this witness, the cause
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of death of the deceased was septicemic shock due to burn. This witness
has further deposed that if the kerosene is poured and ignited with
matchstick on any of the person; then the injuries stated in column no.17
of the postmortem report can be caused and the said injuries are sufficient
to cause death. This witness has further deposed that burn injuries are of
second degree.
14. In light of the above evidence re-appreciated by this Court, the
undisputed facts emerging from the record are that (i) there was a dispute
with regard to picking up of a cotton from the agriculture field of the
accused by daughter of the deceased to which some altercation took place
(ii) in furtherance thereof by keeping grudge over the said dispute, the
accused went to the house of the deceased taking steel utensils containing
kerosene and match-stick and after pouring the same ignited her with
match-stick and thereafter left away from the spot (iii) while the deceased
got burnt she started screaming and her husband got awaken and tried to
douse his wife and saw the accused running away from the spot (iv) while
husband of the deceased doused the fire on his wife, he also got burnt
injuries (v) while the deceased was taken to the hospital in the 108
Ambulance she had stated that Bajiben poured kerosene on her and
ignited with match-stick.
15. Thus, the entire sequence of incident is proved from the evidence
of the witnesses examined before the Court, more particularly, the cause
of incident, presence of accused at the spot prior to and running away
from the spot after the incident is proved from the aforesaid evidence and
learned Sessions Judge has rightly believed the same while convicting the
appellant - accused.
16. Now, insofar as the credibility and trustworthiness of the dying
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declaration is concerned, the argument of the learned advocate for the
appellant that since it was recorded by the Executive Magistrate and he
did not obtain the endorsement of the Doctor as to whether the declarant
was in fit state of mind or not; it cannot be believed as a sole piece of
evidence to record the conviction.
17. At this juncture, it would be apt to refer to the decision of the
Hon'ble Apex Court in the case of Poonam Bai vs. The State Of
Chhattisgarh rendered in Criminal Appeal No.903 of 2018, more
particularly, paragraph 10 thereof which is quoted as under:
"10. There cannot be any dispute that a dying declaration can be
the sole basis for convicting the accused. However, such a dying
declaration should be trustworthy, voluntary, blemishless and
reliable. In case the person recording the dying declaration is
satisfied that the declarant is in a fit medical condition to make the
statement and if there are no suspicious circumstances, the dying
declaration may not be invalid solely on the ground that it was not
certified by the doctor. Insistence for certification by the doctor is
only a rule of prudence, to be applied based on the facts and
circumstances of the case. The real test is as to whether the dying
declaration is truthful and voluntary. It is often said that man will
not meet his maker with a lie in his mouth. However, since the
declarant who makes a dying declaration cannot be subjected to
cross-examination, in order for the dying declaration to be the sole
basis for conviction, it should be of such a nature that it inspires
the full confidence of the court. In the matter on hand, since Exh.
P2, the dying declaration is the only circumstance relied upon by
the prosecution, in order to satisfy our conscience, we have
considered the material on record keeping in mind the
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wellestablished principles regarding the acceptability of dying
declarations."
(emphasis supplied)
18. Keeping in mind the aforesaid legal position, if the evidence in
regards to dying declaration in the case on hand is seen, the dying
declaration was recorded by PW No.6-Mr.Ajaykumar, Executive
Magistrate, after following all due process as stated by him in his
evidence and during the course of cross-examination, the witness has
himself has stated and admitted that while recording the dying declaration
of the patient, since the patient was conscious, the doctor was not called
at the spot. Thus, PW No.6 was fully satisfied about the factum of patient
being fit state of mind to give dying declaration and therefore, it was not
necessitated by him to call for the Doctor. Furthermore, the evidence of
this witness gets corroborated with the evidence of PW No.20-Indrasinh
Arjunsinh, Unarmed Head Constable, who firstly recorded the statement
of the victim after registration of the Janvajog Entry No.29 of 2009
wherein also the deceased victim had narrated the manner in which the
incident took place and the entire sequence. Both the piece of evidence
i.e. statement given by the deceased - victim before the PW No.20 and
dying declaration recorded by PW No.6 gets corroborated showing the
involvement of the accused and no inconsistencies are found therein
which would render the dying declaration as unreliable piece of evidence.
19. Thus, from the aforesaid discussion made in consonance with the
re-appreciation of the evidence, the factum of the events took place prior
to and post the incident as narrated by the deceased while she was
admitted in the hospital, as also by her husband who in turn had disclosed
the said fact before the complainant, as well as, the fact recorded in the
form of dying declaration by the deceased before the Executive
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Magistrate who was satisfied about the fitness of the deceased being in fit
state of mind to give dying declaration conclusively proved that there are
consistency amongst the witnesses in regards to stating of the fact of
occurrence of the incident and no such inference can be drawn raising any
doubt on credibility of the evidence examined before the Court and thus
the prosecution has proved its case beyond all reasonable doubt and no
interference is required to be made in the finding arrived at by the learned
Sessions Court.
20. In light of the above reasons, this Court does not find any
substance in the appeal. The appeal must fails and is accordingly
dismissed while confirming the judgment and order of conviction and
sentence dated 22.11.2012 passed by the learned 2nd Additional Sessions
Judge, Panchmahal at Godhra in Sessions Case No.161 of 2009. The
appellant - accused is directed to surrender before the Jail authority
concerned within a period of six weeks from today.
Records and Proceedings, if any, be remitted to the Court
concerned forthwith.
(ILESH J. VORA,J)
(R. T. VACHHANI, J)
sompura
