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Judgment
A.L. Dave, J.—Appellant - JaleelAhmed Badruddin Ansari is convicted by City Sessions Court, Ahmedabad by judgment dated 18.11.2005 rendered in Sessions Case No. 288 of 2004 for the offence of murder of his divorced wife Zahidabibi allegedly committed by him on 9.4.2004 at about 22-00 hours at his residence situated at Munir Sheth Tekra, Nr. Shaking Minarets, Gomtipur, Ahmedabad by setting her to fire after pouring kerosene on account of domestic disputes.
The appellant''s another wife Raisabanu was also arraigned as accused No. 2 and came to be acquitted by the trial Court.
Deceased Zahidabibi was taken to LG Hospital where she gave the history to the Doctor stating that her husband i.e. the appellant poured kerosene on her and set her to fire with a matchstick. The neighbours rescued her and she was brought to hospital by Zareenaben. This history was recorded in the medical case papers by the Doctor. Police was informed. On arrival of the police, arrangements were made for recording dying declaration by summoning Executive Magistrate and FIR was also taken. The deceased had suffered approximately 93% burns. The Executive Magistrate, upon receiving the Yadi, came to the hospital and recorded dying declaration, and, on the basis of the FIR recorded by the police, offence was registered, investigated and charge-sheet came to be filed in the Court of Metropolitan Magistrate. The case was then committed to the Court of Sessions and numbered as Sessions Case No. 288 of 2004. Charge was framed at Exh.2 against the appellant for offences punishable under Sections 302, 323, 284(B) and 114 of IPC, to which both the accused persons pleaded not guilty and claimed to be tried.
The prosecution case mainly depends on three dying declarations. One in the form of history given to the Doctor and reduced into writing in making the medical case papers. The second being the dying declaration recorded by the Executive Magistrate and the third being the FIR recorded by the police. In all the three dying declarations, the deceased has implicated the appellant.
Learned advocate Mr. Umoth appearing for the appellant submitted that the deceased had suffered about 93% burns and she could not have, therefore, given the history or the dying declaration or the FIR and, therefore, all the three dying declarations are concoctions. He submitted further that the deceased died of septicaemia after six days and, therefore, the appellant cannot be convicted for murder. Lastly, it was submitted that since death has not occurred immediately and the cause of death is septicaemia and not the burn injuries directly, the appellant''s case may be considered for being altered to conviction u/s 304 of IPC.
Learned APP Mr. Mengdey has opposed the appeal. According to him, the three dying declarations are consistent with each other. There is no lacuna in the procedure of recording the dying declaration and, therefore, the trial Court was justified in convicting the appellant.
We have examined the record and proceedings in the context of rival submissions.
Dr. Prashant Yadav is examined at Exh.45. He states that the deceased was brought to him at the LG Hospital. She had suffered burns of about 93%, but she was conscious and oriented. He states that the patient herself gave the history of the case where she stated that her husband set her to fire after pouring kerosene. He states that he had reduced the same into writing in making the case papers. Those case papers are at Exh.46. It emerges from his evidence that Fortwin injection was recommended to the deceased, but he was not sure as to when that injection was administered. According to him, it is not always correct that pain-killer would cause drowsiness. It would depend on the nature of the pain-killer.
Mr. Umoth contended that where the patient suffered 93% burns and Fortwin injection was administered, she could not have given either the history to the Doctor or the dying declaration before the Executive Magistrate or the FIR to the police.
It is, however, difficult to accept this contention for the reason that the Doctor in his deposition has clearly stated that the patient was conscious and oriented when she was brought to the hospital with 93% burns. He accepts that Fortwin injection was prescribed to be administered after recording of the dying declaration, but he could not say as to when it was administered. In absence of any contrary material, it can be safely inferred that the instructions of the Doctor would be followed strictly by the nursing staff and, therefore, Fortwin injection must have been administered after recording of the dying declaration by the Executive Magistrate.
Apart from this, if the evidence of the Executive Magistrate Mr. Manjibhai Mandli (Exh.18) is seen, he states that, upon receiving the Yadi, he went to the hospital and obtained opinion of the Doctor. He himself also verified and was satisfied that the deceased- declarant was conscious and oriented and then he recorded the declaration. He states that after recording the dying declaration he obtained endorsement of the Doctor about consciousness of the patient and then put his signature on it. Dying declaration (Exh.20), if seen, would again implicate the appellant of having poured kerosene and set the deceased to fire.
FIR (Exh.32) was recorded by Investigating Officer, PSI Kiritbhai Pandya (Exh.31). He recorded the FIR as stated by the patient. His deposition, if seen, would also show that the deceased was found to be conscious and in a fit state of mind.
We, therefore, have three pieces of evidence; one in the form of an oral dying declaration before the Doctor which the Doctor reduced into writing by way of medical history; the second in the form of a dying declaration before the Executive Magistrate and the third in the form of an FIR. All these documents are consistent with each other so far as implication of the appellant is concerned. There is nothing to doubt the genuineness of these documents and the procedure followed in recording the same. These three documents clearly implicate the appellant for the murder of his divorced wife Zahidabibi and the evidence leaves not even an iota of doubt in our mind about involvement of the appellant in the offence. The trial Court was, therefore, justified in convicting the appellant for the offence of murder of his divorced wife.
Learned advocate Mr Umoth relied on the decision in the case of Smt. Laxmi Vs. Om Prakash and Others, particularly Headnote (A), where it is observed that the Court should be satisfied before accepting the dying declaration that the deceased was in fit state of mind and capable of making statement at the time when dying declaration was made and/or recorded. As discussed above, the evidence is strong and good enough to satisfy the conscience of the Court that the deceased was in a fit state of mind and capable of making the statement as the same has been duly certified by the Doctor and verified by the Executive Magistrate himself before recording the dying declaration.
Mr. Umoth then relied on the decision of this Court in the case of State of Gujarat Vs. Dahyabhai Jasing and Another, He placed much reliance on the observations made in paras 15 and 18 of the said judgment where it was observed thus:
However, looking to the medical evidence found on record, more particularly when the burn injury of deceased Savitaben was to the extent of 95% to 100% and it was first and second degree burns, it can hardly be believed that deceased Savitaben was in conscious state of mind to give such statements. One can also be led to believe that because of the earlier quarrels between the deceased Savitaben and Ramilaben, she might have involved Ramilaben and her husband Dahyabhai.
14.1 In the instant case, we may observe that nothing is left to drawing any imagination or inference as there is positive evidence of the Executive Magistrate and the Doctor who say that the patient was conscious when the dying declaration was recorded and, therefore, this judgment cannot be of much help to the appellant. In that case, the concerned Doctor was not examined by the prosecution. The Court went on to observe that the dying declaration recorded by Dr Mevada creates doubt and suspicion and though he is an independent witness and no grudge against the respondents-accused, it is difficult to accept this dying declaration and his statement which would lead the Court to believe that the respondents-accused have committed crime. In the present case, the situation is quite different. We have cogent evidence in the form of deposition of the Executive Magistrate and the Doctor who say that despite 93% burns, the deceased was conscious and was able to give the dying declaration.
Mr. Umoth then relied on the decision in the case of Ganga Dass alias Godha Vs. State of Haryana, particularly the observations made in para 6 where the Apex Court gave benefit to the appellant of altering the conviction from Section 302 to Section 304 Part-II of IPC. In that case, only one blow was given by the appellant on the head and the deceased died after 18 days due to septicaemia. In the instant case, the burns injuries to the extent of 93% caused to the deceased by the appellant cannot be equated with a single blow in a given situation. The judgment, therefore, cannot be of any help to the appellant.
Mr. Umoth also relied on the decision in the case of B.N. Kavatakar and Another VS. State of Karnataka, 1994 Supp (1) SCC 304 In that case, the injuries were caused with lethal weapons. The Medical Officer, who conducted the post-mortem of the dead body, opined that the death was the result of septicaemia secondary to injuries and peritonitis. On overall scrutiny of the facts and circumstances of the case and the opinion of the Medical Officer, a view was taken that the case would be punishable u/s 326 read with Section 34 of IPC. In the instant case, the injuries are to the extent of 93%. In the case of Kavatkar above, what was the nature of injuries was not known and we are of the view that the decision cannot be applied to the facts of the present case.
The resultant effect of the foregoing discussion is that the trial Court was justified in convicting the appellant for the offence of murder of his former wife, Zahidabibi, by pouring kerosene and setting her to fire. We do not find any merit in the appeal. The appeal must fail and stands dismissed. The judgment and order dated 18.11.2005 of the City Sessions Court, Ahmedabad in Sessions Case No. 288 of 2004 is hereby confirmed.