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Judgment
J.C. Upadhyaya, J.—Eight accused persons consisting of one family came to be tried by learned Additional Sessions Judge, Amreli in Sessions Case No. 105 of 1995 for the offences punishable under Sections 147, 148, 149, 498A and 302 of the Indian Penal Code (''IPC'', for short) and at the end of the trial, the original accused Nos. 3,5,6,7 and 8 came to be convicted for the offences punishable under Sections 147, 148, 498A, 302 read with Section 149 of the IPC and each of them came to be sentenced to undergo life imprisonment and fine of Rs. 200/- and in default of payment of fine, R.I for one month for the offence punishable u/s 302 r/w. Section 149 of the IPC and R.I for one year and fine of Rs. 500/- and in default of payment of fine, R.I for three months for the offence punishable u/s 498A r/w. Section 149 of the IPC. No separate order of sentence for the offences punishable under Sections 147 and 148 of the IPC was passed. They challenged their conviction by preferring Criminal Appeal No. 766 of 2004.
The original accused Nos. 1, 2 and 4 in the aforesaid case at the end of the trial came to be convicted for the offence punishable u/s 498A r/w. Section 149 of the IPC and each of them was sentenced to undergo R.I for one year and fine of Rs. 500/- and in default of payment of fine, R.I for three months for the offence punishable u/s 498A r/w. Section 149 of the IPC. They were acquitted of the offence punishable u/s 302 r/w. Section 149 of the IPC. They challenged their conviction by preferring Criminal Appeal No. 654 of 2004.
The prosecution case in nutshell is that deceased Raziyaben married original accused No. 1 Rahimbhai before about 15 years from the date of the incident. Original accused No. 2 Ganibhai Musabhai, original accused No. 3 Karimbhai Musabhai and original accused No. 4 Razakbhai Musabhai are brothers-in-law of Raziyaben. Original accused No. 5 Nurbaiben is mother-in-law. Original accused No. 6 Khatuben, original accused No. 7 Aminaben and original accused No. 8 Jahidaben are sisters-in-law of Raziyaben. They were residing in a house situated in the area of Khatriwad, Amreli. The incident occurred on dated 23.2.1995 at 15 hours in the house of deceased Raziyaben. It is alleged that accused Nos. 3,5 to 8 quarreled with deceased Raziyaben and the accused No. 6 Khatuben poured kerosene on Raziyaben and accused No. 3 Karimbhai set her to fire by matchstick. Raziyaben was immediately removed to hospital. Raziyaben lodged first information report before the hospital duty Police Officer, which came to be registered. During the course of investigation, Executive Magistrate recorded dying declaration of the deceased, statements of material witnesses were recorded, and necessary panchnamas were drawn in presence of panchas. On 8.3.1995, during treatment, Raziyaben succumbed to the injuries. After collecting required material for the purpose of lodgment of chargesheet, chargesheet came to be filed against all the 8 accused persons in the Court of learned JMFC, Amreli. Since the offence was exclusively triable by the Court of Sessions, learned JMFC, Amreli committed the case to the Court of Sessions, Amreli, which was numbered as Sessions Case No. 105 of 1995.
The learned trial Judge framed charge at Exh.1 against all the 8 accused persons, to which they did not plead guilty and claimed to be tried. Thereupon the prosecution examined 11 witnesses and produced necessary documentary evidence. After the prosecution concluded its evidence, learned trial Judge recorded further statements of all the 8 accused persons u/s 313 of the Cr.P.C. and the accused in their further statements denied generally all the allegations leveled against them by the prosecution and stated that they were falsely implicated in this case.
After evaluating the evidence on record and the submissions made on behalf of both the sides, the learned trial Judge came to the conclusion that the prosecution successfully proved its case solely on the basis of two dying declarations made by deceased Raziyaben, namely, one before police in the form of FIR and the another before Executive Magistrate and ultimately came to the conclusion that the original accused Nos. 3,5,6,7 and 8 are guilty of the offences of murder as well as causing cruelty to Raziyaben and recorded their conviction for the offences punishable under Sections 147, 148, 149, 498A, 302 r/w. Section 149 of the IPC. However, the learned Judge came to the conclusion that the offence of murder is not made out qua the original accused Nos. 1, 2 and 4, but they are guilty of the offence of causing cruelty to Raziyaben and recorded their conviction u/s 498A r/w. Section 149 of the IPC.
Learned advocate Mr. Dagli for the appellants in both the appeals submitted that the learned trial Judge erred in relying upon the so-called dying declarations. The oral evidence adduced by the prosecution of mother and close relatives of Raziyaben did not support the case of the prosecution. Even the son of deceased Raziyaben, who was present in the house at the time of the incident, namely, Irfan did not support the case of the prosecution. The witnesses stated that Raziyaben accidentally sustained burn injuries. Even during the course of investigation, father of Raziyaben applied to DSP, Amreli for re-recording of dying declaration of Raziyaben and even Raziyaben had also sent one affidavit.
Alternatively it is submitted that even considering both the dying declarations as they are, the deceased attributed role of pouring of kerosene and set her to fire only to original accused No. 3 Karimbhai the brother-in-law of deceased and original accused No. 6 Khatunben the sister-in-law of the deceased. No role is attributed to any other accused persons except the above referred accused Nos. 3 and 6. On the same set of evidence, the learned trial Judge recorded acquittal of original accused Nos. 1,2 and 4 of the offence of murder, but recorded conviction of remaining accused persons for the said offence. It is further submitted that the deceased died after about 12 days during the treatment and that too on account of septicemia and, therefore, the offence of murder cannot be said to have been made out.
Per contra, learned Additional Public Prosecutor Mr. Dabhi vehemently opposed both these appeals and stated that on the basis of the evidence of dying declaration, the trial Court rightly recorded the conviction of all the appellants. The dying declaration is substantive piece of evidence and the prosecution duly proved the dying declaration. The theory of accidental burn injury raised by the defence is not at all emerging if the panchnama of the scene of occurrence is considered. Even in the further statements u/s 313 of the Cr.P.C., it is not the say of the accused that the deceased sustained burn injury by accident. Their defence is of total denial. The incident occurred in the house of the deceased. Therefore, it is submitted that both the appeals may be dismissed.
We have examined the record and proceedings in context with the submissions made by the rival sides.
Considering the evidence on record and the submissions made on behalf of both the sides, the prosecution case solely rests upon the evidence in form of dying declaration. The first dying declaration is in form of lodgment of FIR by the deceased herself, which at Exh.32 and, thereafter, the Executive Magistrate recorded her dying declaration, which is at Exh.29. If the evidence of rest of the witnesses, namely, Ziluben PW-3, the mother of deceased, PW-4 Irfanbhai, son of the deceased and PW-5 Hanifbhai rickshaw driver is considered, they all turned hostile and did not support the case of the prosecution and they stated that Raziyaben sustained burn injury by accident.
The evidence of PW-8 Nathubhai Dhirajlal, a hospital duty head constable is considered, he states that on 23.2.1995, while he was hospital duty ASI, upon receipt of vardhi, he went to the ward in the hospital where Raziyaben was taking treatment. Raziyaben gave statement to him, which came to be reduced in writing and Raziyaben put her thumb impression in the statement, which is an FIR, Exh.32. According to him the statement was recorded between 16.30 hours to 17.30 hours. Similarly, if the evidence of PW-7 Hasmukhbhai Popatbhai is considered, he is Executive Magistrate and upon receipt of vardhi, he went to hospital and recorded the dying declaration of Raziyaben, Exh.29.
Now considering the FIR, Exh.32, lodged by the deceased herself which is now her dying declaration before police and the dying declaration, Exh.29 recorded by the Executive Magistrate, it transpires that according to her, at about 3 pm, the accused Nos. 3,5 to 8 quarreled with her and accused No. 6 Khatuben had brought a plastic can containing kerosene and the accused No. 6 Khatuben poured kerosene on her and the accused No. 3 Karimbhai set her to fire by matchstick. If both these dying declarations, Exhs.29 and 32 are considered as they are, except original accused Nos. 3 and 6, no role is attributed to remaining accused persons in connection with the offence of murder. It is further pertinent to note that on the same set of evidence, the original accused Nos. 1,2 and 4 came to be acquitted from the charge of murder.
Considering the medical evidence on record, there does not appear that on dated 23.2.1995, when the FIR of the deceased in form of her dying declaration before police and her dying declaration before Executive Magistrate came to be recorded, the deceased was not in able state of mind and body to give dying declaration. In the dying declaration, Exh.29, there is a clear endorsement of Medical Officer to the effect that the patient is conscious. Moreover, it is further pertinent to note that both the dying declarations were recorded on dated 23.2.1995 and the deceased died on dated 8.3.1995.
On behalf of the appellants relying upon the evidence of IO Mr. Raval PW-11, it is submitted that the father of the deceased applied to DSP for re-recording of the dying declaration of the deceased along with the affidavit of the deceased. Copies of the application addressed to the DSP is at mark ''A''. In it, it is stated that the deceased accidentally sustained burn injury. Perusing the impugned judgment rendered by the trial Court, the trial Court, at length, discussed this aspect of the matter. The trial Court in the first instance observed that once the FIR lodged by the deceased herself was recorded and the dying declaration of the deceased before Executive Magistrate was recorded, there was no reason whatsoever for re-recording the dying declaration. The trial Court further observed that even considering the panchnama of the scene of occurrence, Exh.18, nothing emerges that it was accidental burn. In this respect, considering the panchnama of the scene of occurrence, Exh.18, nothing emerges that at the time when the deceased sustained burn injuries, she must be preparing food. On the contrary, one plastic can, having its lid open was found in the room with odour of kerosone and four half burnt matchsticks were found. In the middle of the room, the flooring tiles were marked with soot and pieces of burnt clothes were found from the flooring. Moreover, considering the further statements of the appellants recorded u/s 313 of the Cr.P.C., nothing is explained as to how the deceased sustained burn injury in the house or that she sustained burn injury by accident. Furthermore, the Police Officer, who recorded the FIR, which is now dying declaration before police and the Executive Magistrate, who recorded the dying declaration, both these Officers are independent witnesses. They have no axe to grind with the accused. On behalf of the appellant it is submitted that the dying declaration is outcome of tutoring. Considering the evidence of both these independent witnesses, namely, the concerned Police Officer and Executive Magistrate, nothing emerges that the dying declaration which they recorded is tutored one. There is nothing that any outsider was present when both these Officers recorded dying declarations. However, we are of the considered opinion that the learned trial Judge erred in recording conviction of all the five accused in Criminal Appeal No. 766 of 2004 for the offence of murder. In both the dying declarations, the clear and explicit allegations of pouring kerosene and setting the deceased to fire are against the appellant No. 1 Karimbhai Musabhai (original accused No. 3) and appellant No. 3 Khatunben (original accused No. 6). No other overt act is attributed to the remaining appellants. Their mere presence in the house cannot be said to be a incriminating circumstance. They are otherwise members of the same family.
All the eight accused persons came to be convicted for the offence punishable u/s 498A of the IPC as well. Considering the dying declarations and more particularly the FIR, Exh.32, the matrimonial life of the deceased was of about 15 years. During her matrimonial life, for about two years, she remained in her parents house as she felt offended by her in-laws. However, it is clearly stated that thereafter, the settlement was arrived at and she was taken back to her matrimonial house before about one month from the date of the incident. Moreover, perusing the impugned judgment rendered by the learned trial Court, it appears that merely because the appellants came to be convicted for the offence of murder, they are as well held guilty for the offence punishable u/s 498A of the IPC. Under such circumstances, we are of the considered opinion that the prosecution failed to prove beyond reasonable doubt the charge regarding commission of offence punishable u/s 498A of the IPC.
In light of the above discussions, the Criminal Appeal No. 766 of 2004 deserves to be partly allowed and the appellants No. 2,4 and 5 deserves acquittal and to that extent the impugned judgment and order rendered by the trial Court deserves to be set-aside. However, the conviction of appellant No. 1 Karimbhai and appellant No. 3 Khatuben for the offence of murder deserves to be confirmed. In the impugned judgment the learned trial Judge has assigned cogent and convincing reasons, while arriving at the conclusion that the offence of murder is made out. So far as appellant No. 1 Karimbhai and appellant No. 3 Khatuben are concerned, nothing emerges from the record that they are entitled to any of the Exceptions attached to Section 300 of the IPC. Merely because the death occurred during treatment after about 12 days, the gravity of the offence is not diluted, since the medical evidence reveals that she had sustained extensive burn injuries almost on her whole body.
So far as Criminal Appeal No. 654 of 2004 is concerned, the three appellants who are original accused Nos. 1, 2 and 4, though acquitted by the trial Court for the offence of murder, but, the trial Court recorded their conviction for the offence punishable u/s 498A r/w. Section 149 of the IPC and as discussed above, the said offence is not proved by the prosecution beyond any reasonable doubt and consequently this appeal deserves to be allowed.
For the reasons recorded in the judgment, Criminal Appeal No. 766 of 2004 is partly allowed. The conviction recorded by learned Additional Sessions Judge, Amreli on 9.4.2004 in Sessions Case No. 105 of 1995 of the appellant No. 2 Nurbaiben W/o. Musabhai Ahmedbhai (original accused No. 5), appellant No. 4 Aminaben W/o. Razak Musabhai Agawan (original accused No. 7) and appellant No. 5 Jahidaben W/o. Karim Musabhai Agawan (original accused No. 8) for the offences punishable under Sections 147, 148, 302 read with Section 149 and Section 498A read with Section 149 of the Indian Penal Code and the sentence awarded thereunder are set-aside. They are acquitted of the charges levelled against them. Fine if paid, be refunded to them. Their bail bonds shall stand cancelled. However, the conviction recorded by the trial Court of appellant No. 1 Karimbhai Musabhai Agawan (original accused No. 3) and appellant No. 3 Khatuben W/o. Ganibhai Musabhai (original appellant No. 6) for the offence punishable u/s 302 read with Section 149 of the Indian Penal Code is set-aside, but, their conviction is recorded for the offence punishable u/s 302 read with Section 114 of the Indian Penal Code and the sentence awarded by the trial Court is maintained. However, their conviction and sentence for the offences punishable under Sections 147, 148 and 498A read with Section 149 are set-aside.
Criminal Appeal No. 654 of 2004 is allowed and the conviction recorded by the trial Court of the appellants, who are original accused Nos. 1, 2 and 4 for the offences punishable under Sections 147, 148 and 498A read with Section 149 of the Indian Penal Code and the sentence awarded to them thereunder are set-aside. They are acquitted of the charges levelled against them. Fine if paid, be refunded to them. Their bail bonds shall stand cancelled.