Prahladbhai Babarbhai Thakar vs State of Gujarat

J.C. Upadhyaya, J.—The appellant, who was original accused in Sessions Case No. 240/2002, came to be convicted by the learned Presiding Officer, Fast Track Court, Nadiad, on 29.11.2003, for the offence of committing murder of one Sonalben Shanabhai Thakore, punishable u/s 302 of the Indian Penal Code and was sentenced to undergo life imprisonment and to pay a fine of Rs. 500/-, and in default of payment of fine, R.I for three months. Benefit of set off was ordered to be given to the appellant.

The prosecution case, in nutshell, is that deceased Sonalben Shanabhai happened to be the wife of the younger brother of the appellant. There was some dispute about payment of electricity bill. It is alleged that on 17.7.2002, the appellant poured kerosene on the body of Sonalben and set her on fire in her house situated at Mahemdavad, District : Kheda. Sonalben was immediately removed to the hospital of Dr. Naishadh Bhatt. She was given initial treatment about the burns. It is alleged that before Dr.Naishadh Bhatt, Sonalben stated that she was ablazed by her husband''s elder brother Tinaji, which is the alias name of the appellant. Dr.Bhatt passed on telephonic message to Mahemdavad Police Station, which was received by PSO Kiritkumar Keshablal, who made entry to that effect in the relevant register. Sonalben was subsequently removed to Ahmedabad Civil Hospital on the same day. However, she succumbed to her burn-injuries. The telephonic message (Exh.35) received from Dr.Bhatt was treated as FIR and investigation was commenced. After collecting the required material for the purpose of lodgment of charge sheet, charge sheet came to be filed in the Court of learned J.M.F.C. Mahemdavad. Since the offence was exclusively triable by the Court of Sessions, the learned J.M.F.C. Mahemdavad committed the case to the Court of Sessions, Kheda at Nadiad and Sessions Case No. 240/2002 came to be registered.

The learned trial Judge framed charge against the appellant at Exh.5 for the offence punishable u/s 302 IPC, to which the appellant did not plead guilty and claimed to be tried. The prosecution adduced its oral and documentary evidence. After completion of the oral evidence, the learned trial Judge recorded further statement of the appellant u/s 313 of the Code of Criminal Procedure, and he denied generally all the allegations levelled against him by the prosecution and stated that he was 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 the involvement of the appellant in this offence and that the prosecution proved its case beyond any reasonable doubt against the appellant, and recorded conviction of the appellant for the offence punishable u/s 302 IPC and awarded sentence, as hereinabove referred to in this judgment.

We have heard the submissions made by learned advocate Ms. Sadhana Sagar for the appellant and the learned A.P.P. Mr. Mengdey for the State. We have also examined the record and proceedings in the context with the submissions made on behalf of both the sides.

Learned advocate Ms. Sadhana Sagar for the appellant submitted that the charge is defective. It is submitted that, in the charge Exh.5 the date of commission of the alleged offence is stated to be 17.7.2000; whereas as per the prosecution case, the date of offence is 17.7.2002.

5.1 Ms. Sadhana Sagar pleaded that the prosecution case depends upon multiple dying declarations and the dying declarations are not consistent. Before the Executive Magistrate, deceased Sonalben appears to have involved only the appellant; whereas in the oral dying declaration allegedly made by her before witnesses, deceased Sonalben appears to have involved the appellant, his wife and his mother. This fact is also admitted during the course of evidence adduced by the Investigating Officer PSI Mr. Gohil.

5.2 It is further submitted that as per the medical evidence on record, the deceased had sustained extensive burn-injuries and, therefore, it is highly improbable that she was conscious and able to speak.

5.3 Ms. Sadhana Sagar further submitted that considering the contradictory version emerging from the multiple dying declarations, investigation can be said to be defective and causing prejudice to the appellant, benefit of which should be given to the appellant.

Ultimately, Ms.Sadhana Sagar, learned advocate for the appellant submitted that the appeal may be allowed.

Learned A.P.P. Mr. Mengdey for the State vehemently opposed this appeal and submitted that considering the history recorded by Dr. Bhatt as well as the evidence of Dr. Bhatt, who initially treated the deceased, it clearly transpires that the deceased was ablazed by the appellant. Even in the dying declaration recorded by the Executive Magistrate, the deceased involves only the appellant. Therefore, it is submitted by the learned A.P.P. that the prosecution successfully proved its case against the appellant and, therefore, the appeal may be dismissed.

Considering the charge Exh.5, it is true that in the charge, the date of incident is mentioned to be 17.7.2000 and the prosecution case is that the incident occurred on 17.7.2002. It is pertinent to note that in column No. 5 of the charge sheet, copy of which was provided to the appellant, the date of incident is mentioned to be 17.7.2002. Moreover, from the record of the case, it further appears that throughout the trial, no such contention appears to have been raised by the appellant before the trial Court. It is further pertinent to note that even in the memorandum of appeal, no contention is raised by the appellant regarding defect in the charge. Considering the list Exh.7, which pertains to certain documentary evidence produced by the prosecution, there is an endorsement made on behalf of the appellant-accused to the effect that the documents at serial Nos. 4 & 10 may be exhibited and those documents are arrest panchnama of the appellant (Exh.19), wherein it is stated that the accused came to be arrested on 18.7.2002, and the inquest form (Exh.20), wherein it is stated that the deceased died on 17.7.2002. Therefore, the defect in referring the date in the charge appears to be a bona fide mistake. There is nothing that this has caused any prejudice to the accused-appellant in his defence.

Considering the evidence on record, it transpires that the prosecution case rests upon dying declarations. There is no eye witness to the incident. It is the case of the prosecution that Sonalben, after sustaining burn-injuries, narrated the incident before some of the witnesses, which can be said to be oral dying declaration of Sonalben and before Dr. Bhatt, she gave history of the incident as well as Executive Magistrate Ms. Kalpanaben Modi (PW.7), who recorded her dying declaration which is produced at Exh.23.

8.1 Dr. Bhatt, who is examined at Exh.12, has stated in his deposition that on 17.7.2002 at about 2.35 P.M, Sonalben was brought before him and he found that Sonalben had sustained burn-injuries. He has further stated that he asked Sonalben about the burn-injuries and she replied that her "Jeth" named Tinaji ablazed her after pouring kerosene. In his cross-examination, Dr.Bhatt has stated that he had asked about the case story to Sonalben and not to her relatives. About the name of Tinaji, in his cross-examination, the Doctor has stated that he had inquired through the relatives of Sonalben about the full name of Tinaji and the information about full name of Tinaji was supplied to him. In his cross-examination, he has further stated that even if an injured has sustained burn-injuries to the extent of 90%, he may not lose his consciousness. Dr.Bhatt has stated that he informed telephonic to the police about the incident. Exh.13 is the certificate issued by the Doctor. Considering the said certificate, about the history, it is clearly referred that "burns by her Jeth named Tinaji".

8.2 The prosecution examined Executive Magisttrate Ms. Kalpanaben Modi at Exh.21. According to her deposition, on 17.7.2002, she received a Vardhy Exh.22, by which she was requested to record dying declaration of Sonalben Shanabhai. According to her, Vardhy was received at 3.00 P.M, and she immediately went to the hospital of Dr. Bhatt and she inquired from Dr.Bhatt about the physical condition of Sonalben and as to whether she was conscious or not, and Dr. Bhatt stated that the patient was conscious, and he made his endorsement to that effect below Vardhy Exh.22. If Vardhi Exh.22 is seen, there is endorsement made by the doctor at 3.10 P.M, to the effect that the patient was conscious. The Executive Magistrate Ms. Kalpanaben Modi thereafter went to the Ward, wherein Sonalben was taking treatment. Ms. Modi met Sonalben and asked her as to whether she was conscious or not and Sonalben replied that she was conscious. After inquiring about the consciousness, Executive Magistrate Ms.Kalpanaben Modi recorded the dying declaration of Sonalben, which is produced at Exh.23. If the dying declaration Exh.23 is considered about the incident, Sonalben has stated that her husband''s elder brother (Jeth) Tinaji poured kerosene and she was set on fire by him when she was in her house. She has further stated that at that time, in her house, her mother-in-law, brother-in-law (Jeth) and sister-in-law were present, but, her husband was not present. Executive Magistrate Ms. Kalpanaben Modi has stated that after recording the dying declaration of Sonalben, thumb impression of Sonalben was obtained below the dying declaration and she herself also signed it. The recording of dying declaration was completed at 3.25 P.M., on 17.7.2002.

Considering the evidence of Dr. Bhatt, examined at Exh.12 and Executive Magistrate Ms. Kalpanaben Modi, examined at Exh.21, it clearly transpires that at the time when the history was recorded by Dr. Bhatt and the dying declaration recorded by Executive Magistrate, Sonalben was conscious and she was able to speak. It further transpires that in the history given by Sonalben before Dr. Bhatt and in her dying declaration recorded by Executive Magistrate Ms. Kalpanaben Modi, there is no discrepancy about the involvement of the appellant in the incident. The history before Dr.Bhatt and the dying declaration recorded by the Executive Magistrate, both, are consistent about the involvement of the appellant.

However, the prosecution examined Shanabhai Babarbhai, husband of deceased Sonalben, at Exh.8, Bhulabhai Mangalbhai Thakore, father of deceased Sonalben, at Exh.14 and Dineshbhai Bhulabhai Thakore, brother of deceased Sonalben, at Exh.15. Considering their evidence, they have stated that as soon as they received information that Sonalben had sustained burn injuries, they went to the hospital and inquired from Sonalben as to how the incident had happened. According to their evidence, Sonalben had stated that she was set on fire by her brother-in-law (appellant), her mother-in-law and wife of her brother-in-law. If the evidence of I.O. PSI Mr. Gohil, examined at Exh.31, is considered, he has admitted that during the course of investigation when he recorded statements of these witnesses, the witnesses stated that as told by Sonalben, she was ablazed by the appellant, his wife and mother-in-law of Sonalben. Therefore, it is submitted that there is inconsistency between the oral dying declaration and the regular dying declaration recorded by the Executive Magistrate. It is true that in the history given by Sonalben before Dr.Bhatt and in her dying declaration recorded by Executive Magistrate, Sonalben did not state that the appellant''s wife as well as her mother-in-law were involved in this incident. She has only stated that her Jeth Tinaji (appellant) set her on fire and thus, involved only the appellant. The wife of the appellant and the mother-in-law of Sonalben have not been arraigned as accused persons in this case by the I.O. In this regard, first of all, considering the evidence of I.O. Mr.Gohil recorded at Exh.37 and his entire cross-examination, on behalf of the appellant, no explanation is sought from the I.O, as to why the appellant''s wife and mother-in-law of Sonalben are not arraigned as co.accused. Moreover, considering the record and proceedings of the case, nowhere it transpires that during the entire trial, on behalf of the appellant, any application came to be filed before the trial Court requesting the trial Court to arraign the above two persons as co-accused, u/s 319 of the Cr.P.C. It is pertinent to note that so far as the name of the appellant is concerned, there is no discrepancy between the dying declaration recorded by the Executive Magistrate and the oral dying declaration before the witnesses. Even from the oral dying declaration, involvement of the appellant is emerging. In the oral dying declaration, only two more persons are shown, including the appellant as involved in the incident. Under such circumstances, so far as the appellant is concerned, there cannot be any discrepancy in the dying declarations. Under such circumstances, so far as the appellant is concerned, there does not appear to be any prejudice having been caused by this inconsistency. It may be noted that Dr. Bhatt, who recorded the history about the incident given to him by Sonalben and Executive Magistrate Ms. Modi, who recorded dying declaration of Sonalben, are independent witnesses. They have no axe to grind against the appellant. There is no reason whatsoever to discard their evidence. As stated above, even so far as oral dying declaration is concerned, the witnesses involved the appellant too in the incident and, therefore, even if it is considered to be a discrepancy between the dying declaration recorded by Executive Magistrate Ms. Modi and the oral dying declaration, the discrepancy will pale into insignificance. It is pertinent to note that here is not a case in which, in dying declaration recorded by the Executive Magistrate, name of one person is given and in oral dying declaration before the witnesses, name of totally different person is given. As stated above, so far as the appellant is concerned, there is no inconsistency regarding his name and his involvement in the incident, either in the dying declaration recorded by the Executive Magistrate or in the evidence about oral dying declaration adduced by the prosecution.

On behalf of the appellant, it is submitted that in the history recorded by Dr. Bhatt and in the dying declaration recorded by the Executive Magistrate, name "Tinaji" is referred to. The name of the appellant is Prahladbhai Babarbhai Thakore. In this connection, considering the evidence of Dr.Bhatt Exh.12, in his cross examination, he has stated that he had inquired through the relatives of Sonalben about the full name of Tinaji and the information was supplied to him by her relatives about his full name. Considering the evidence of PSO Kiritkumar Keshavlal (Exh.34) and telephonic vardhy (Exh.35), it clearly transpires that a telephonic vardhy was received from Dr. Bhatt, wherein it was stated that Sonalben was ablazed by her brother-in-law Prahladbhai Babarbhai. Moreover, considering the further statement of the appellant recorded u/s 313 of Cr.P.C, before the trial Court (Exh.6), when the name of the appellant-accused was asked, his name was written down as "Prahladbhai @ Tino". Thus, we do not find any merit in the submissions made on behalf of the appellant.

Considering the medical evidence on record, it transpires that deceased Sonalben died because of shock as a result of extensive burns. It is pertinent to note that almost whole of her body sustained burn injuries, except her palms. It transpires that before the trial Court, the appellant-accused raised a defence of accidental burns sustained by the deceased. Considering the fact that deceased Sonalben, though sustained extensive burn injuries, palms of her both hands did not sustain such burns and, therefore, if at all Sonalben had sustained burn-injuries accidentally, she would have definitely tried to extinguish the fire and to save herself from burns, and in that process, she would have definitely sustained burn-injuries even on her palms. Thus, the possibility of Sonalben sustaining burn-injuries by accident, is rightly ruled out by the trial Court.

For the foregoing reasons, the appeal must fail and stands dismissed.