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Judgment
A.L. Dave, J.—The appellant came to be tried and convicted for offences punishable under Sections 302 and 452 of the Indian Penal Code
(""I.P.C."" for short) by Sessions Court, Mehsana, in Sessions Case No. 241 of 1999, by judgment and order dated 29th July, 2000. The appellant
was sentenced to undergo imprisonment for life and to pay a fine of Rs. 1000/-, in default, to undergo rigorous imprisonment for a period of three
months for the offence punishable u/s 302 of the I.P.C. and for the offence punishable u/s 452 of the I.P.C., he was sentenced to undergo rigorous
imprisonment for one year and to pay a fine of Rs. 300/-, in default, to undergo rigorous imprisonment for two months. Both the sentences were
ordered to run concurrently. Aggrieved by the said judgment and order, present appeal is preferred.
The prosecution case, in a nutshell, is that Anandiben, wife of Jashuji Nathaji Zala, lodged an F. I. R. with Kadi Police Station alleging that on
14th May, 1999, when she was at her home at village Moyan of Kadi Taluka, the appellant came to her house, as she had some illicit relations
with him. She, however, told him not to come to her house, which led the appellant to rush into the house, bring kerosene and pour over her and
then set her to fire. Thereafter, the appellant escaped. On hearing her shouts, the neighbours had come, extinguished the fire and took her to Kadi
Hospital in an auto rickshaw. According to her, at the time of the incident, her husband was not at home as he had gone to the field.
2.1 On the basis of the F.I.R., offence was registered and came to be investigated. During the course of investigation, a dying declaration of the
deceased was taken by Executive Magistrate, Kadi, wherein also the deceased gave the same story. Later on, the deceased was shifted to
Ahmedabad Hospital. In the Ahmedabad Hospital, she was treated and succumbed to the injuries during the course of treatment. When she was
taken to Ahmedabad Hospital, a Yadi was written by the Constable posted at Civil Hospital, which would go to show that the deceased had set
herself ablaze. The investigating agency filed charge sheet in the Court of Judicial Magistrate, First Class, Kadi, who committed the case to the
Court of Sessions and Sessions Case No. 241 of 1999 came to be registered. The Sessions Court framed charge against the appellant at Exhibit
1, to which he pleaded not guilty and claimed to be tried.
2.2 On the basis of the evidence led by the prosecution, the Trial Court recorded conviction of the appellant for offences punishable u/s 302 and
452 of the I.P.C.
Learned Advocate, Mr. Buddhbhatti, appearing for the appellant submitted that the evidence of the prosecution is inherently contradictory and
no weightage could have been given by the Trial Court. According to him, the version of the deceased-victim, as emerging from the F.I.R. and her
so called dying declaration, is in direct conflict with the Inquest Panchnama (Exhibit 9) and the Yadi (Exhibit 10), which speak of suicidal burns.
Mr. Buddhbhatti submitted further that the Executive Magistrate did not obtain any certificate/endorsement from the doctor that the deceased was
in a conscious condition and good state of mind to give a dying declaration. He submitted further that there is manipulation in the dying declaration
as regards the age of the deceased. He also submitted that the dying declaration was recorded at a time when the deceased was in company of her
relatives, who were removed just before recording of the dying declaration and, therefore, the possibility of the relatives influencing the deceased to
give a particular type of dying declaration cannot be ruled out.
3.1 It was also contended that the investigation is faulty. It has come in evidence that the deceased did not speak to anyone while she was being
taken to the hospital in auto rickshaw and this is the version of the brother-in-law (Jeth) of the deceased. Mr. Buddhbhatti submitted that the
neighbours of the deceased as well as the brother-in-law (Jeth) of the deceased supported the theory that the deceased had committed suicide. He
submitted that the appeal may, therefore, be allowed.
On the other hand, learned Additional Public Prosecutor, Mr. Mengdey, has opposed this appeal. According to him, both the F.I.R. and the
dying declaration corroborate each other. Conviction can be founded on solitary evidence in the form of dying declaration, if the dying declaration
is found to be trustworthy and reliable. Mr. Mengdey submitted that an overwriting regarding age of the declarant in the dying declaration is of no
significance and it cannot be inferred that it was done at the behest of the Police Officer because, for the purpose of trial, age of the declarant was
not so significant. He submitted further that Exhibits 9 and 10, namely, the Inquest Panchnama and the Yadi, are prepared by Ahmedabad Police
and their authenticity is not disclosed and, therefore, they cannot be treated as conclusive proof. It is only a procedural lapse and cannot outweigh
the evidence in the form of the F.I.R. by the deceased and the dying declaration. He, therefore, submitted that the appeal may be dismissed.
We have examined the record and proceedings in light of the submissions made by rival sides.
We find that the F.I.R. in terms implicates the appellant of the offence of murder by setting the deceased ablaze. That F.I.R. is recorded by
Atmaram Patil, who is examined at Exhibit 29. He says that the deceased-Anandba was fully conscious and the F.I.R. was written down by him,
as stated to him by the deceased. The said F.I.R. was written down in the hands of Baldevbhai and the thumb impression of the deceased was
obtained. He says that Dr. Acharya had put an endorsement at 23.30 hours on 14.05.1999 about the patient being conscious. We have examined
the record ourselves to find that there is such an endorsement made by the doctor just below the thumb impression of the deceased in the F.I.R. at
Exhibit 30.
6.1 Witness-Atmaram has been cross-examined, but he has stuck to his version firmly during cross-examination. He denies the suggestion that he
had put questions to the deceased and then written down the F.I.R. in his own words and has asserted that the F.I.R. was written down by him in
the words of the deceased herself. It also emerges from his cross-examination that the deceased was able to speak clearly. He also says that he
was there when the dying declaration was recorded by the Executive Magistrate, which was recorded soon after the recording of the F.I.R.
6.2 The dying declaration is at Exhibit 21. It was recorded by witness Kanaiyalal Prahladbhai Suthar (Exhibit 19). He says that he was working as
Deputy Mamlatdar at Kadi. On 14.05.1999, he received a Yadi for recording dying declaration of Anandiben Jashuji Zala at about 22.40 hours.
He, therefore, immediately went to the hospital at 23.00 hours to Kadi Hospital and ascertained whether Anandiben was conscious. He says that
he obtained an endorsement of Dr. Acharya to that effect, which he made on the Yadi (Exhibit 20). We have verified the original Yadi from the
record and proceedings and find that such an endorsement was made by Dr. Acharya on 14.05.1999 at 23.00 hours. Witness-Kanaiyalal Suthar
then says that he talked to the patient and inquired about her and her husband''s age, community, education, etc. and then about the incident and
wrote down whatever stated by her about the same. He says that she stated in her dying declaration that on 14.05.1999, at about 6.30 in the
evening, the appellant came to her house and on being denied, he brought kerosene from the house and set her ablaze. The witness has been
cross-examined, but nothing turns on his cross-examination. What emerges is that he admits that an alteration being made in the age of the
deceased in Exhibit 21, the dying declaration. He denied the suggestion that he had recorded the dying declaration of Anandiben on the basis of
the interaction with the relatives. He also denies that the deceased was not in a position to give the dying declaration.
It is true that there is alteration made in the dying declaration regarding age of the deceased, but for rest of the writing, there are no
interpolations, changes or alterations. It is clear from the evidence of Kanaiyalal that he had ascertained the health status of the deceased before
recording the dying declaration by obtaining a certificate from the doctor. It is also clear that even he himself talked to the deceased and found her
to be conscious. The dying declaration clearly implicates the appellant of having poured kerosene over her and set her to fire. Same is the version
coming from the F.I.R.
It is true that the Inquest Panchnama (Exhibit 9) and the Yadi (Exhibit 10) speak of pouring of kerosene by the deceased herself on her person,
but the authenticity of source of knowledge is a factor about which there is no material on record. But we may record that the Inquest Panchnama
was drawn at Ahmedabad by Executive Magistrate and in that Inquest Panchnama, there is no reference to Crime Register number, which
ordinarily would be there as it was drawn after lodging of the F.I.R. This could be inferred to mean that the Executive Magistrate did not have the
F.I.R. or any other information with him while drawing the Inquest Panchnama and it must have been drawn on the basis of some information given
to him, may be by witnesses who have not supported the prosecution case. Similar would be the situation so far as Exhibit 10, report for making of
postmortem, is concerned.
It is true that the neighbours and the brother-in-law (Jeth) of the deceased have not supported the prosecution case and have been declared
hostile and, according to them, the deceased did not disclose anything to them regarding the incident. None of them was eye-witness to the
incident. Except the brother-in-law (Jeth) of the deceased, the other witnesses do not say anything about the suicidal burns. Arjunji Nathaji (Exhibit
22), brother-in-law of the deceased, also does not speak anything about the suicidal burns in his examination-in-chief.
From the above discussion, it is clear that we have before us an F.I.R. recorded by police, given by the deceased and a dying declaration
recorded by Executive Magistrate, both implicating the appellant for the offence or murder as well as trespass. Against that, there are two
documentary evidence in the form of Exhibit 9, the Inquest Panchnama and Exhibit 10, the Yadi and oral evidence of Arjunji Nathaji (Exhibit 22),
Kapilaben Shivaji (Exhibit 23) and Revaben Gopalji (Exhibit 24), who all have not supported the prosecution case and have been declared hostile.
Out of these witnesses, only Arjunji, during cross-examination, admits that the deceased stated about suicidal burns. Thus, there are two sets of
evidence. But, in our view, the second set of evidence cannot outweigh the evidential value of dying declaration recorded by an independent
officer, namely, Executive Magistrate, and the F.I.R., which is in consonance with the dying declaration. Under the circumstances, we are of the
view that the Trial Court was justified in recording conviction of the appellant and we find no reason to interfere with the said finding. The appeal,
therefore, must fail and stands dismissed.