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2007 DIGILAW 216 (GUJ)

RAMABEN MANUBHAI BAVARIA v. STATE OF GUJARAT

2007-04-02

A.L.DAVE, SHARAD D.DAVE

body2007
A. L. DAVE, J. ( 1 ) THIS appeal arises out of the judgment and order rendered by the City Sessions Court in Sessions Case No. 385 of 1995 on 30th September, 1999 convicting the appellant for the offence of murder of the appellant s daughter-in-law Hansaben by setting her to fire. The trial Court also convicted the appellant for subjecting deceased Hansaben to cruelty punishable under Section 498-A of Indian Penal Code. The trial Court sentenced the appellant to undergo imprisonment for life for the offence of murder and sentenced the appellant to undergo rigorous imprisonment for one year and to pay a fine of Rs. 1,000/- in default to undergo rigorous imprisonment for three months for the offence punishable under Section 498-A of the Indian Penal Code. ( 2 ) THE prosecution case against the appellant is that the appellant was staying with her son and daughter-in-law at 26, Rajbhavan Society, Hansol, Ahmedabad. It is the case of the prosecution that the marriage of the deceased was solemnized with Pragnesh @ Pinakin Manubhai Bavaria and, thereafter, the appellant, said Pragnesh @ Pinakin and Hansaben were staying together. It is alleged that the appellant used to make various demands from the deceased and insisted upon her to satisfy those demands through her parents and caused cruelty to her. 2. 1 It is alleged that on 24th September, 1995, while the deceased and the appellant were at home, the appellant poured kerosene over the deceased in the bathroom and set her ablaze. The deceased was taken to the hospital by her husband and was given treatment. The deceased gave a history that she was set to fire by her mother-in-law (appellant) which was recorded by the doctors in the case papers. The deceased, however, succumbed to the injuries at 13. 10 hours. The FIR was lodged by Dr. Sunil Balubhai Mogeria working in the Civil Hospital on basis of which, offence was registered and investigation made. The police filed charge sheet in the Court of Metropolitan Magistrate who in turn committed the case to the City Sessions Court, Ahmedabad and Sessions Case No. 385 of 1995 came to be registered. 2. 2 The charge was framed against the appellant at Exh. 1 to which the appellant pleaded not guilty and claimed to be tried. The police filed charge sheet in the Court of Metropolitan Magistrate who in turn committed the case to the City Sessions Court, Ahmedabad and Sessions Case No. 385 of 1995 came to be registered. 2. 2 The charge was framed against the appellant at Exh. 1 to which the appellant pleaded not guilty and claimed to be tried. The trial Court, after considering the evidence, came to the conclusion that the prosecution was successful in establishing the case against the appellant and, therefore, recorded conviction as stated above and hence this appeal. ( 3 ) WE have heard learned advocate Mr. M. R. Prajapati and learned A. P. P. Mr. Bhate for the respondent State. We have perused the record and proceedings. ( 4 ) LEARNED advocate Mr. Prajapati submitted that the evidence of dying declaration in form of deposition of two doctors and medical case papers is inconsistent with each other so far as it relates time aspect. It has come in evidence that the deceased was brought to the hospital in the ward at 11. 45 hours whereas according to the doctor, he recorded the history at 11. 15 hours. This is physically not possible and, therefore, raises a doubt on veracity of the witnesses. 4. 1 Both the doctors claim that they examined the deceased at 11. 45 hours which again is physically not possible because two places are different viz. , burns ward and casualty department. 4. 2 Mr. Prajapati also submitted that there is no evidence, contemporaneous in nature, to show that the deceased was conscious at the time of giving history to the doctor. There is no eye witness to the incident and the case hangs mainly on the dying declarations. 4. 3 Mr. Prajapati submitted that so far as the allegation of cruelty is concerned, P. W. 1 Kishorebhai Prabhudas Panara who is the brother of the deceased has not supported the prosecution case. He, being brother of the deceased, can certainly be presumed to have correct knowledge about the matrimonial life of the deceased. This aspect has not been considered by the trial Court and, therefore, benefit of doubt may be given to the appellant which has been refused by the trial Court. In the aforesaid circumstances, this appeal may be allowed and judgment and order may be set aside. ( 5 ) LEARNED A. P. P. Mr. This aspect has not been considered by the trial Court and, therefore, benefit of doubt may be given to the appellant which has been refused by the trial Court. In the aforesaid circumstances, this appeal may be allowed and judgment and order may be set aside. ( 5 ) LEARNED A. P. P. Mr. Bhate submitted that it is true that the case mainly depends on oral dying declarations made by the deceased before the doctors which are then reduced into writing by the doctors in the form of case history, but it has to be considered that doctors are independent witnesses and have no axe to grind against the accused. The case history is recorded by the doctors in ordinary course of their business and is a contemporaneous record and may be given due weightage. Mr. Bhate submitted further that the inconsistency in timing is not so vast as to abrogate a contemporaneous record. The difference in timing may be an outcome of lapse in memory or even difference in timing in watches. It would not go to the root of the case and, therefore, inconsistency in timing may not be given undue weightage. 5. 1 Mr. Bhate submitted that when the doctors have themselves said that the patient was conscious and she gave the history to them which is also recorded in the case papers, there is no reason to doubt the consciousness of the deceased at the time of giving history. 5. 2 Mr. Bhate submitted that on cruelty aspect P. W. 1 Kishorebhai Prabhudas Panara has not supported the prosecution but P. W. 2 and 3 who are the parents of the deceased have supported the prosecution case and has come out with specific allegations against the appellant. They have stated in terms that the deceased was insisted upon to bring so many household articles from her parents and on failing, she was driven out of the house. Mr. Bhate, therefore, submitted that the trial Court has considered all these aspects while recording conviction and, therefore, the appeal may be dismissed. ( 6 ) WE have taken into consideration rival side contentions while examining the record and proceedings. ( 7 ) THERE is no eye witness to the incident of alleged murder and therefore, prosecution case depends on dying declarations made before the doctor in form of case history. ( 8 ) DR. ( 6 ) WE have taken into consideration rival side contentions while examining the record and proceedings. ( 7 ) THERE is no eye witness to the incident of alleged murder and therefore, prosecution case depends on dying declarations made before the doctor in form of case history. ( 8 ) DR. Grishma Divyang Patel is examined at Exh. 14. She says that when she examined the deceased her pulse rate was 50 p. m. , and she was fully conscious. She is the doctor who was working as Casualty Medical Officer at the Civil Hospital, Ahmedabad on the day of incident. e. 24. 9. 1995. She says that the deceased was brought to her at 11. 45 hours by her husband Pinakinbhai in a burnt condition. She therefore, immediately intimated to Police Constable B. No. 7468. She says that she recorded the history which was given by patient herself and was told that because of quarrel, she was set to fire by her mother-in-law. She says that she wrote the history in the case papers which are at Exh. 13. The doctor is put to stern cross-examination. Despite close scrutiny, we do not find anything which would render the deposition of the doctor doubtful. 8. 1 Parallel to this, if we examine the medical case papers Exh. 13, we find all the details in the case papers including buckle number of the Police Constable and the history of the mother-in-law having set the deceased to fire on quarrel. It is also recorded in the case papers that the case history was given by the patient herself. The case papers also indicate time to be 11. 45 a. m. , on 24. 9. 1995. 8. 2 Dr. Sunil Balubhai Mogeria is examined at Exh. 17. He was working as a resident doctor in O. P. D. Of the Civil Hospital. He says that at about 11. 45 a. m. , Hansaben was brought for treatment. She was sent by the CMO to their ward. He says that he examined her and recorded the case history. At that time, the deceased patient was fully conscious, although; her condition was critical. According to the doctor, the deceased gave history that her mother-in-law has set her to fire after pouring kerosene. This history was recorded by the witness in the case papers. The case papers are at Exh. 18. 8. At that time, the deceased patient was fully conscious, although; her condition was critical. According to the doctor, the deceased gave history that her mother-in-law has set her to fire after pouring kerosene. This history was recorded by the witness in the case papers. The case papers are at Exh. 18. 8. 3 If we see Exh. 18, we find that the doctor has recorded the history in Gujarati which can be translated thus "smy mother-in-law has set me to fire after pouring kerosene". In that case paper also, the time which is indicated is 11. 45 a. m. However, in the case history the time written is 11. 15 a. m. ( 9 ) WE have given an anxious and thoughtful consideration to the situation and in our view when the version given by these two witnesses as to the case history gets support by contemporaneous record, there would be no justification in giving undue weightage to the discrepancy in timing, once we find that the witnesses are reliable. Both the witnesses have been tested on touch stone of cross-examination and despite scrutiny, we are unable to find nor any material is shown to us to render the depositions of these doctors doubtful. It is to be remembered that both these doctors are independent witnesses who would have no interest in the ultimate outcome of the case. The mistakes may have occurred because of pressure of work or even mistake in the watch or clock. The time gap is not such so would affect the trustworthiness of the witnesses. It cannot render the entire prosecution story unbelievable. We are, therefore, inclined to accept the evidence of both the doctors overlooking the minor discrepancy regarding the timing. 9. 1 Once we accept the doctors deposition supported by medical case papers, the conviction of the appellant for the offence of murder has to be upheld and we do so hereby. ( 10 ) SO far as the conviction under Section 498-A of Indian Penal Code is concerned, it is true that P. W. 1 Kishorebhai who happens to be brother of the deceased has not supported the prosecution case but evidence of parents of the deceased; Prabhudas Maganlal Valand and his wife Laxmiben at Exh. ( 10 ) SO far as the conviction under Section 498-A of Indian Penal Code is concerned, it is true that P. W. 1 Kishorebhai who happens to be brother of the deceased has not supported the prosecution case but evidence of parents of the deceased; Prabhudas Maganlal Valand and his wife Laxmiben at Exh. 8 and 9 respectively makes it clear that the deceased was being put to harassment for satisfaction of demands by the accused for household articles through her parents and this being not satisfied, the deceased was driven out by the appellant to her parental house. The witnesses have admitted that they have not filed any complaint in this regard to the leaders of the community or to anyone for that matter. We cannot overlook the fact that in Indian society, the parents of a lady are generally under pressure and are made to yield to such demand of in-laws of their daughter or at least to suffer the same rather than to revolt against it. They are constrained to do so for happiness of their daughter. The demands may not be possible to be satisfied immediately and in hope of a better life for their daughter by satisfying the demands in future, the parents may not act immediately in direction of making complaint. This aspect has to be kept in mind while considering the evidence of such witnesses. From other angles, we find that the deposition of parents of the deceased bears a ring of truth and is reliable. The trial Court was, therefore, justified in accepting the evidence and recording the sentence of conviction for offence under Section 498-A of the Indian Penal Code. The conviction by the trial Court for the said charge is confirmed. ( 11 ) FOR the foregoing reasons, we do not find any merits in the appeal and the appeal must fail. The appeal is, therefore, dismissed. Conviction and sentence by the City Sessions Court, Ahmedabad in Sessions Case No. 385 of 1995 by judgment and order dated 30. 9. 1999 is hereby confirmed.