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2009 DIGILAW 133 (GUJ)

Salim @ Munna Rahim Shaikh v. State of Gujarat

2009-03-02

JAYANT PATEL, RAJESH H.SHUKLA

body2009
Judgment Jayant Patel, J.—The present appeal is directed against the Judgement and the order passed passed by the learned Sessions Judge, Valsad, in Sessions Case No. 165/99, whereby the learned Sessions Judge has convicted the appellant-accused for the offence under Section 302 of IPC and has imposed the sentence for life imprisonment with the fine of Rs. 20,000/-. 2. It appears that the complainant is the wife of the accused who had married as per Muslim religion and from their wedlock, there is one child viz. Nirma @ Aysha. The accused was giving ill treatment to the wife and he was beating her and was giving mental as well as physical torture. He was pressurizing the complainant to leave the house. On 07.09.1999, the complainant and the accused were at their residence. The complainant had gone for cleaning rice at the place of one Ramanbhai. When she came back, she requested the accused to take food, but the accused denied and demanded money which was received by her from cleaning rice. As the complainant denied for giving money, the accused got excited and gave fist blows by beating her and she was compelled to go away from the house. When the complainant was in the courtyard, the accused brought the kerosene in a can and sprinkled over the body of the complainant and set her on fire. The complainant was burnt on the face, neck, chest, hands and legs. She started shouting and therefore, the accused poured water, but nobody came forward from the nearby area. The accused thereafter, brought the complainant upto the house of one Kanubhai. Thereafter, he ran away by leaving her on road. The complainant thereafter, by walking, reached to the Doctor. She was in conscious condition and therefore, she filed complaint which was registered vide C.R. No. 92/99 of Vasda Police Station. It deserves to be recorded that thereafter, immediately on the next day, i.e. 08.09.1999, the statement of the complainant was also recorded in which she stated that the accused sprinkled water over her with a view to see that his crime may not be revealed but there was no intention on the part of the accused to save her, but was to kill her. She also stated that name of the father of the accused is Rahim Sheikh, but by inadvertence, it was mentioned as Kasambhai. She also stated that name of the father of the accused is Rahim Sheikh, but by inadvertence, it was mentioned as Kasambhai. In the further statement of the complainant she stated that she had gone for cleaning rice at the house of Bhanuben @ Bhankuben Ramanbhai and the said Bhaunben had not given any money to her. It appears that thereafter, the complainant succumbed to the burn injuries on 24.09.1999 and therefore, the charge was also added for the offence under Section 302 of the Indian Penal Code. 3. The police investigated the matter and ultimately, filed the charge-sheet against the accused. The prosecution in support of the charge against the accused has examined the following witnesses: P.W. No. Name Exh. 1 Dr. Parimalaben Jitendra Joshi, Medical Officer, Civil Hospital at Navsari. 9 2 Dr. Arun Baburao Sonwane, Medical Officer, Vansda. 13 3 Ukasinh Mohansinh Parmar, Deputy Mamlatdar, Vansda. 22 4 Shankarbhai Chhitrabhai 25 5 Bhanuben Ramanbhai 26 6 Rameshbhai Dajibhai Patel 27 7 Mahmadali Karim Saiyed, P.S.I. Vansda Police Station 29 The prosecution in support of its case has also examined the following documents. Sr. No. Particulars Exh. 1 PM Note 11 2 Medical Certificate of deceased Savitaben. 16 3 Medical Certificate of accused. 17 4 Arrest panchnama. 18 5 Panchnama regarding clothes of accused. 19 6 Inquest panchnama. 20 7 Panchnama of scene of offence. 28 8 Complainant-FIR. 31 9 FSL Report. 32 After the evidence was over, in the statement of the accused recorded under Section 313 of the CRPC, the accused denied the charges against him and in the further statement, he stated that his wife Savita was committing suicide and he tried to save her and therefore, he received burn injuries on the left hand and he had also poured water over her body and he carried her to the hospital and stated that he has not committed any offence. 4. The learned Sessions Judge, after giving opportunity of hearing to both the sides, found that the prosecution has been able to prove the case against the accused for commission of offence under Section 302 of IPC and therefore, the learned Sessions Judge convicted the appellant-accused under Section 302 of the IPC. The learned Sessions Judge thereafter, also heard the accused before imposition of the punishment and ultimately, imposed the sentence for life imprisonment with a fine of Rs. 20,000/- upon the accused. The learned Sessions Judge thereafter, also heard the accused before imposition of the punishment and ultimately, imposed the sentence for life imprisonment with a fine of Rs. 20,000/- upon the accused. It is under these circumstances, the present appeal before this Court. 5. We have heard Ms. Sadhana Sagar, learned Counsel appearing for the appellant-accused and Mr. Raval, learned APP for the State. 6. The evidence on record shows that there is a complaint of the deceased dated 07.09.1999 during the period when she was surviving and she has stated in the complaint that she was in mental consciousness and she was in a position to speak properly. Not only that, but thereafter, the police has recorded her statement on 08.09.1999 as well as on 10.09.1999 in which she has further stated about the intention on the part of the accused of not saving her but killing her. The other aspects in the further statement are not of much relevance for the commission of the crime, except the description of the accused by showing the correct name of the father of the accused and the non-receipt of the money by the complainant from Bhanuben. 7. The dying declaration of the deceased-complainant which was recorded has also come on record in the deposition of Ukasinh Mohansinh Parmar, P.W. 3. The said dying declaration is recorded before the Executive Magistrate on the very day of the complaint, i.e. 07.09.1999 at 16.45 Hrs. In the said dying declaration, Exhibit 24, the deceased has stood by the very statement made in the complaint as that of beating by the accused and removing her from the house and of brining kerosene in the can and of sprinkling the kerosene over her and setting on fire with matchstick. She has also stated of sprinkling of water by the accused and the accused having started taking her to the hospital and leaving her on the way and she reached to the hospital of her own by walking. As stated by her, she had also fallen down on the compound of the hospital and was under treatment in the Government hospital and she was in conscious condition. The thumb impression of the deceased is also taken before the Executive Magistrate who has recorded the dying declaration. As stated by her, she had also fallen down on the compound of the hospital and was under treatment in the Government hospital and she was in conscious condition. The thumb impression of the deceased is also taken before the Executive Magistrate who has recorded the dying declaration. In the cross-examination of the said witness, nothing has come out to the contrary showing the genuineness of the dying declaration, except the suggestion to the extent that the complainant-patient could not be said to be in conscious condition due to the burns received by her, but the said suggestion is not admitted. 8. The pertinent aspect is that, there is an eyewitness to the incident Bhanuben Ramanbhai, P.W. 5 whose deposition is at Exhibit 26. As per the said witness, she could see the things happening at the scene of the offence since the house is located just near to the house of the accused. She had seen that there was quarrel between the accused and the complainant on the aspect of demanding money and when the complainant was below the trees of custard apple, the accused brought the kerosene and sprinkled the kerosene over the deceased-complaint and thereafter, with the matchstick, set her on fire and the deceased was burnt. After sometime, the deceased started shouting and at that time, the accused sprinkled water over her and she had seen the accused and the complainant passing through her house. She thereafter learnt that the accused had accompanied the deceased upto the house of Kanubhai and thereafter, had left her and the deceased had of her own reached to the Government hospital. In the cross-examination of the said witness, the defence has not been able to prove anything to the contrary which may lead the Court to disbelieve her status as eyewitness to the incident. 9. Under these circumstances, the complaint is by the deceased during the period when she was in conscious condition and was alive. Further, there is also dying declaration recorded before the Executive Magistrate and also the eyewitness to the incident. There is no contradiction for the act committed by the accused for commission of offence, more particularly of dispute between the husband and wife and sprinkling of the kerosene and setting her on fire and also of sprinkling water after sometime. 10. Further, there is also dying declaration recorded before the Executive Magistrate and also the eyewitness to the incident. There is no contradiction for the act committed by the accused for commission of offence, more particularly of dispute between the husband and wife and sprinkling of the kerosene and setting her on fire and also of sprinkling water after sometime. 10. The Doctor Parimalaben, P.W. 1 whose deposition is at Exhibit 9, has performed the Postmortem of the deceased. She has admitted her signature on the Postmortem Report and the postmortem has come on record at Exhibit 11. She has confirmed the position of severe burn injuries on the body of the deceased as stated in the postmortem report vide column No. 17 and he has also stated that the deceased had received the burn of 75-80%. She has also stated that all injuries were prior to the death and were sufficient to cause death in natural course. She has also stated that her colleague Dr. Jyotiben had the same conclusion. As per the said Doctor, the cause of death is due to septicemia which ultimately resulted into cardio respiratory arrest. In the cross-examination of the said witness, no material contradiction has come out. The suggestion was made to the said Doctor by the defence that the patient may not be in a position to survive if the burn is exceeding 50%, but the said Doctor has opined that it depends upon the physical condition and she has not agreed with the suggestion that if there is a burn injury of 80% to a lady, and if the treatment is not given, she would die immediately. She has also stated that as per her opinion, the injuries are caused when the deceased must be sitting. 11. The other evidence on record of the inquest panchnama, the panchnama for arrest of the accused, the panchnama of scene of offence, has come on record and the same fully supports the case of the prosecution. 12. The prosecution has also examined Dr. Arun Baburao Sonwane, P.W. 2, who had treated the deceased at the first instance when she reached to the hospital. The said Doctor had recorded the history as described by the deceased and he has also issued the certificate which has come on record at Exhibit 16. 12. The prosecution has also examined Dr. Arun Baburao Sonwane, P.W. 2, who had treated the deceased at the first instance when she reached to the hospital. The said Doctor had recorded the history as described by the deceased and he has also issued the certificate which has come on record at Exhibit 16. He has stated that the deceased was in full conscious condition and made endorsement on the Yadi for the condition of the patient and for recording of the dyeing declaration. In the cross examination, nothing has been revealed to the contrary and the suggestion put forward by the defence that the patient would go in shock or in coma if the burn injury is 70-80%, has been denied by him. He has specifically stated that the skin of the palm was not burnt when he had examined the deceased. He has specifically denied with the suggestion that the deceased was not competent to make statement at the time when he examined here. The FSL report shows that the case of the prosecution is getting support for the contents of kerosene from the samples and also from the cloths of the accused. 13. The learned Counsel for the appellant accused contended that there are certain infirmities in the dying declaration inasmuch in the said dying declaration, there is no endorsement of the Doctor stating that the patient is in conscious condition and she also submitted that as there is no identification of the thumb impression, the same could not be relied upon by the Sessions Court. It was submitted that the burn injuries even as per the Doctor was 70-80% and both hands were burnt and therefore, the dying declaration or complaint made by the victim/deceased ought not to have been relied upon. 14. Whereas, on behalf of the State, the learned APP while supporting the view taken by the learned Sessions Judge, submitted that as per the evidence on record, when the complaint was recorded, the deceased was in full conscious condition and the dying declaration has been recorded before the Executive Magistrate. Therefore, since it was voluntarily and in conscious state of mind, it could be relied upon and has been rightly relied upon by the learned Sessions Judge. 15. Therefore, since it was voluntarily and in conscious state of mind, it could be relied upon and has been rightly relied upon by the learned Sessions Judge. 15. It deserves to be recorded that the deceased after receiving burn injuries, though may be of gravity of 70-80%, has of her own by walking, gone to the hospital, where the complaint has been recorded at Exhibit 31. In the very complaint, she has stated that she has come walking and she has been admitted by the Doctor for treatment and she was in a conscious condition and she could speak well. The thumb impression is put up by her of the right hand. The same is specifically corroborated by the second statement recorded by the police dated 08.09.1999, wherein she stated that there was no intention on the part of the appellant-accused to save her, but was to kill her. Not only that, but the third statement is also recorded on 10.09.1999 of the deceased by the police wherein, she stated that she did not receive any money from Bhanuben for labour work. In the Yadi, which was sent by the police to the Executive Magistrate, Exhibit 23, dated 07.09.1999, there is already written endorsement by the Doctor that the patient is in conscious condition. The same is received by the Executive Magistrate on 07.09.1999 at 16.30 Hrs. The dying declaration, Exhibit 24 shows that the thumb impression of the right hand is put by the deceased in presence of Executive Magistrate and the said dying declaration has been recorded and completed from 16.45 Hrs. to 17.30 hrs. 16. Under these circumstances, the aforesaid factum of recording of the complaint before the police at the first instance when she was admitted in the hospital and thereafter, recording of the dying declaration, after being certified by the Doctor in conscious condition and also specifically recording of the statement, clearly go to show that the deceased was in conscious condition and in good mental state has made declaration in the complaint as well as before the Executive Magistrate. Further, it is not the case of the defence that the same was under pressure or under compulsion. When the dying declaration is recorded in conscious condition and is voluntary, it can be relied upon by the learned Sessions Judge in the impugned Judgement. Further, it is not the case of the defence that the same was under pressure or under compulsion. When the dying declaration is recorded in conscious condition and is voluntary, it can be relied upon by the learned Sessions Judge in the impugned Judgement. When the expert has also opined for conscious mental condition of the deceased and the deposition of the Doctor is also not contradicted in the cross-examination, we cannot accept the submission of the learned Counsel for the appellant-accused that the dying declaration was not in conscious condition or that due to the burn injuries received by the deceased of 70-80%, she could not remain in good mental condition as submitted by the prosecution and therefore, the dying declaration should not be relied upon. 17. The reference may be made to the recent decision of the Apex Court in the case of Dashrath alias Champa & Ors. vs. State of Madhya Pradesh reported in AIR 2008 SC 316 , wherein the view taken by the Apex Court is that the principles on which the dying declaration is admitted in the evidence is indicated on the legal maxim “nemo moriturus proesumitur mentiri”- “a man will not meet his maker with a lie in his mouth”. The Court has put guard that the statement of the deceased was not as a result of either tutoring, prompting or imagination. The Court must further be satisfied that the deceased was in a fit state of mind after a clear opportunity to observe and identify the assailant. Once the Court is satisfied that the declaration was true and voluntary, undoubtedly, it can base its conviction without any further corroboration. It was also observed that it is well settled that corroboration to the dying declaration is a rule of prudence but, not mandatory requirement in law. 18. It further appears that the statement made in the complaint as well as in the dying declaration are corroborated by the other evidence led by the prosecution, i.e., of the Doctor for injury received by the deceased, the panchnama for recovery of the cloths, FSL report showing the contents of kerosene on the cloth of the accused. Therefore, even if the corroboration is to be traced before relying upon the dying declaration, the same is available in the present case. Under the circumstances, the contention of the learned Counsel for the appellant-accused cannot be accepted. 19. Therefore, even if the corroboration is to be traced before relying upon the dying declaration, the same is available in the present case. Under the circumstances, the contention of the learned Counsel for the appellant-accused cannot be accepted. 19. The learned Counsel next contended that it was not the case as falling in the category of the offence under Section 302 of IPC, but would fall in the category of Section 304 Part-II of IPC, where the maximum punishment is 10 years. The learned Counsel submitted that it is on account of the sudden provocation due to quarrel between the husband and the wife, the incident had taken place. She submitted that after the burning started, the accused himself had tried to save the deceased and while doing so, the accused burnt his hand. It was submitted that the aforesaid conduct on the part of the accused shows that there was no intention to kill her or to cause death to her. She also submitted that subsequently, the accused accompanied the deceased for carrying her to the hospital. The said conduct also would show that there was no intention on part of the accused-appellant to kill the deceased. 20. Whereas, on behalf of the State, the learned APP submitted that the act of pouring kerosene and putting fire on human body shows the intention to kill her and therefore, it was a clear case of offence under Section 302 of IPC and hence, rightly held and convicted by the learned Sessions Judge. 21. It is true that on 07.09.1999, when the deceased filed complaint before the police, she did state that the water was poured by the accused upon her, but such action of pouring water was due to shouting by the deceased and it is not stated as that for saving her from fire. Before the Executive Magistrate, she has only stated of sprinkling water by the accused upon the deceased. In the further statement dated 08.09.1999, the deceased in the conscious state of mind has declared that the water was sprinkled by the accused upon her so that his crime may not come out or to suppress the same and there was no intention of the accused to save her, but was to kill her. In the further statement dated 08.09.1999, the deceased in the conscious state of mind has declared that the water was sprinkled by the accused upon her so that his crime may not come out or to suppress the same and there was no intention of the accused to save her, but was to kill her. Therefore, in view of the aforesaid evidence on record, it is not possible to accept the contention of the learned Counsel for the appellant-accused that the appellant-accused had tried to save her. 22. Further, it cannot be said to be a sudden provocation as sought to be canvassed on behalf of the appellant-accused. It is true that there was dispute between the husband and wife, but as per the dying declaration and the statement made by the deceased before the police, by beating the deceased, she was compelled to go out from the house and when she sat below the tree, the accused brought the kerosene in a can, sprinkled over her and thereafter, put the fire which has resulted into the severe burn received by the deceased and ultimately, the deceased succumbed to the injury. If on account of the dispute between husband and wife, the husband goes to the extent of bringing kerosene and pouring or sprinkling over the wife and with the help of matchstick, the fire is lit and she is set on fire, the intention to cause death would be apparent. If the fire is set upon a human body after sprinkling of kerosene or inflammable material, the burning is certain and such in normal course would result into causing death of such person. Therefore, the conduct shows that the intention was to cause death of the deceased. It may be that the deceased after receiving injury survived for sometime but such cannot be said to be a circumstance to dislodge the intention on the part of the appellant-accused to cause death of the deceased. 23. In any case, the pouring or sprinkling of kerosene or an inflammable material and putting fire on a human body would result into great pain and suffering to the person who received the burn injuries. Even if such person survive for some time, it will be a great suffering by such victim. Therefore, such conduct can be said to be a heinous crime, more particularly, when such is by a husband to his wife. Even if such person survive for some time, it will be a great suffering by such victim. Therefore, such conduct can be said to be a heinous crime, more particularly, when such is by a husband to his wife. Therefore, it cannot be said that the accused had no knowledge that such act on his part of burning/sprinkling of kerosene and putting fire upon the body of the deceased was not intended to cause death of the deceased. 24. The attempt was made by the learned Counsel for the appellant-accused to rely upon the decision of this Court in the case of Dilipbhai Madhubhai Patel vs. State of Gujarat reported in 2002 (2) GLH 152, for contending that in a case where death was as a result of putting fire in an intoxicated condition, this Court considered as the offence under Section 304 Part-II of the IPC and not under Section 302 of the IPC and therefore, it was submitted that this Court may take the same view. 25. Whether there is intention to cause death by the offender or not is essentially the question of fact to be considered and examined by the Court in each case and there cannot be any blanket principle and proposition that since in the other case, a particular view was taken, the same view has to be taken in the subsequent case though, fact may be different. In the case of Dilipbhai Madhubhai Patel (Supra), it was not a dispute between a husband and wife where there will be a sentimental tie between husband and wife. Further, the burn injury by the deceased at the first instance was 36%, whereas in the present case, the burn injury is 70-80%. Further, in the said case, there was a demand of Rs. 30/- and sprinkling of the kerosene is from kerosene lamp which would contain less quantity of kerosene, whereas in the present case, the kerosene can (kerbo) is brought by the accused and sprinkled over the deceased. Therefore, in the facts of that case, the Court found that it was on account of sudden provocation and there was not an intention to cause death. Therefore, in the facts of that case, the Court found that it was on account of sudden provocation and there was not an intention to cause death. Not only that, in the said case, this Court had no occasion to examine the question as to whether sprinkling/pouring of kerosene of a substantial quantity over the body of the deceased and putting fire and consequently receiving injury by the victim to an extent which may result into death of such victim, could be said as an intention to cause death of the deceased or not. Under these circumstances, the said decision in the case of Dilipbhai Madhubhai Patel (Supra) is of no help to the appellant-accused. 26. At this stage, we may make useful reference to the decision of the Apex Court in the case of Srinivasa & Ors. reported in (2005) 9 SCC 327 , wherein, similar contention was raised before the Apex Court by showing that the attempt was made to save the victim and the victim was taken to the hospital and therefore, the case may not be considered under Section 302 of IPC. The Apex Court observed at Paras 7, 8 & 9, as under: “7.The crucial question for decision is whether the two dying declarations given by deceased Sujatha are truthful or not. The Counsel for the appellants submitted that there is defence evidence to show that the deceased sustained accidental burn injuries when she was preparing food and Appellants 2 and 3 suddenly reached the kitchen and even put the blanket on her body and she was taken to the hospital for immediate medical aid and these facts indicate that the deceased must have sustained burn injuries due to the accident. 8. We are unable to accept the contention of the appellants’ counsel. In both the dying declarations she implicated all the appellants and stated that Appellants 2 and 3 poured kerosene on her body and the first appellant lit the fire and she sustained burn injuries. The fact that she was taken to the hospital or her body was covered with a blanket might have been immediate reaction made by these appellants, and it would not absolve them of criminal conduct spoken to by deceased Sujatha. (Emphasis supplied) 9. There is also other contemporaneous evidence to show that the appellants caused the death of the deceased by burn injuries. (Emphasis supplied) 9. There is also other contemporaneous evidence to show that the appellants caused the death of the deceased by burn injuries. The police visited the scene of occurrence and prepared the inquest and prepared a mahazar and kerosene was found in the kitchen. The prosecution witness also deposed that the first appellant was causing harassment to the deceased by demanding dowry and the evidence adduced in this case clearly establishes that on account of demand of dowry the deceased Sujatha was subjected to physical and mental torture which resulted in causing her death.” 27. Under these circumstances, it is not possible to accept the contention of the learned Counsel for the appellant-accused that there was no intention on the part of the appellant husband to kill his wife and therefore it would not be a case falling under Section 302 but would fall under Section 304 Part-II of the IPC. 28. In the result, the appeal is meritless. Hence, dismissed. The Judgement and Order of the learned Sessions Judge is hereby confirmed.