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Gujarat High Court · body

2009 DIGILAW 480 (GUJ)

Kanjibhai Pitamberdas Thakkar v. State of Gujarat

2009-07-20

H.B.ANTANI, J.R.VORA

body2009
Judgment H.B.Antani, J.—Instant appeal is preferred under Section 374[2] of the Code of Criminal Procedure, 1973 [hereafter to be referred to as “the Code”] against the judgment and order dated 21.7.2003 rendered by the learned Additional Sessions Judge, [Second Fast Track Court] Banaskantha District at Deesa in Sessions Case No. 58 of 2000 by which the learned Judge convicted the appellant for the offence punishable under Section 302 of IPC and imposed rigorous imprisonment for life and fine of Rs. 1,000/-, in default, rigorous imprisonment for further six months. However, the learned Judge acquitted the appellant for the offence punishable under Section 504 of IPC. 2. Short facts giving rise to the present appeal are stated as under:- 3. As per the prosecution case, incident took place on 20.2.2000. Mansukhbhai, brother of the appellant lodged a complaint with Police Inspector, Deesa City Police Station, which came to be registered as CR I 37/2000 under Secs.307 and 505 of IPC. On receiving burn injuries, Mansukhbhai was subsequently shifted to Civil Hospital, Ahmedabad and during the course of the treatment, he died on 24.2.2000. The Investigating Officer submitted report to the learned Magistrate for adding Section 302 of IPC on 29.2.2000. The Investigating Officer recorded statements of witnesses, visited the place of incident and prepared panchnama with regard to place of the incident. Post-mortem was performed on the dead body of Mansukhbhai. Muddamal recovered was sent to Forensic Science Laboratory for the purpose of detailed analysis. On receipt of post-mortem report from the FSL, the appellant was produced before the Judicial Magistrate First Class, Deesa, who, in turn, committed the case to the Sessions Court under Section 209 of the Code as the case was exclusively triable by the Sessions Court. Charge against the appellant was framed on 18.11.2000 vide Exhibit 3 and the appellant pleaded not guilty to the Charge levelled against him. Therefore, the matter was set down for full-fledged trial before the Sessions Court. 4. The prosecution examined the following witnesses in order to bring home the charge against the appellant. They are as under:- Sr. No. PW Names Exhs. 1. 1 Dr. N.P. Sutaria 6 2. 2 Ramanlal Amthalal Joshi 9 3. 3 Ashish Pranlal 12 4. 4 Sakurbhai Usmanbhai 14 5. 5 Vijaykumar Ghanshyambhai 16 6. 6 Naranbhai Ratansinh 17 7. 7 Deepchand Khetsinh 19 8. 8 Arjunbhai Jorjibhai Parghi 21 9. 9 Amratbhai Mevabhai 24 10. They are as under:- Sr. No. PW Names Exhs. 1. 1 Dr. N.P. Sutaria 6 2. 2 Ramanlal Amthalal Joshi 9 3. 3 Ashish Pranlal 12 4. 4 Sakurbhai Usmanbhai 14 5. 5 Vijaykumar Ghanshyambhai 16 6. 6 Naranbhai Ratansinh 17 7. 7 Deepchand Khetsinh 19 8. 8 Arjunbhai Jorjibhai Parghi 21 9. 9 Amratbhai Mevabhai 24 10. 10 Kantibhai Mevabhai 25 11. 11 Tulsiben w/o. Dalpatbhai Pitambardas 26 12. 12 Babiben w/o. Kanti Meva 28 13. 13 Amratbhai Valjibai 29 14. 14 Sabalsing Dalpatsing Raol 33 15. 15 Dr.H.G. Jadav 48 16. 16 Udesinh Ratansinh 54 5. The prosecution also produced following documentary evidence:— Sr. No. Documents Exhs. 1. Yadi sent by police to doctor. 7 2. Certificate of treatment of the deceased 8 3. Yadi for preparing map of place of incident 10 4. Map of place of incident 11 5. Panchnama of the person of deceased 13 6. Panchnama of the place of incident 15 7. Inquest panchnama 18 8. Panchnama of the person of accused 20 9. Yadi sent to Executive Magistrate for recording the statement of the deceased. 22 10. Dying Declaration 23 11. Certified copy of station diary(Extract of station dairy) 30 12. Extract of telephone register 31 13. F.I.R. 32 14. Complaint 34 15. Letter written by P.I. to P.S.O. for registering the complaint. 35 16. Yadi sent to T.D.O. with regard to place of incident 36 17. Letter written by the Executive Magistrate 37 18. Yadi sent to Medical Officer, Deesa 38 19. Letter sent to Executive Magistrate with regard to dying declaration 39 20. Letter with regard to P.M. written by police 40 21. Letter written to J.M.F.C. to add Section 302 of IPC. 41 22. Dispatch Note 42 23. Receipt of F.S.L. with regard to receiving muddamal 43 24. Letter written by F.S.L. to send back the muddamal after analysis 44 25. Report of analysis 45 26. P.M. report 49 27. Certificate with regard to cause of death 50 28. Death certificate 51 29. Copy of Verdhi given by Head Constable of civil hospital to the police constable 55 30. Copy of Verdhi given by head constable to the Executive Magistrate for inquest panchnama 56 31. Yadi sent to Medical Officer of civil hospital for P.M. 57 32. Forwarding letter sent by head constable 58 33. Receipt of dead body 59 6. Copy of Verdhi given by Head Constable of civil hospital to the police constable 55 30. Copy of Verdhi given by head constable to the Executive Magistrate for inquest panchnama 56 31. Yadi sent to Medical Officer of civil hospital for P.M. 57 32. Forwarding letter sent by head constable 58 33. Receipt of dead body 59 6. At the conclusion of the trial, further statement of the appellant was recorded under Section 313 of the Code wherein the appellant denied his involvement in the commission of the offence. 7. Learned Additional Sessions Judge, on the strength of the oral depositions and documentary evidence held that on the date of the incident, the appellant-accused poured kerosene on deceased Mansukhbhai and set him ablaze and thereby deceased Mansukhbhai sustained 70% of the burn injuries. Learned Judge further held that the complaint was given by deceased Mansukhbhai, wherein, he has exhaustively narrated as to how kerosene was poured on his body by the appellant-accused and thereafter he was set on fire. The learned Judge held that Executive Magistrate recorded statement as per the say of the deceased. In the dying declaration, deceased Mansukhbhai indicated involvement of the accused in the commission of offence. Dying declaration is also produced on the record of the case vide Exhibit 23, which is in support of the deposition adduced by P.W. 8 Arjunbhai Jorjibhai Parghi vide Exhibit 21. Learned Judge held that on the basis of the complaint, oral deposition adduced by P.W. 8 Arjunbhai Jorjibhai Parghi vide Exhibit 21 and dying declaration Exhibit 23, the prosecution has established the involvement of the appellant in the commission of offence. Deposition adduced by the Executive Magistrate gets ample corroboration to the prosecution case from the oral deposition Exhibit 6 of P.W. 1 Dr. Naresh Sutaria, panchnama of the place of incident Exhibit 15, inquest panchnama Exhibit 18 and post-mortem report Exhibit 49. Detailed analysis of muddamal article Exhibit 45 further corroborates the prosecution story about involvement of the appellant in the commission of offence. Thus, the learned Judge held that the prosecution, on the basis of cogent and conclusive evidence has proved the entire link connecting the appellant with the commission of offence and, therefore, convicted the appellant for the offence punishable under Section 302 of IPC and awarded rigorous imprisonment for life and fine of Rs. 1,000/-, in default, further rigorous imprisonment for six months. 1,000/-, in default, further rigorous imprisonment for six months. However, the learned Judge acquitted the appellant from the offence punishable under Section 504 of IPC. 8. Learned Advocate Mr. C.L. Soni, representing the appellant submitted that the judgment and order of conviction passed by the learned Judge is contrary to law and facts on the record of the case and, therefore, the same requires to be quashed and set aside. The learned Judge has not appreciated the entire evidence on the record of the case in its true perspective while convicting the appellant for the offence punishable under Section 302 of IPC. The learned Judge, while discussing the involvement of the appellant in the commission of offence has observed that; “except dying declaration of deceased Mansukhbhai, there is no other evidence on the record of the case involving the appellant with the crime.” Learned Advocate submitted that save and except the dying declaration, there is no other corroborative piece of evidence to indicate involvement of the appellant in the commission of offence. Even the dying declaration, when not supported by any corroborative piece of evidence, is required to be examined cautiously in order to find out as to whether the appellant was actually responsible for committing murder of his brother. Deceased Mansukhbhai had prejudice against the appellant and he was having revengeful feeling when his demand was turned down by the appellant and because of the revengeful feeling, he gave dying declaration implicating the appellant in the commission of offence under Section 302 of IPC. In view of the aforesaid facts and circumstances and on proper appreciation of evidence on the record of the case, learned Advocate submitted that the prosecution has not established the entire chain connecting the appellant with the commission of offence and, therefore, he is liable to be acquitted. It has been strenuously contended by the learned Advocate that even though statement of Gangaben, mother of the appellant, was recorded on 29.2.2000, she has not been examined by the prosecution and this lacuna goes to the root of the matter and, therefore, benefit of the same requires to be given to the appellant. It has been strenuously contended by the learned Advocate that even though statement of Gangaben, mother of the appellant, was recorded on 29.2.2000, she has not been examined by the prosecution and this lacuna goes to the root of the matter and, therefore, benefit of the same requires to be given to the appellant. It is submitted that the learned Judge ought to have appreciated that one vital evidence of finger print on the plastic tin alleged to have contained kerosene and lifted by the appellant to pour kerosene on the victim has not been produced during the trial by the prosecution. This lacuna is glaring and considering the same, the learned Judge ought to have acquitted the appellant. Panchas of the place of incident and inquest panchnama have turned hostile and not supported the case of the prosecution, therefore, the learned Judge seriously erred in recording the conviction of the appellant under Section 302 of IPC. Learned Advocate submitted that dying declaration was made by the deceased before the Executive Magistrate in prejudicial manner against the appellant and, therefore, corroboration of such dying declaration is sine qua non for connecting the appellant with the crime. The learned Judge has committed an error in relying on sole dying declaration of the deceased in convicting the appellant for the offence under Section 302 of IPC. The learned Judge ought to have appreciated that incident took place on 20.2.2000, wherein, the deceased received extensive burn injuries. He himself had gone to the hospital in auto rickshaw and thereafter, he also informed the police and after long lapse of time, the Executive Magistrate was called to record the dying declaration of the deceased. It appears from the record of the case that dying declaration was recorded after three to four hours of the incident and, therefore, it was not possible to record the dying declaration of the victim who had received extensive burn injuries; the deceased also would not be in a position to give his version to the Executive Magistrate and, therefore, the dying declaration requires to be discarded. The learned Judge ought to have appreciated the fact that certificate from the doctor and endorsement to be made by the doctor is necessary at the time of recording dying declaration of the victim. Endorsement of the doctor that the patient is in fit condition to make dying declaration is equally important. The learned Judge ought to have appreciated the fact that certificate from the doctor and endorsement to be made by the doctor is necessary at the time of recording dying declaration of the victim. Endorsement of the doctor that the patient is in fit condition to make dying declaration is equally important. These aspects were not considered by the learned Judge while convicting the appellant for commission of the crime, therefore, the conviction and sentence ordered by the learned Additional Sessions Judge requires to be quashed and set aside and the appellant be acquitted for the offence punishable under Section 302 of IPC. 9. Learned Advocate for the appellant has cited the following judgments in support of the submissions canvassed at the Bar:— [1] Mirza Hidayatullah Baig vs. State of Maharashtra, reported in AIR 1979 SC 1525 . [2] P. Mani vs. State of Tamil Nadu, reported in AIR 2006 SC 1319 . [3] Bir Singh and Others vs. The State of Uttar Pradesh, reported in AIR 1978 SC 59 . [4] Chand and Others vs. The State of U.P., reported in AIR 1972 SC 955 . [5] Hari Shankar vs. State of Rajasthan, reported in AIR 1999 SC 2629 . 10. Learned APP Ms. Chetna Shah, representing the State submitted that in order to prove involvement of the appellant in the commission of offence, the prosecution has examined 16 witnesses and produced documentary evidence. P.W. 1 Dr. Nareshkumar Sutaria has been examined vide Exhibit 6. He gave treatment to the deceased when he was admitted in Deesa Civil Hospital after sustaining burn injuries. He has narrated the injuries sustained by the deceased. P.W. 8 Arjunbhai Jorjibhai Parghi, who recorded the dying declaration of the deceased is examined vide Exhibit 21. P.W. 14 Sabalsing Dalpatsing Raol has been examined vide Exhibit 33. He had recorded the complaint given by deceased Mansukhbhai. P.W. 15 Dr. Harsh G. Jadav has been examined vide Exhibit 48. He carried out the post-mortem on the dead body of deceased Mansukh. These witnesses make it abundantly clear that the complaint was given by deceased Mansukhbhai, wherein, he had narrated as to how his brother, the present appellant, poured kerosene on his body and set him ablaze. P.W. 15 Dr. Harsh G. Jadav has been examined vide Exhibit 48. He carried out the post-mortem on the dead body of deceased Mansukh. These witnesses make it abundantly clear that the complaint was given by deceased Mansukhbhai, wherein, he had narrated as to how his brother, the present appellant, poured kerosene on his body and set him ablaze. The depositions given by these witnesses get necessary corroboration from the panchnama of the place of the incident Exhibit 15, inquest panchnama Exhibit 20, dying declaration Exhibit 23, complaint given by deceased Mansukh Exhibit 34 and the report of the FSL Exhibit 45. The prosecution has, on the basis of the oral depositions and documentary evidence, successfully established the involvement of the appellant in the commission of offence beyond all reasonable doubts. The learned Judge has extensively dealt with the oral depositions and documentary evidence on which reliance is placed by the prosecution and considering the reasonings assigned by the learned Judge, the learned APP submitted that no interference is called for in the order of conviction passed by the learned Judge and the same requires to be upheld and the appeal deserves to be dismissed being devoid of merits. Learned APP has placed reliance on the judgment of the Apex Court, in the case of Sudershan vs. State of Delhi, reported in AIR 1974 SC 2328 , in support of the submission that once an intention to cause bodily injury which is sufficient in ordinary course of the nature to cause death is established by the prosecution, then, the case of the appellant would fall under Section 302 of IPC and not under Section 304 Part I or II of IPC. As the prosecution has successfully established beyond all reasonable doubts by adducing cogent and conclusive evidence the involvement of the appellant in the commission of offence of murder under Section 302 of IPC. the order of conviction passed by learned Judge requires to be upheld and appeal deserves to be dismissed. 11. We have heard learned Advocate Mr. C.L. Soni, appearing for the appellant and Ms. Chetna Shah, learned APP representing the State at length and in great detail. We have also perused the reasoning given by the learned Judge in convicting the appellant for the offence punishable under Section 302 of IPC. We have reappreciated and reevaluated the evidence on record of the case. 12. C.L. Soni, appearing for the appellant and Ms. Chetna Shah, learned APP representing the State at length and in great detail. We have also perused the reasoning given by the learned Judge in convicting the appellant for the offence punishable under Section 302 of IPC. We have reappreciated and reevaluated the evidence on record of the case. 12. On reappreciation of the evidence on record of the case, the appellant, on 20.2.2000 at about 18.00 hrs had an altercation with his deceased brother Mansukhbhai, with regard to a share in the property and during altercation, the appellant got infuriated and poured kerosene on the deceased and set him on fire. Complaint [Exhibit 34] was given by deceased Mansukhbhai. On perusal of the complaint Exhibit 34, it becomes clear that the deceased had narrated the incident in an exhaustive manner. He narrated in the complaint that because of the dispute about share in the property, he had a quarrel with his brother, the appellant herein and during the quarrel he had got infuriated and poured kerosene on him and set him on fire. Thereafter, he went to the hospital in an auto rickshaw. During the course of the treatment, P.W. 8 Executive Magistrate Arjunbhai Parghi was called and he recorded dying declaration of deceased Mansukh when he was fully conscious. P.W. 8 Arjunbhai Parghi first approached the doctor who was in charge at the hospital and after ascertaining the fact from the doctor that deceased was conscious, he recorded dying declaration as per the say of deceased Mansukhbhai. He also obtained the signature of deceased Mansukhbhai below the dying declaration. Deceased Mansukhbhai stated in the dying declaration that his brother, the appellant had a quarrel with him and during the quarrel, he poured kerosene on his body and set him ablaze. The dying declaration produced vide Exhibit 23 is signed by deceased Mansukhbhai as well as by the Executive Magistrate. It has been reiterated in the dying declaration by deceased Mansukhbhai as to in what manner, kerosene was poured on the him and after pouring kerosene, how he was set on fire. The dying declaration was given by the deceased when he was fully conscious. Deceased Mansukhbhai had no axe to grind against the appellant to falsely implicate him in the commission of offence punishable under Section 302 of IPC. The dying declaration was given by the deceased when he was fully conscious. Deceased Mansukhbhai had no axe to grind against the appellant to falsely implicate him in the commission of offence punishable under Section 302 of IPC. It has been strenuously contended by the learned Advocate for the appellant that the dying declaration which was given by deceased Mansukh is given in suspicious circumstances and is not free from doubt. The dying declaration given by deceased Mansukh reveals revengeful mind and, therefore, the Court has to be cautious while relying on dying declaration. However, on complete perusal of the record of the case, the dying declaration was given by the victim when he was fully conscious and it was not recorded with a view to falsely implicate the appellant in the commission of offence. Therefore, there is no substance in the contention raised by the learned Advocate for the appellant and the same is hereby rejected. The dying declaration given by deceased Mansukhbhai gets necessary corroboration from the deposition Exhibit 6 adduced by P.W. 1 Dr. Naresh Sutaria. P.W. 1 Dr. Sutaria deposed in his testimony that on 20.2.2000, he was working as Medical Officer in Deesa Civil Hospital and at that time, one PSI came with a Yadi that Mansukhbhai had sustained burn injuries. Thereafter, history given by the patient was recorded and as per his say, his brother, the present appellant, had poured kerosene on him and set him on fire. The patient had sustained second and third degree burns. Nothing turns out from the cross-examination of this witness so as to dislodge his version given in his examination-in-chief. Subsequently, Mansukhbhai was shifted to Civil Hospital at Ahmedabad, where, he ultimately succumbed to the injuries. After the death of Mansukhbhai, post-mortem was performed on his dead body and the doctor who carried out the post-mortem has been examined by the prosecution vide Exhibit 48. P.W. 15 Dr. Harish Jadav carried out post-mortem on 24.2.2000 on deceased Mansukhbhai. In his deposition, Dr. Harish has narrated the external injuries as well as internal injuries sustained by the deceased and as per his report, death of the deceased was caused due to burns. Deposition adduced by P.W. 15 Dr. Harish Jadav gets necessary support from the report of the FSL which has been placed on the record of the case. In his deposition, Dr. Harish has narrated the external injuries as well as internal injuries sustained by the deceased and as per his report, death of the deceased was caused due to burns. Deposition adduced by P.W. 15 Dr. Harish Jadav gets necessary support from the report of the FSL which has been placed on the record of the case. Investigation was carried out in a most scrupulous manner which is reflected in the deposition adduced by P.W. 14 Sabalsing Raol vide Exhibit 33 who was the Investigating Officer. He had recorded complaint of deceased Mansukhbhai and prepared panchnama of place of incident in the presence of the panch witnesses. Inquest panchnama was prepared by the Investigating Officer. Muddamal article recovered was sent to FSL in order to have detailed analysis. He had recorded statements of the witnesses. During his cross-examination, he has deposed that Gangaben, mother of the deceased was not examined, because, Gangaben was not knowing anything about the incident. It has been strenuously contended by the learned Advocate for the appellant that it was incumbent upon the prosecution to have examined Gangaben, mother of the deceased, as witness. But in view of the clarification given by the Investigating Officer in his cross-examination that, Gangaben was not knowing anything, she was not examined by the prosecution, the contention raised by the learned Advocate deserves to be rejected and it is hereby rejected. The defence side did not examine Gangaben though it had ample opportunity in order to elicit truth and therefore, this contention raised by the learned Advocate for the appellant has no merit. It is also argued by the learned Advocate that finger print of the appellant was not taken by the prosecution. This submission also has no merit, because, the prosecution has established involvement of the appellant in the commission of offence by relying on the complaint Exhibit 34, dying declaration recorded by P.W. 8 Arjunbhai Parghi vide Exhibit 23 and the deposition adduced by P.W. 1 Dr. Naresh Sutaria vide Exhibit 6. Therefore, the prosecution has completely established the involvement of the appellant in the commission of offence and we do not think that there was any lacuna in the investigation carried out by the prosecution. Naresh Sutaria vide Exhibit 6. Therefore, the prosecution has completely established the involvement of the appellant in the commission of offence and we do not think that there was any lacuna in the investigation carried out by the prosecution. It has been contended by the learned Advocate for the appellant that even though independent witnesses were available from the neighbourhood, they were not examined with a view to prove involvement of the appellant in the commission of offence. But in view of the overwhelming evidence adduced by the prosecution, there was no need to examine the independent witnesses. The prosecution has, by adducing oral depositions and documentary evidence, proved involvement of the appellant in the commission of offence beyond all reasonable doubts and, therefore, the learned Judge has rightly convicted the appellant for the offence punishable under Section 302 of IPC. 13. Learned Advocate for the appellant submitted that if this Court comes to a conclusion that the appellant has committed an offence under Section 302 of IPC, then, considering the overall evidence on the record of the case, it becomes clear that punishment is too harsh and, therefore, provisions of Section 304 Part II require to be invoked as there was no intention on the part of the appellant to kill his brother. As per the dying declaration, it becomes clear that the appellant poured kerosene on his brother and set him on fire because of the quarrel, wherein, the deceased demanded his share in the house. Learned Advocate placed heavy reliance on Exception-3 of Section 300 of IPC and submitted that it is incumbent upon the prosecution to prove that there was an intention to inflict with bodily injury, i.e. that it was not accidental or unintentional or that some other injury was intended. Thus, it is urged that considering the case of the appellant which would fall under Exception-3 of Section 300, the appellant requires to be convicted for the offence punishable under Section 304 Part II of IPC and since the appellant has already undergone approximately 6 years’ sentence as on today, he requires to be imposed punishment, which he has already undergone under Section 304 Part II of IPC. This submission, in our view, has no merit considering the evidence on the record of the case. Complaint was given by deceased Mansukh vide Exhibit 34 and the dying declaration is produced at Exhibit 32. This submission, in our view, has no merit considering the evidence on the record of the case. Complaint was given by deceased Mansukh vide Exhibit 34 and the dying declaration is produced at Exhibit 32. On perusal of the complaint as well as the dying declaration, it becomes clear that the appellant, during the quarrel poured kerosene on deceased Mansukh and set him ablaze with full knowledge that such act is likely to result into death of his brother. Murder, in our view, was committed in most gruesome and ghastly manner and, therefore, considering the totality of oral depositions and documentary evidence, the case of the appellant would not fall under Section 304 Part II of IPC. Ratio laid down in the judgment of the Apex Court in the case of Sudarshan vs. State of Delhi [Supra], makes it clear that in case of murder when bodily injury which is caused is sufficient in ordinary course of nature to cause death and when the deceased had received nearly 70% burn injuries, then, it cannot be held that there was no intention on the part of the appellant to cause bodily injury, which, in ordinary course of nature would cause death of the deceased. In view of the aforesaid facts and circumstances of the case, the appellant, in our view has not made out a case for acquittal and, therefore, the appeal deserves to be dismissed. 14. For the foregoing reasons, the appeal preferred by the appellant is dismissed and the judgment and order dated 21.7.2003 rendered by the learned Additional Sessions Judge, [Second Fast Track Court] Banaskantha District at Deesa in Sessions Case No. 58 of 2000 convicting the appellant for the offence punishable under Section 302 of IPC and awarding rigorous imprisonment for life and fine of Rs. 1,000/-, in default, further rigorous imprisonment for six months, is hereby confirmed.