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2011 DIGILAW 374 (GUJ)

Kanaiyalal Biharilal Lalwani v. State of Gujarat

2011-05-02

A.L.DAVE, BANKIM N.MEHTA

body2011
Judgment Bankim N. Mehta J.—The appellant accused has preferred this appeal under Section 374 of the Code of Criminal Procedure, 1973 and has challenged the judgment and order of conviction and sentence dated 26.6.2005 passed by the learned Addl. Sessions Judge, Fast Track Court No. 3, City Sessions Court, Ahmedabad City in Sessions Case No. 248 of 2004 convicting him for the offence u/s 302 and 436 of the IPC and sentencing him to undergo life imprisonment and to pay fine of Rs. 2000/- in default to undergo three months’ imprisonment for the offence punishable under Section 302 of the IPC and RI for ten years and to pay fine of Rs. 2000/- in default to undergo three months’ imprisonment for the offence punishable under Section 436 of the IPC. 2. According to the prosecution case, deceased Sureshbhai was the brother of accused and were doing business of readymade garments. Before about 7 months’ of the incident, the accused was relieved from the shop and keeping grudge of the same, on 4.11.2003 at about 21:45 hrs., the accused sprinkled inflammable liquid on deceased Sureshbhai in his shop and threw ignited paper. On account of the burn injuries, Sureshbhai died and the shop sustained damages of Rs. 76,000/-. 3. On the basis of first information lodged by deceased Sureshbhai before Kalupur Police Station, Ahmedabad, offence was registered and investigation was started. During the course of treatment, dying declaration of Sureshbhai was recorded. During the treatment, Suresbhai died. On completion of investigation, charge sheet was filed against the accused for the aforesaid offences in the court of learned Metropolitan Magistrate, Ahmedabad. As the offence was triable by the court of Sessions, the case was committed to the Sessions Court and it was registered as Sessions Case No. 248 of 2004. Learned Addl. Sessions Judge, Fast Track Court No. 3, City Sessions Court, Ahmedabad City framed charge Exh-3 for the aforesaid offence against the accused. The charge was read over and explained to him. The accused pleaded not guilty to the charge and claimed to be tried. Therefore, the prosecution adduced evidence. At the end of recording of evidence, incriminating circumstances appearing in the evidence were explained to the accused. The charge was read over and explained to him. The accused pleaded not guilty to the charge and claimed to be tried. Therefore, the prosecution adduced evidence. At the end of recording of evidence, incriminating circumstances appearing in the evidence were explained to the accused. The accused in his further statement recorded under Section 313 of the Code of Criminal Procedure, 1973 denied having committed the offence and also filed written statement stating that there was no dispute between them and on hearing the news about fire, Komal – wife of the deceased sent his son Gaurav to his place. Therefore, he went at the market with one Chaturbhai and learnt that Sureshbhai has sustained burns and is taken to Civil Hospital. Therefore, he went to Civil Hospital. Thus, false case is filed against him and he feels that Sureshbhai has committed suicide, as he had earlier taken three insurance policies. After hearing learned advocates for the parties, learned trial Judge by his judgment dated 26.6.2005 convicted the accused and sentenced him as mentioned herein above. Being aggrieved by the said decision, the accused has preferred this appeal. 4. We have heard learned advocate Mr. Dave for the appellant and learned APP Mr. Pandya for the respondent State at length and in great detail. We have also perused the record and proceedings. 5. Learned advocate Mr. Dave has mainly submitted that the deceased was treated in the Civil Hospital for his burn injuries and therefore, he might have been administered sedatives and therefore, he must be in a drowsy condition and hence his dying declaration could not have been recorded and therefore, the dying declaration cannot form basis for conviction. He has also submitted that no signature or thumb impression is obtained on the dying declaration and the FIR allegedly given by the deceased bears right toe impression on it, but the postmortem report Exh-9 does not indicate any such mark on the toe. Therefore, the FIR does not inspire any confidence. He has also submitted that the Executive Magistrate has recorded the dying declaration without receipt of police yadi. Therefore, it creates doubt about the genuineness of the dying declaration. Therefore, the FIR does not inspire any confidence. He has also submitted that the Executive Magistrate has recorded the dying declaration without receipt of police yadi. Therefore, it creates doubt about the genuineness of the dying declaration. He has also submitted that there was no motive to commit the offence as relations between the deceased and the accused were cordial and despite fire in the shop, a plastic container found near the place of incident was intact. Therefore, it raises doubt as to whether the container contained the inflammable substance allegedly used in the commission of offence. Therefore, benefit of doubt is required to be given to the accused and the conviction is required to be set aside. 6. Learned APP Mr. Pandya has submitted that the dying declaration and the FIR are consistent and the Executive Magistrate has also recorded that the hands of the victim were wrapped with bandage and therefore, thumb impression could not be obtained on the dying declaration. He has also further submitted that there were strained relations between the accused and the victim and in view of the fact that there is consistent evidence with regard to involvement of the accused, the motive becomes insignificant. He has also submitted that Yadi given by the police to the Executive Magistrate was produced on record of the case and the Executive Magistrate was called on telephone to record the dying declaration. There is nothing wrong in adopting such practice. He has also submitted that the postmortem report Exh-9 supports the version of the Executive Magistrate, as it indicates that the entire body from neck to foot was wrapped with white hospital bandages. He has further submitted that the prosecution has established guilt of the accused beyond reasonable doubt and therefore no error is committed by the trial Court in convicting the accused. Hence, no interference is warranted in the judgment passed by the trial Court and the appeal is required to be dismissed. 7. The prosecution has examined the Executive Magistrate PW 3 Manjibhai Jethabhai at Exh-14. The witness recorded the dying declaration. According to the witness, he went to the Hospital to record the dying declaration and after obtaining endorsement of the doctor with regard to state and health of the patient, he went to the patient and sent relatives of the patient and police staff away and started recording dying declaration. The witness recorded the dying declaration. According to the witness, he went to the Hospital to record the dying declaration and after obtaining endorsement of the doctor with regard to state and health of the patient, he went to the patient and sent relatives of the patient and police staff away and started recording dying declaration. The witness has also stated that he had put questions to the patient and the replies were recorded and as both the hands were wrapped with bandages, he could not obtain signature or thump impression on it, and hence, recorded the same fact on the dying declaration and signed below the same. The witness has been cross examined at length. It is significant that the witness has not been cross examined with regard to state of health of the victim. The evidence indicates that the witness obtained endorsement with regard to state of health of the victim from the doctor before starting recording of the dying declaration and even on completion of the same. The witness has been cross examined with regard to the fact that the witness did not receive yadi from the police to record the dying declaration. It emerges from the deposition that the witness was informed on telephone by the police to go to record the dying declaration and pursuant thereto, he went to the Hospital to record the dying declaration and recorded the same. In our view, no illegality is committed by the witness in recording dying declaration as he was informed by the police to go to the Hospital to record the dying declaration. 8. The dying declaration Exh-15 indicates that it was recorded between 00:25 hrs. and 00:50 hrs. on 5.11.2003. It is in the question and answer form. It also bears endorsement of the doctor that the patient was conscious and able to speak. It also bears endorsement by the witness that the statement has been read over to the declarant and as both the hands are wrapped with bandages, signature or thumb impression could not be obtained. It also bears endorsement that the witness ascertained that the declarant was conscious and was in a condition to give his statement. 9. The prosecution has also produced Yadi given by the police to the Executive Magistrate to record the dying declaration at Exh-17. It also bears endorsement that the witness ascertained that the declarant was conscious and was in a condition to give his statement. 9. The prosecution has also produced Yadi given by the police to the Executive Magistrate to record the dying declaration at Exh-17. It also bears endorsement by the doctor before recording of the dying declaration and after completion of recording of dying declaration that the patient was conscious and was able to speak. 10. In view of above evidence, it clearly emerges that the Executive Magistrate on receiving the information from the police went to the Hospital to record the dying declaration and obtained endorsement of the doctor with regard to state and health of the declarant. The witness himself ascertained that the declarant was conscious and in fit state of mind to give dying declaration with regard to the incident. Therefore, in our view, the prosecution has successfully established that the dying declaration was trustworthy. Learned advocate for the appellant has not been able to point out any infirmity in the dying declaration. The dying declaration Exh-15 implicates the accused. Therefore, the trial Court was justified in relying upon the dying declaration to connect the accused with the offence. 11. The prosecution has also produced FIR at Exh-22. It is recorded at Civil Hospital and was given by deceased Sureshbhai himself. It is stated therein that at about 9:45 at night while he was at his shop, the accused with container filled with inflammable substance came there, picked up quarrel, poured inflammable substance, ignited paper and threw it on him. The FIR bears left toe impression. It was submitted by the learned advocate Mr. Dave that the postmortem report does not indicate the ink marks on the toe and therefore, the FIR could not be believed. It appears from the postmortem report Exh-9 that the entire body from neck to foot was wrapped with white hospital bandages. PW 3 Dr. Kishanlal Ramabhai Solanki at Exh-8, who performed the postmortem, deposed that the deceased had about 95% burns on his body. He has also submitted that his both hands and legs had 2nd and 3rd degree burns. In view of this evidence, it is quiet obvious that no ink mark would be visible even if toe impression is obtained on the FIR. He has also submitted that his both hands and legs had 2nd and 3rd degree burns. In view of this evidence, it is quiet obvious that no ink mark would be visible even if toe impression is obtained on the FIR. In view of the fact that there is consistent evidence of dying declaration and the FIR, the submission that the postmortem report does not indicate ink mark FIR cannot be believed, cannot be accepted. From the postmortem report Exh-9 and evidence of PW 11 Dr. Kishanlal, it appears that the victim died on account of burn injuries and the cause of death was shock due to excessive burns over body. The accused raised a defence that the deceased committed suicide, but in view of the evidence of PW 1 Dr. Kishanlal Ramabhai Solanki and postmortem report, it clearly emerges that the death was homicidal in nature. 12. The prosecution has also examined PW 2 Komalben Sureshchandra at Exh-13. The witness is widow of the deceased. According to her, there were disputes between the accused and the deceased and the relations between them were strained. The witness has been cross examined in detail, but the defence has not been elicit that there was no motive for the accused to commit the offence. Even otherwise also, in view of the fact that there is direct evidence with regard to involvement of the accused in the offence, the motive has become insignificant and therefore, this submission with regard to motive does not require any elaborate discussion. 13. It also emerges from the prosecution evidence that the shop wherein the incident took place also sustained damages. The articles lying in the shop were also damaged in the incident. Therefore, the learned trial Judge was justified in convicting the accused for the offence under Section 436 of the IPC. 14. In view of above, in our view, the learned trial Judge was justified in recording conviction of the appellant for the offence under sections 302 and 436 of the IPC and hence, no interference is warranted in the impugned judgment. The appeal, therefore, fails and stands dismissed.