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Gujarat High Court · body

2015 DIGILAW 932 (GUJ)

State of Gujarat v. Chandrashekhar

2015-09-22

K.J.THAKER, M.R.SHAH

body2015
JUDGMENT : M.R. Shah, J. 1. Feeling aggrieved and dissatisfied with the impugned judgment and order of acquittal passed by the learned Additional Sessions Judge, Ahmedabad (Rural) passed in Sessions Case No. 38 of 1991 acquitting the respondent herein - original accused for the offence punishable under Section 302 r/w Section 114 of the Indian Penal Code and Section 498A of the Indian Penal Code, the State has preferred present Criminal Appeal. 2. The case of the prosecution in nutshell is that the deceased Fuladevi and original accused No. 1 Chandrashekhar were husband and wife and the deceased Fuladevi was the Bhabhi of original accused No. 2- Surendraprasad. As per the prosecution case as the deceased has no issue/child, both of them were giving mental and physical tortured to her. As per the case of the prosecution on 4.9.1990 at about 7 p.m. in the evening the husband poured the kerosene on her and original accused No. 2 set her ablaze by match stick and due to intensive burn injuries, deceased died. Therefore, it was alleged that both the accused have committed the offence punishable under Sections 302, 498A and 114 of the Indian Penal Code. That the deceased was immediately taken to the hospital. Immediately Yadi was sent to the Executive Magistrate for recording dying declaration of the victim and the Executive Magistrate when went to the Hospital at about 21:00 on 5.9.1990 the victim was not conscious and therefore, the Executive Magistrate went back. However, as soon as the victim become conscious, immediately the Police Sub Inspector, Shahibaugh Police Station, Ahmedabad sent a Yadi to Executive Magistrate requesting to come for recording dying declaration. The said Yadi was sent at 11:50 on 5.9.1990 (Exh.19). Immediately, Executive Magistrate rushed to the Hospital for recording dying declaration of the victim and he recorded dying declaration of the victim at about 12:35 on 5.9.1990. The dying declaration was completed at 12:55. that the statement of the Fuladevi was also recorded by PSI, Maknabhai Parmar, which was registered as FIR by the concerned Police Officer of Shahibaugh Police Station (Exh.46). That pursuant to the said FIR, PSI of Shahibaugh Police Station started investigation. He recorded the statement of the concerned witnesses. He also collected the documentary evidence against the accused. that the statement of the Fuladevi was also recorded by PSI, Maknabhai Parmar, which was registered as FIR by the concerned Police Officer of Shahibaugh Police Station (Exh.46). That pursuant to the said FIR, PSI of Shahibaugh Police Station started investigation. He recorded the statement of the concerned witnesses. He also collected the documentary evidence against the accused. On conclusion of the investigation, the Investigating Officer submitted the charge sheet against the accused for the offence punishable under Sections 302, 498A r/w Section 114 of the Indian Penal Code. As the case was exclusively triable by the Court of Sessions, learned Magistrate committed the case to the Sessions Court, Ahmedabad (Rural). That the learned Sessions Court framed the charge at Exh.3 against both the accused for the offence under Sections 302, 498A and 114 of the Indian Penal Code. Both the accused pleaded not guilty and therefore, both the accused came to be tried by the learned Sessions Court for the aforesaid offences. 2.1. To prove the case against the accused prosecution examined as many as 9 witnesses as under: PW. No. Name of the witness Exh. No. 1 Dr. Bimal Goswami 10 2 Gordhanbhai Ramchandra 13 3 Bhavansinh V Chavda 15 4 Lakhman Parghi 18 5 B. Vaudev Nair 22 6 Satyaprakash Rayan 23 7 Joginder Prasad 27 8 Sukhjitsing 31 9 Maknabhai Parmar 45 2.2. Through the aforesaid witnesses, prosecution brought on record following documentary evidence: Sr. No. Documentary Evidence Exh. No. 1 Postmortem Note 11 2 Panchnama of Muddamal 14 3 Police Yadi 16 4 Panchnama 17 5 Dying Declaration 20 6 List of documents 09 7 FSL report 56 2.3. However, despite the complaint given by deceased herself recorded by the PSI Maknabhai Parmar (Exh.46), in which, deceased narrated entire incident and specifically stated that original accused Nos. No. 1 Postmortem Note 11 2 Panchnama of Muddamal 14 3 Police Yadi 16 4 Panchnama 17 5 Dying Declaration 20 6 List of documents 09 7 FSL report 56 2.3. However, despite the complaint given by deceased herself recorded by the PSI Maknabhai Parmar (Exh.46), in which, deceased narrated entire incident and specifically stated that original accused Nos. 1 and 2 poured the kerosene on her and original accused No. 2 set her ablaze by match stick and despite the dying declaration before the Executive Magistrate, by impugned judgment and order learned trial Court has held that the prosecution has failed to prove the case against the accused and discarding dying declaration of the deceased recorded before Executive Magistrate, Shri Parghi and relying upon the deposition of one Shri B. Vasudev Nair and Shri Satyaprakash Shivnarayan, as such were declared hostile, the learned trial Court has acquitted both the accused for the offence under Section 302, 498A and 114of the Indian Penal Code. Hence, appellant State has preferred present Criminal Appeal. 3. Shri H.K. Patel, learned Additional Public Prosecutor appearing on behalf of the State has vehemently submitted that the learned trial Court has materially erred in acquitting both the accused for the offence under Sections 302, 498A and 114 of the Indian Penal Code. 3.1. It is further submitted by Shri Patel, learned Additional Public Prosecutor that the learned trial Court has materially erred in discarding the dying declaration recorded by the Executive Magistrate Shri Parghi and deposition of Executive Magistrate. 3.2. It is submitted that in the dying declaration which given by the deceased recorded by the Executive Magistrate, the deceased who at the relevant time was conscious had specifically stated that it was original accused No. 2 and her husband poured kerosene on her and original accused No. 2 set her ablaze by match stick. It is submitted that she categorically stated that both the accused were frequently and time and again harassing and giving mental and physical tortured to her as she had no issue/child. It is submitted that the learned trial Court ought to have appreciated that Executive Magistrate Shri Parghi was an independent witness. 3.3. It is submitted that she categorically stated that both the accused were frequently and time and again harassing and giving mental and physical tortured to her as she had no issue/child. It is submitted that the learned trial Court ought to have appreciated that Executive Magistrate Shri Parghi was an independent witness. 3.3. It is further submitted by Shri Patel, learned Additional Public Prosecutor that even the complaint was given by deceased herself which was recorded by PSI- Maknabhai Parmar (PW No. 9) and in which also deceased Fuladevi specifically stated that her husband poured the kerosene on her and original accused No. 2 set her ablaze by match stick and thereafter both of them closed the door and she started shouting and the neighbors came and took her to the hospital. It is submitted that despite the aforesaid overwhelming evidence and two dying declarations recorded, one before the PSI- Maknabhai Parmar in the form of complaint at Exh.46 and another before the Executive Magistrate, the learned Judge has materially erred in acquitting the accused. It is submitted that unfortunately the learned trial Court has discarded the dying declaration of the deceased before the Executive Magistrate on flimsy ground and/or considering the deposition of Shri B. Vasudev Nair and Shri Satyaprakash Shivnarayan who were in fact declared hostile. It is submitted that therefore, the findings recorded by the learned trial Court while acquitting the accused are perverse and contrary to the evidence on record. It is submitted that therefore, this is a fit case to reverse the acquittal and quash and set aside the impugned judgment and order and consequently to punish the accused for the offences under Sections 302, 498A and 114 of the Indian Penal Code. 4. Shri Thakore, learned advocate for the accused has tried to oppose the present appeal and support the impugned judgment and order of acquittal passed by the learned trial Court. 4.1. It is vehemently submitted by Shri Thakore, learned advocate for the accused that as such this is an appeal against the order of acquittal passed by the learned trial Court. It is submitted that therefore, the parameters while deciding the appeal against the order of acquittal would be different than that of deciding the appeal against the order of conviction. It is vehemently submitted by Shri Thakore, learned advocate for the accused that as such this is an appeal against the order of acquittal passed by the learned trial Court. It is submitted that therefore, the parameters while deciding the appeal against the order of acquittal would be different than that of deciding the appeal against the order of conviction. It is submitted that unless and until the findings recorded by the learned trial Court are found to be perverse and/or contrary to the evidence on record and if two view are possible on the basis of the evidence on record and the learned trial Court has acquitted the accused accepting one view, the order of acquittal is not required to be set aside. In support of his above submission, he has relied upon the decisions of the Hon'ble Supreme Court in the case of Raj Singh v. State of Haryana reported in (2015) 6 SCC 268 as well as in the case of Golbar Hussain & Ors. v. State of Assam and Anr., reported in (2015) AIR SCW 3248. Relying upon the aforesaid decisions, it is submitted that as held by the Hon'ble Supreme Court in the aforesaid decisions where the judgment of the learned trial Court is based on evidence and the view taken is plausible, the appellate Court is not justified in interfering with the order of acquittal. It is submitted that in the present case the view taken by the learned Judge is on appreciation of evidence and the same is reasonable, it is requested not to interfere with the order of acquittal passed by the learned trial Court. 4.2. It is vehemently submitted by Shri Thakore, learned advocate for the accused that in the facts and circumstances of the case and on appreciation of evidence, the learned trial Court has rightly discarding the dying declaration made by the deceased before the Executive Magistrate looking to the time gap between the deceased was taken to the hospital and recording of the dying declaration. 4.3. It is submitted that as rightly observed by the learned trial Court in between there was sufficient time to tutor the victim and/or falsely implicate the accused by the deceased. It is submitted that two prosecution witnesses Shri B. Vasudev Nair- PW No. 5 and Shri Satyaprakash Shivnarayan- PW No. 8 as such did not support the case of the prosecution. It is submitted that two prosecution witnesses Shri B. Vasudev Nair- PW No. 5 and Shri Satyaprakash Shivnarayan- PW No. 8 as such did not support the case of the prosecution. It is submitted that both the aforesaid witnesses were immediately where with the deceased while she was taken to the hospital. It is submitted that considering the aforesaid facts and circumstances and by giving cogent reasons in para 13, the learned trial Court has rightly acquitted the accused. Making above submissions and relying upon the above decision, it is requested to dismiss the present appeal. 5. Heard the learned advocates for the respective parties at length. We have scanned and re-appreciated entire evidence on record both oral as well as documentary. 5.1. At the outset, it is required to be noted and it is not in dispute that death of the deceased Fuladevi was a homicidal death. Even otherwise, considering the deposition of Dr. Bimal Goswami (PW No.1) who performed the postmortem of the deceased and as per cause of death mentioned in the postmortem report death of deceased was due to shock as a result of burns and its complications. As per the deposition of Dr. Bimal Goswami- PW No. 1 and burns injury sustained by the deceased Fuladevi, deceased had sustained following burns injuries: "(i). 1st to 2nd degree burns over face and neck. (ii). 2nd to 3rd degree burns over both upper limbs. (iii). 3rd to 4th degree burns over anterior and posterior of the chest. (iv). 2nd to 3rd degree burns over anterior and posterior aspect of abdomen. (v). 3rd to 4th degree burns over both things. (vi). 2nd to 3rd degree over both legs from knee joint to the ankle." From the aforesaid, we hold that death of the deceased was homicidal death. 6. Now, the next question which is posed for consideration of this Court as to whether prosecution has been able to successfully prove by leading cogent evidence that both the accused had committed the offence under Sections 302, 498-A and 114 of the Indian Penal Code? 6.1. At the outset, it is required to be noted that as such there are two dying declaration of the deceased one in the form of complaint recorded by PSI- Maknabhai Parmar (Exh.46) and one recorded by Executive Magistrate- Shri Parghi. 6.1. At the outset, it is required to be noted that as such there are two dying declaration of the deceased one in the form of complaint recorded by PSI- Maknabhai Parmar (Exh.46) and one recorded by Executive Magistrate- Shri Parghi. PW No. 9 Maknabhai in his deposition has specifically stated that he had recorded the statement/complaint given by Fuladevi as per her say and he got thumb impression of the complainant on her statement/complaint. From the deposition of the said witness, it appears that Fuladevi gave the complaint which was recorded by the PSI immediately after she was admitted to the hospital and at that time she was conscious and taking treatment. In the complaint given by the deceased herself (Exh.46), the deceased had specifically stated that both the accused were ill-treating and giving mental and physical torture to her and used to quarrel with her time and again. In the complaint, she had specifically stated that at about 6 p.m. on the date of incident her husband came from job and her Diyar (brother in law) was at the house, they started torturing and abusing her and thereafter her husband caught hold of her and poured the kerosene on her by original accused No. 2 - her younger brother in law and set her ablaze by match stick and both of them thereafter gone out and closed the door and as because of severe pain, had started shouting. She has also stated that the incident had taken place at 7 p.m. Prosecution Witness No. 9 Maknabhai Parmar who recorded the complaint of deceased (Exh.49) which can be said to be first dying declaration of the deceased before the ASI has been fully cross examined by the defence, however the defence has failed to bring out anything against the case of the prosecution. In the cross examination also, the said witness has fully stick to his version in the examination in chief and has fully supported the case of the prosecution. 6.2. The next important witness - Executive Magistrate- Shri Parghi (PW No. 4) has stated in his examination in chief that he received one yadi from Shahibaugh Police Station at about 11:50 on 5.9.1990 for recording dying declaration of the deceased. The said yadi is at Exh.19. 6.2. The next important witness - Executive Magistrate- Shri Parghi (PW No. 4) has stated in his examination in chief that he received one yadi from Shahibaugh Police Station at about 11:50 on 5.9.1990 for recording dying declaration of the deceased. The said yadi is at Exh.19. In the said yadi Exh.19, it is specifically stated that earlier yadi was sent to the Executive Magistrate for recording the dying declaration at about 21:00 and the Executive Magistrate came but has returned as victim was unconscious. In the said Yadi which was sent at 11:50 in the next morning on 5.9.1990, it has been specifically mentioned that the victim is fully conscious. The said witness Parghi- Executive Magistrate had thereafter stated that immediately he rushed to the burns room, he asked lady who was sleeping and she stated her name is Fuladevi. That thereafter, he started recording dying declaration at about 12:35 and he completed recording of dying declaration at 12:55. He has also specifically stated that as both hands were having burn injury, it was not possible at that time to get even thumb impression and therefore, he made noting to the aforesaid effect. The dying declaration is exhibited at Exh.20 which bears endorsement of the doctor that the victim is conscious. The said witness is also thoroughly and fully cross examined by the defence. However, the defence has failed to bring anything in the cross examination against the case of the prosecution. He has specifically denied in the cross examination that at the time when he recorded dying declaration the victim was not conscious. He has also specifically denied that Fuladevi has not given any dying declaration. In the dying declaration (Exh.20) the victim had specifically stated that on 4.9.1990 both the accused quarrel with her and thereafter her husband poured the kerosene on her and her younger brother in law set her ablaze and thereafter neighbor saved her and taken her to the hospital. The said PW No. 4 Executive Magistrate- Parghi is an independent witness and there is no reason to doubt him. There is no reason not to rely upon the deposition of the Executive Magistrate Shri Parghi and the dying declaration Exh.20. The said witness has fully supported the case of the prosecution. The said PW No. 4 Executive Magistrate- Parghi is an independent witness and there is no reason to doubt him. There is no reason not to rely upon the deposition of the Executive Magistrate Shri Parghi and the dying declaration Exh.20. The said witness has fully supported the case of the prosecution. At this stage, it is required to be noted that whatever is stated by Smt. Fuladevi before the Executive Magistrate which was recorded about 12:55 on 5.9.1990, she stated the same things before the PSI, Shahibaugh Police Station it was recorded as complaint (Exh.46), which was recorded just after the victim Fuladevi was taken to the hospital i.e. on 4.9.1990 itself. Despite the above, unfortunately learned trial Court has discarded the dying declaration (Exh.20) recorded by the Executive Magistrate Shri Parghi mainly on the ground that when the dying declaration was recorded by Shri Parghi which was at about 12.55 on 5.9.1990 in between there was sufficient time with the victim to think. From the reasoning given by the learned trial Court, it appears that the learned Judge has discarded or not believed and/or not relied upon the dying declaration recorded by the Executive Magistrate Shri Parghi (Exh.20), relying upon and/or considering the deposition of two witnesses Shri B. Vasudev Nair- PW No. 5 and Shri Satyaprakash Shivnarayan- PW No. 8 who as such were declared hostile and by further observing that both the aforesaid witnesses have not supported the case of the prosecution. 6.3. The aforesaid reasons given by the learned trial Court while discarding the dying declaration recorded by the Executive Magistrate - Parghi (Exh.20) is perverse and contrary to the evidence on record. At this stage, it is required to be noted that the prosecution has been successful in proving that at the time when PSI recorded the complaint which was given by the deceased herself (Exh.46) when the Executive Magistrate Shri Parghi recorded dying declaration at 12.55 on 5.9.1990 (Exh.20) the deceased was conscious. As observed herein above, in the deposition both the aforesaid witnesses have categorically stated that at the relevant time when they recorded the complaint and the dying declaration respectively, Fuladevi was conscious. In the yadi which was sent to the Executive Magistrate (Exh.19) which was sent at 11:50 on 5.9.1990, it is specifically stated that Fuladevi is conscious. As observed herein above, in the deposition both the aforesaid witnesses have categorically stated that at the relevant time when they recorded the complaint and the dying declaration respectively, Fuladevi was conscious. In the yadi which was sent to the Executive Magistrate (Exh.19) which was sent at 11:50 on 5.9.1990, it is specifically stated that Fuladevi is conscious. Even in the dying declaration at Exh.20, there is endorsement by the doctor that the patient is conscious. In light of the aforesaid overwhelming evidence on record, learned Judge has materially erred in not holding the accused guilty for the offence punishable under Sections 302, 498-A and 114 of the Indian Penal Code and consequently acquittal resulting into miscarriage of justice. 6.4. The findings recorded by the learned trial Court are perverse and contrary to the evidence on record, which cannot be sustained. 7. We are conscious of the fact that present appeal is against the order of acquittal and we are also conscious of the limitation while deciding the appeal against the order of acquittal. However, as observed herein above, while discarding the dying declaration recorded by the Executive Magistrate - Shri Parghi (Exh.20) and the findings recorded by the learned trial Court while acquitting the accused for the serious offence of burning and offence under Sections 302, 498-A and 114 of the Indian Penal Code, are perverse and contrary to the evidence on record. Under the circumstances, law laid down by the Hon'ble Supreme Court in the case of Ashokrai v. State of Uttar Pradesh and others reported in (2014) 5 SCC 713 as well as in the case of Anjanappa v. State of Karnatka reported in (2014) 2 SCC 776 , we are of the firm opinion that this is fit case to reverse the order of acquittal passed by the learned trial Court. 8. In view of the above and for the reasons stated above, present appeal succeeds. The impugned judgment and order dated 29.04.1992 in Sessions Case No. 38 of 1991 passed by the learned Additional Sessions Judge, Mirzapur, Ahmedabad is hereby quashed and set aside and respondents herein original accused are hereby convicted for the offences punishable under Section 302 r/w Section 114 of the Indian Penal Code and are sentenced to undergo life imprisonment. As it is reported that both the accused are on bail, their bail bond shall stand cancelled. As it is reported that both the accused are on bail, their bail bond shall stand cancelled. Time to surrender to the original accused is granted upto 26.10.2015. Present appeal is accordingly allowed.