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2025 DIGILAW 541 (GUJ)

State Of Gujarat v. Manojbhai Madhubhai Surti

2025-06-24

CHEEKATI MANAVENDRANATH ROY, D.M.VYAS

body2025
JUDGMENT : (PER : HONOURABLE MR. JUSTICE CHEEKATI MANAVENDRANATH ROY) 1. Challenge in this appeal is to the judgment dated 29.10.2012 rendered in Sessions Case No.150 of 2011 on the file of the learned 5 th (Ad-hoc) Additional Sessions Judge, Surat, whereby the sole accused, who is respondent no.1 herein was acquitted of the charge under Sections 302 and 504 of the INDIAN PENAL CODE , 1860 (for short “the IPC”) 2. Facts of the prosecution case lie in a narrow compass and may be stated as follows:- 2.1 The deceased by name Chandrikaben Manojbhai Maadhubhai Surti (hereinafter referred as “the deceased”) is the legally wedded wife of the accused. They got a son and a daughter during their lawful wedlock. The accused has got a doubt on the character of the deceased and he has been suspecting her fidelity. The accused has been suffering from a partial paralysis, therefore, on the fateful day i.e. on 26.06.2011 afternoon, the accused along with his minor daughter went to purchase medicines for him. They returned home at about 1:15 p.m. in the afternoon on that day. After his return, a quarrel took place between the accused and his wife in his house as he got doubt over her character. During the said quarrel, the accused went into the kitchen of his house and brought a kerosene stove and has poured the kerosene on the deceased in the second room of the house and lit the matchstick and set her ablaze. She sustained burn injuries in the said attack. The accused tried to extinguish the fire on her body with a blanket available in the room. After hearing her shouts, the elder brother of the accused, who is also residing in the same street nearby the house of the accused, came to the house of the accused along with his wife and children and they all took her to the hospital. On the medical intimation given by the hospital authorities, the Executive Magistrate visited the hospital and recorded the statement of the injured at about 9:44 p.m. on that night. She has stated before the Executive Magistrate in her statement that the accused got doubt on her and he has poured kerosene on her and lit the matchstick and set her ablaze and she also stated that she has given the said statement without any pressure on her own volition. She has stated before the Executive Magistrate in her statement that the accused got doubt on her and he has poured kerosene on her and lit the matchstick and set her ablaze and she also stated that she has given the said statement without any pressure on her own volition. 2.2 Thereafter, the Police Sub Inspector of the concerned police station visited the hospital on the same day and he recorded the statement of the injured at about 11:15 p.m. on that night. In her statement given to the police also, she stated that the accused got doubt over her character and on the afternoon of that day, that the accused poured kerosene on her and lit the matchstick and set her ablaze and she sustained burn injuries in the said attack. The said statement was initially recorded by the police as an FIR for the offence punishable under Section 307 of the IPC. 2.3 Thereafter, the injured succumbed to the burn injuries sustained by her on the night of 29.06.2011. On the intimation given about her death, police have altered the FIR to Sections 302 and 504 of the IPC. Inquest was held over her dead body on 30.06.2011 and thereafter, autopsy was held over her dead body on 30.06.2011. The doctor, who held autopsy over her body, opined that she died on account of 80% to 85% burn injuries sustained by her due to shock. Post-mortem certificate to that effect was also issued. 2.4 After completion of investigation, eventually, charge-sheet was filed against the accused for the offence punishable under Sections 302 and 504 of the IPC. As the offence under Section 302 of the IPC was exclusively triable by the court of sessions, the learned committal court has committed the said case to the sessions division for trial. Thereafter, it was made over to learned 5 th (Ad-hoc) Additional Sessions Judge, Surat for trial. 2.5 In the Trial Court, charges under Sections 302 and 504 of the IPC were framed against the accused and the same were read over and explained to him. He denied the said charges and claimed to be tried. 2.6 During the course of trial, the prosecution got examined 19 witnesses and got marked 20 exhibits to substantiate its case against the accused. He denied the said charges and claimed to be tried. 2.6 During the course of trial, the prosecution got examined 19 witnesses and got marked 20 exhibits to substantiate its case against the accused. 2.7 At the culmination of the trial, after considering the evidence on record, the learned Additional Sessions Judge found the accused not guilty for the offences punishable under Sections 302 and 504 of the IPC and accordingly, acquitted him of the said charges. 3. Aggrieved by the impugned judgment of acquittal, the State has preferred the instant appeal assailing the legality and validity of the said judgment of acquittal. 4. When the appeal came up for hearing, we have heard learned APP Ms.Krina Calla at length. Despite service of notice of rule, the sole respondent, who is the sole accused in this case, did not turn up for hearing for the reasons best known to him. So, on 23.06.2025 as this is an old matter of the year 2013 and as it is listed for final hearing under the caption “critically old matter”, we have posted the matter to this day for hearing giving one more fair opportunity to the accused as he did not turn up for hearing in spite of receipt of notice. Today also, he did not turn up for hearing and there is no representation on his behalf also. Therefore, we have perused the record and proceedings and meticulously considered the entire material on record and the evidence on record. After perusal of the record and considering the evidence, we have decided to dispose of this appeal on merits as per record. 5. Learned APP Ms.Krina Calla has strenuously argued that the Trial Court erroneously acquitted the accused on the sole ground that all the material witnesses in this case turned hostile and did not support the case of the prosecution. She contends that the Trial Court has erroneously disbelieved the dying declaration of the deceased, which is trustworthy and reliable on the sole ground that there is no corroboration to the dying declaration as all the material witnesses turned hostile to the prosecution case and did not support the prosecution version. She contends that the Trial Court has erroneously disbelieved the dying declaration of the deceased, which is trustworthy and reliable on the sole ground that there is no corroboration to the dying declaration as all the material witnesses turned hostile to the prosecution case and did not support the prosecution version. She would contend vehemently that all the witnesses are none other than the own son and daughter, who are minors, of the accused and own elder brother and sister-in-law of the accused and they all took sides with the accused during the course of trial and they deliberately did not support the case of the prosecution and turned hostile to the case of the prosecution and she contends that by itself is not sufficient to disbelieve the dying declaration and to discard the same, which is otherwise proved in this case with the acceptable legal evidence. She then contends that the dying declaration when it is proved as per law and when it is trustworthy and reliable can be the sole basis for conviction even without any corroboration to the dying declaration and the Trial Court has completely ignored the said settled legal position and thereby, did not properly appreciate the evidence on record relating to the said dying declaration and arrived at an erroneous conclusion in acquitting the accused. In support of her contention, she placed strong reliance on the judgment of the Apex Court rendered in the case of Atbir vs. Government of NCT of Delhi , reported in (2010) 9 SCC 1 . 6. She then vehemently contended that the mere absence of certification of the doctor regarding the fit state of mind of the declarant to give the statement in the dying declaration is also not by itself sufficient to disbelieve the dying declaration and to discard the same. She contends that when the Magistrate, who recorded the statement, is satisfied that the the declarant is in a fit state of mind to give the statement that by itself is sufficient to believe the dying declaration and the dying declaration cannot be eliminated from consideration on the ground of want of certification of fit state of mind of the declarant, by the doctor. 7. 7. She finally contends that in her dying declaration and in her statement given to the police, the deceased wife has given a clear and unequivocal statement that it is her husband, who is the accused herein, who poured kerosene on her suspecting her fidelity and set her ablaze and as said statement was given by her voluntarily and as the same is reliable and trustworthy and it clinchingly proves that the it is the accused and the accused alone, who is responsible for the homicidal death of the deceased and that he has committed murder of her. Therefore, she prays to set aside the impugned judgment of acquittal and to convict the accused for the offence punishable under Section 302 of the IPC and sentence him to undergo imprisonment. 8. We have given our anxious consideration to the said submissions made by the learned APP and we have carefully gone through the entire evidence on record and particularly, the evidence relating to the dying declaration and subjected the same to strict judicial scrutiny. 9. At the very outset, it is significant to note that the marital relationship between the accused and the deceased is absolutely not in dispute. Admittedly, the deceased is the wife of the accused. Both of them are living together in one house under one roof along with their minor children, who are examined as PW-8 and PW-9 aged about 12 years and 9 years, respectively. It is relevant to note here that the presence of the accused in the house at the relevant time when the deceased sustained burn injuries in the house of the accused is not specifically disputed and denied by the accused. It is nowhere stated by him that he was not in the house at the relevant time when the deceased sustained burn injuries, which ultimately resulted into her death. In fact his presence is amply established by the testimony of his minor daughter examined as PW-8. Although PW-8 did not support the case of the prosecution stating that the accused has set her mother ablaze by pouring kerosene on her, she clearly stated in her cross-examination that when she came back to her house from the temple that she has seen her mother with burn injuries and his father i.e. the accused herein is putting off the flames on her body with the blanket. This evidence of PW-8, who is the daughter of the accused himself clinchingly and clearly proves the presence of the accused in the house when the deceased sustained the said burn injuries. It is now well settled law that when the wife sustained burn injuries and succumbed to the same and thereby met with a homicidal death, it is for the husband to explain as to how his wife sustained such burn injuries of 80% to 85% burns on her body and succumbed to the same and thereby met with a homicidal death when she was in his company under one roof. The fact that the deceased sustained 80% to 85% of burn injuries and died due to shock of the said burn injuries is clearly established by medical evidence on record as can be seen from Exh.33 post-mortem report and the testimony of the doctor, who conducted autopsy, examined as PW-16. In fact the accused also did not dispute the said fact seriously that his wife sustained burn injuries and died of the said injuries. Therefore, the burden is on him to explain as to how his wife sustained the said burn injuries in his company while both of them are residing under one roof in his house, which ultimately resulted into her death leading to homicidal death. Under Section 106 of the EVIDENCE ACT , 1872, it is for the husband to explain the circumstances, which led to her death on account of the said burn injuries as the same would be within his exclusively knowledge. It is well settled law that, failure to explain the same would clearly lead to an inference, presumption, and irresistible conclusion that he is the person, who is guilty of subjecting her to homicidal death. 10. The legal position in this regard is very well settled. The Apex Court in the case of Trimukh Maroti Kirkan vs. State of Maharashtra reported in (2006) 10 SCC 681 has considered the entire law on the said proposition of law and authoritatively held at para-22 of the judgment as follows:- “22. 10. The legal position in this regard is very well settled. The Apex Court in the case of Trimukh Maroti Kirkan vs. State of Maharashtra reported in (2006) 10 SCC 681 has considered the entire law on the said proposition of law and authoritatively held at para-22 of the judgment as follows:- “22. Where an accused is alleged to have committed the murder of his wife and the prosecution succeeds in leading evidence to show that shortly before the commission of crime they were seen together or the offence took place in the dwelling home where the husband also normally resided , it has been consistently held that if the accused does not offer any explanation how the wife received injuries or offers an explanation which is found to be false, it is a strong circumstance which indicates that he is responsible for commission of the crime. In Nika Ram v. State of Himachal Pradesh (1972) 2 SSC 80, it was observed that the fact that the accused alone was with his wife in the house when she was murdered there with 'khokhri' and the fact that the relations of the accused with her were strained would, in the absence of any cogent explanation by him, point to his guilt. In Ganeshlal v. State of Maharashtra, the appellant was prosecuted for the murder of his wife which took place inside his house. It was observed that when the death had occurred in his custody, the appellant is under an obligation to give a plausible explanation for the cause of her death in his statement under Section 313 Cr.P.C. The mere denial of the prosecution case coupled with absence of any explanation were held to be inconsistent with the innocence of the accused, but consistent with the hypothesis that the appellant is the prime accused in the commission of murder of his wife.” 10.1 Further, at the end of para-23, the Apex Court held as follows:- “The appellant in his statement under Section 313 Cr.P.C. did not offer any explanation as to how she received the injuries which were found on her body.” 11. In the present case also, the appellant did not explain anything in his statement under Section 313 Cr.P.C. examination as to how his wife sustained burn injuries in his house while she was in his company which led to her death. 12. In the present case also, the appellant did not explain anything in his statement under Section 313 Cr.P.C. examination as to how his wife sustained burn injuries in his house while she was in his company which led to her death. 12. Be that as it may, apart from the above circumstance, there is a strong evidence in the form of dying declaration of the deceased available in this case. Exh.31 is the said dying declaration of the deceased recorded by the learned Executive Magistrate. The deceased clearly stated in the dying declaration, which is Exh.31 recorded by the Executive Magistrate immediately after the incident took place on 26.06.2011, at 9:44 p.m., that the accused got doubt on her and on that day, he has poured kerosene from the stove on her and lit the matchstick and set her ablaze. Thus, a clear and an unequivocal statement was given by her in her dying declaration clearly stating that it is the accused, who has poured kerosene on her and set her ablaze. On the same day, when the police also immediately recorded her statement at about 11:15 p.m. on that day, she also categorically and clearly stated before the police that the accused got suspicion on her character and suspecting her fidelity that he has poured kerosene on her from the stove and set her ablaze. 13. It is also well settled law that when the injured gave statement to the police as to how she/he sustained the injuries and if the injured subsequently succumbed to the said injuries, the said statement if registered as FIR or even if it is a statement recorded under Section 161 Cr.P.C. the said FIR, and the statement under Section 161 Cr.P.C. can be treated as his/her last statement and as a dying declaration and can be the basis for conviction. Recently, the three Judge bench of the Apex Court in the case of Harendra Rai vs. The State of Bihar & Ors. , reported in 2023 LiveLaw (SC) 664 held that the statement by an injured person, which was later converted into an FIR is admissible in evidence and is to be treated as dying declaration or as his last statement under Section 32 of the Indian EVIDENCE ACT . At para-91 and para-92 of the judgment, it is held as follows:- “91. At para-91 and para-92 of the judgment, it is held as follows:- “91. Now further issue crops up about the treatment of the FIR/Bayan Tahriri as dying declaration and in this respect various earlier pronouncements of this Court have clarified the position of law that the statement by an injured person recorded as FIR can be treated as a dying declaration and such a statement is admissible under Section 32 of the Indian EVIDENCE ACT . It was also held that the dying declaration must not cover the whole incident or narrate the case history. Corroboration is not necessary for this situation; a dying declaration can be the sole basis for conviction. 92. In the case of Munnu Raja and another v.State of M.P.15, the following observations are relevant: Para 5. In regard to these dying declarations, the judgment of the Sessions Court suffers from a patent infirmity in that it wholly overlooks the earliest of these dying declarations, which was made by the deceased soon after the incident in the house of one Barjor Singh. The second statement which has been treated by the High Court as a dying declaration is Ex. P-14, being the FIR which was lodged by the deceased at the police station. The learned Sessions Judge probably assumed that since the statement was recorded as a FIR, it could not be treated as a dying declaration. In this assumption, he was clearly in error. After making the statement before the police, Bahadur Singh succumbed to his injuries and therefore the statement can be treated as a dying declaration and is admissible under Section 32 (1) of the EVIDENCE ACT . The maker of the statement is dead and the statement relates to the cause of his death.” 14. In the case of Pradeep Bisoi Alias Ranjit Bisoi vs. State of Odisha , reported in (2019) 11 SCC 500 , also the Apex Court held that the statement of the deceased recorded under Section 161 Cr.P.C. can be considered as dying declaration after the injured succumbed to the injuries. It is held that the statement made by the deceased to Investigation Officer under Section 161 Cr.P.C. falls within Section 32 (1) of the EVIDENCE ACT as it pertains to his cause of death. 15. It is held that the statement made by the deceased to Investigation Officer under Section 161 Cr.P.C. falls within Section 32 (1) of the EVIDENCE ACT as it pertains to his cause of death. 15. Thus, two statements given by her in this case before the Magistrate in her dying declaration and before the police in her statement are consistent regarding her cause of death as she clearly stated that it is the accused, who has poured kerosene on her and set her ablaze. There is absolutely nothing on record to discredit the said statements given by her in the dying declaration and before the police. The said dying declaration of the deceased clinchingly proves that it is the accused, who poured kerosene on her and killed her. 16. No doubt there is no certification of the doctor given on the dying declaration that she was in a fit state of mind to give statement at the time of recording the same. But that by itself is not sufficient to disbelieve the dying declaration and to discard the same. It is well settled law even in the absence of the certification of the doctor, when the Magistrate, who recorded her statement is satisfied that she was in a fit state of mind to give the statement and thereby recorded her statement, it is sufficient to place reliance on the said dying declaration. The five judge constitutional bench of the Apex Court in the case of Laxman vs. State of Maharashtra , reported in (2002) 6 SCC 710 dealt with the said proposition of law authoritatively. In the said judgment, the constitutional bench clearly held that mere absence of doctor certification as to the fitness of the declarant state of mind would not ipso facto render the dying declaration unacceptable and further held that the evidentiary value of such a declaration would depend on the facts and circumstances of the particular case and when fitness of the declarant’s state of mind was proved by the testimony of the Magistrate, who recorded the dying declaration, it can be relied upon. 17. In the instant case, a careful perusal of Exh.31 dying declaration clearly proves that the declarant herself, has stated that she was able to understand the statement given by her when it was recorded and that she has voluntarily given that said statement without any pressure. 17. In the instant case, a careful perusal of Exh.31 dying declaration clearly proves that the declarant herself, has stated that she was able to understand the statement given by her when it was recorded and that she has voluntarily given that said statement without any pressure. This statement of the declarant, which is recorded by the Executive Magistrate clinchingly proves that she was conscious and in fit state of mind when it was recorded. It not only proves that she was in a fit state of mind to give the said statement, but also proves that she has given the said statement voluntarily without any duress from any quarter. So, it is evident that after satisfying about the fit state of mind of the declarant, the learned Magistrate has recorded her statement. So, when the Magistrate is of subjective satisfaction that she is in a fit state of mind to give the said statement, the mere absence of certification from the doctor to that effect is of no adverse impact on the validity of her statement. Therefore, we have absolutely no hesitation to hold after considering the said evidence on record and after subjecting the said dying declaration to strict judicial scrutiny that the declarant was in a fit state of mind to give the said statement and that she has given the said statement while she was in a fit state of mind and voluntarily. As noticed supra, she has clearly stated in her dying declaration that it is the accused, who poured kerosene on her and set her ablaze. Therefore, the said dying declaration is reliable and trustworthy and it can be the sole basis for conviction without any corroboration. 18. As can be seen from the impugned judgment, the learned Magistrate has completely disbelieved the important piece of evidence on record, which is in the form of dying declaration on the ground that all the prosecution witnesses turned hostile and did not support the case of the prosecution and particularly on the ground, that there is no corroboration to the dying declaration. The said appreciation of evidence relating to dying declaration by the Trial Court is absolutely erroneous. It is against to all cannons of law as per the settled law in this regard. The said appreciation of evidence relating to dying declaration by the Trial Court is absolutely erroneous. It is against to all cannons of law as per the settled law in this regard. All the material witnesses in this care are relatives of the accused and they are all minor son and daughter, elder brother, sister-in-law of the accused and others are the parents of the deceased. Therefore, for the reasons best known to them they took sides with the accused and did not support the prosecution case. On the ground that they turned hostile, the said vital piece of evidence of dying declaration, which is otherwise reliable and trustworthy cannot be brushed aside and excluded from consideration and discarded and disbelieved. 19. When the dying declaration is trustworthy and reliable and it was given voluntarily and the same is proved, the settled law is that, it can be the sole basis for conviction without any corroboration. In the judgment relied on by the learned APP cited above in the case of Atbir , the Apex Court held that the following principles can be culled out from the earlier decisions of the Supreme Court relating to appreciation of evidence of dying declaration: “i) Dying declaration can be the sole basis of conviction if it inspires the full confidence of the Court. (ii) The Court should be satisfied that the deceased was in a fit state of mind at the time of making the statement and that it was not the result of tutoring, prompting or imagination. (iii) Where the Court is satisfied that the declaration is true and voluntary, it can base its conviction without any further corroboration. (iv) It cannot be laid down as an absolute rule of law that the dying declaration cannot form the sole basis of conviction unless it is corroborated. The rule requiring corroboration is merely a rule of prudence. (v) Where dying declaration is suspicious, it should not be acted upon without corroborative evidence. (vi) A dying declaration which suffers from infirmity such as the deceased was unconscious and could never make any statement cannot form the basis of conviction. (vii) Merely because a dying declaration does not contain all the details as to the occurrence, it is not to be rejected. (viii) Even if it is a brief statement, it is not to be discarded. (vii) Merely because a dying declaration does not contain all the details as to the occurrence, it is not to be rejected. (viii) Even if it is a brief statement, it is not to be discarded. (ix) When the eye-witness affirms that the deceased was not in a fit and conscious state to make the dying declaration, medical opinion cannot prevail. (x) If after careful scrutiny, the Court is satisfied that it is true and free from any effort to induce the deceased to make a false statement and if it is coherent and consistent, there shall be no legal impediment to make it basis of conviction, even if there is no corroboration.” 20. When the dying declaration on hand in this case is considered in the light of the aforesaid principles laid down by the Apex Court, as discussed as supra, there is nothing to doubt the credibility of the said evidence of the dying declaration given by the deceased. It is trustworthy and reliable and it was given voluntarily. Therefore, it can be the sole basis for conviction without any corroboration as it inspires full confidence in the mind of the Court regarding the veracity of the statement given by the deceased both in her dying declaration and in her statement before the police, which can also be treated as a dying declaration. If the said dying declaration is discarded without any valid reason, it would certainly result into miscarriage of justice and grave injustice would be caused to the victim. 21. The deceased being the wife and the accused being her own husband, she has absolutely no reason to falsely implicate him in a false case stating that he has poured kerosene on her and set her ablaze while suspecting her fidelity. Therefore, we have absolutely no hesitation to hold that the deceased has given a true statement voluntarily and has explained as to what has actually transpired at the time of offence in their house when both of them are living together in the said house under one roof. As already observed supra, the accused did not explain as to how his wife met with homicidal death in his company while they are living under one roof. As already observed supra, the accused did not explain as to how his wife met with homicidal death in his company while they are living under one roof. All the circumstances emanating from the record unerringly point towards the accused that he is the culprit and none else, who is responsible for the homicidal death of the deceased. 22. As the Trial Court did not properly appreciate the evidence of dying declaration on record and discarded the said vital piece of evidence on an erroneous reasoning, which is perverse in the nature of it and legally unsustainable and as the Trial Court completely ignored the settled law in this regard relating to death of a wife while she was in the company of the husband under one roof meeting with the homicidal death, we are of the considered view that the impugned judgment of acquittal of the Trial Court is not sustainable under law and it warrants interference in this appeal and the same is liable to be set aside. 23. Therefore, the accused is found guilty for the offence punishable under Section 302 of the IPC. He is liable for conviction and to be adequately sentenced to undergo imprisonment for doing away with the life of his wife. 24. Resultantly, the appeal is allowed setting aside the impugned judgment of acquittal. As the accused is found guilty for the offence punishable under Section 302 of the IPC, he is convicted for the said offence punishable under Section 302 of the IPC. 25. However, there is no evidence on record to prove his guilt under Section 504 of the IPC. Therefore, he is not found guilty of offence under Section 504 of the IPC. 26. As is his presence is required for the purpose of questioning him on the quantum of sentence, issue Non-bailable warrant against the respondent to secure his presence for the purpose of questioning him on the quantum of sentence and to pass appropriate sentence against him, making it returnable on 15.07.2025.