Bhikhabhai Bhangadbhai Rathod vs State of Gujarat

Akil Kureshi, J.—This appeal is directed against the judgment of the learned Additional Sessions Judge, Surat dated 19.5.2009 rendered in Sessions Case No. 14 of 2008. Appellant was the original accused. He was charged with offences punishable u/s 498A, 504 and 302 of the Indian Penal Code. By the impugned judgment, he was convicted for such offences. For the offence u/s 302 he was sentenced to life imprisonment. For the offence u/s 498A lesser sentence was imposed. For the offence u/s 504 of the Indian Penal Code, no separate sentence was imposed. The accused has therefore challenged the said judgment by filing the present criminal appeal. Briefly stated, the prosecution case was that complainant Parvatiben Bhikhabhai lived at village Orna with her husband. Her husband used to ill-treat her and suspected her fidelity. On 9.9.07, when the husband and the wife were alone at home, accused Bhikhabhai picked up a fight with his wife and soon thereafter poured kerosene on her and then set her on fire, due to which she received serious burn injuries. Her parents were informed telephonically who came and shifted her to a hospital where on 4.10.2007, she died due to such burn injuries.

Bachhubhai Ranchhodbhai Rathod, PW-7, Ex.25, lived in the neighbourhood. He deposed that on 9.9.07, at about 8 O''clock in the evening, he was watching television at his home. When he heard shouts of Parvatiben, he and others gathered near her house. The house door was closed. They pushed opened the door and saw that Parvatiben was in flames. One Prakashbhai poured water over her. Parvatiben said that her husband had set her on fire. She said her husband suspected her and had therefore poured kerosene and set her on fire. Bhikhabhai ran away from there. Thereafter, Parvatiben''s father was informed on telephone and she was shifted to Dinbandhu Hospital. There was no serious cross-examination of this witness except suggesting that Parvatiben had become unconscious due to the injuries, to which the witness has agreed.

Somabhai Dhanjibhai Rathod, PW-8, Ex.26 was another neighbour. He also deposed that on 9.9.07, when he was at home at about 8 O'' clock, he heard shouts of Parvatiben. The neighbours, therefore, rushed to her house to find that the door of the house was closed. They pushed opened the door and saw Parvatiben in flames. One Prakashbhai poured water on her. Upon being inquired, Parvatiben said that her husband poured kerosene on her and set her on fire. When they reached at the house of Parvatiben, only two people, Parvatiben and her husband Bhikhabhai were present. Bhikhabhai thereafter ran away.

To this witness also, the only question of significance that the defence put was about Parvatiben having lost consciousness. He, however, could not say this with any certainty.

Prakashbhai Sukhabhai Rathod, PW-9, Ex.27 was also a neighbour. He deposed that on 9.9.07, in the evening he was at home and was preparing to rest after dinner. At about 8 O'' clock he heard shouts of Parvatiben. Therefore, he and other people in the neighbourhood rushed to her house. The door of the house was closed. They pushed opened the door and saw Parvatiben in flames. He poured water on her. Parvatiben informed him that she was set on fire by her husband after pouring kerosene. He also mentioned that at that time Bhikhabhai was present in the house. They tried to catch him, but he ran away.

In the cross-examination, he denied that Parvatiben was unable to speak anything. In fact, it was Parvatiben who gave the telephone number of her father to this witness.

Manjuben Sukabhai Rathod, PW-10, Ex.28 also lived in the neighbourhood. She also rushed to the spot on hearing the shouts of Parvatiben. Parvatiben was saying that she was set on fire by her husband after pouring kerosene.

Bachhubhai Haribhai, PW-11, Ex.29, father of Parvatiben deposed that on 9.9.07 when he was at home watching TV, he received a phone call from Orna village informing him that his daughter Parvatiben has been set on fire by her husband after pouring kerosene. He, his wife and other family members therefore reached Orna village in a tempo. She was unconscious. He thereafter shifted Parvatiben to Dinbandhu hospital where after treatment of two-three hours, she regained consciousness. He thereupon asked Parvatiben about the incident upon which Parvatiben told him that her husband Bhikhabhai had been suspecting her and beating her up. He had poured kerosene and set her on fire.

Babliben Bachhubhai, PW-12, Ex.30 mother of Parvatiben also gave similar account of rushing to Orna village on the night of the incident on receiving message of her daughter getting burnt.

FIR, Ex.36, was given by Parvatiben herself as pointed by the Investigating Officer, Lavganbhai Ukdiyabhai Vasava, PW-15, Ex.35. He pointed out that upon getting information that Parvatiben had regained consciousness, he reached Dinbandhu hospital on 11.9.07. He found Parvatiben fully conscious. He, therefore, recorded her complaint in detail as given by her. He thereafter made arrangements for recording dying declaration of the injured through the Executive Magistrate for which yadi was sent. In the complaint, Parvatiben had stated that she had got married to Bhikhabhai 11 years back and she had two daughters both of them lived with her parents. Her husband suspected her and quarreled with her. On 9.9.07, her husband returned home at 7 O'' clock in the evening and picked up a quarrel and started abusing her. At about 8 O'' clock, her husband closed the door of the house and poured kerosene over her from a can and set her on fire. She thereafter started screaming. Neighbours thereupon came to her house and poured water over her. Her husband ran away. Her father was informed about the incident who came and shifted her to the hospital.

Kishorbhai Pandya, PW-5, Ex.20, was the Executive Magistrate who recorded the dying declaration. He deposed that he received a yadi Ex.21, for recording dying declaration. He thereupon immediately reached to the hospital and inquired with the nurse who informed that the patient was conscious. The doctor had gone for lunch. He went to the room and asked the relatives to leave the place and thereafter proceeded to record the dying declaration, in which, Parvatiben had declared that her husband suspected her about which there was quarrel. Thereupon, her husband got excited and poured kerosene over her and thereafter set her on fire. He stated that Parvatiben was fully conscious and mentally alert and could converse normally. He had got her signature on the dying declaration which he produced at Ex.22.

In the cross-examination, he agreed that when he reached at the hospital, relatives of the patient were present, but clarified that he asked them to leave before recording dying declaration. He reiterated that patient was fully conscious and able to give her statement. He did not inquire when the doctor would be available nor did he wait for the doctor to return.

Dr. Alpna Jain, PW-4, Ex.18, had carried out the postmortem. She found that the patient had received 89 per cent burn injuries. She died due to septicemia. In the postmortem note Ex.19, she recorded the following injuries:

Dermo-epidermal and deep burn as follows.

4% burn neck.

36% burn front and back trunk.

18% burn upper limb

28% burn lower limb upto 5" below knee joint.

1% genitalia.

In her opinion, cause of death was septicemia leading to cardio-respiratory failure caused by burns. She opined that the injuries were sufficient in ordinary course of nature to cause death.

Dr. Laljibhai Jijala, PW-6, Ex.23 had treated Parvatiben at Dinbandhu hospital. He deposed that late at night on 9.9.07, he was called by the resident doctor upon which he had treated Parvatiben for burn injuries. He had recorded the history given by the relatives of the patient. He stated that the patient was conscious almost till the end when she died on 4.10.07.

In the cross-examination, he stated that at the hospital some doctor or other would be always available and, if need be, the receptionist would make immediate arrangement for presence of a doctor on intercom.

Dr. Manoj Patel, PW-17, Ex.44 was another doctor at Dinbandhu hospital who had treated Parvatiben. He produced the case papers of the treatment collectively at Ex.45.

This in nutshell is the evidence on record.

From such evidence, it clearly emerges that on the night of the incident, when the husband and the wife were alone at home, the husband picked up a quarrel with the wife suspecting her fidelity. He got angry, poured kerosene and set her on fire. The injured Parvatiben did not immediately succumb to burn injuries and survived for over three weeks. During such period, she narrated the event to several people. Immediately, she had the occasion to narrate the incident to her neighbours who rushed to help her on hearing her shouts. This included, Bachhubhai Ranchhodbhai, PW-7, Ex.25, Somabhai Dhanjibhai, PW-8, PW-26, Prakashbhai Sukhabhai, PW-9, Ex.27 and Manjuben Sukabhai, Ex.10, PW-28. All these people lived in the same locality. At about 8 O'' clock in the evening, according to them, when they heard shouts of Parvatiben, they rushed to her house to find that the door was closed. Upon pushed opened the door, they saw Parvatiben in flames. Immediately, she informed them that she was set on fire by her husband after pouring kerosene. These witnesses also pointed out that the husband and the wife were alone in their house at that time. Bhikhabhai was present but escaped later on when everybody arrived.

The parents of Parvatiben, Bachubhai Haribhai, PW-11, Ex.29 and Babliben Bachubhai, PW-12, Ex.30, were informed telephonically upon which they reached village Orna and shifted their daughter to the hospital. Even to these persons, Parvatiben gave the same version. The first dying declaration comes in the form of FIR, Ex.36, recorded by Lavganbhai Vasava, PW-15, Ex.35. Upon receiving the information that Parvatiben had regained consciousness in the hospital, he went to the hospital and found her able to give statement, upon which the FIR was recorded. In such FIR also, Parvatiben had given the same version, this time in greater detail.

The dying declaration of Parvatiben was recorded by the Executive Magistrate, Kishore Pandya, PW-5, Ex.20. In response to the police yadi, he immediately reached the hospital and found that the patient was conscious and fully alert and able to give her statement, upon which he proceeded to record the statement after evicting the relatives of the injured who was present in the room. In such dying declaration also Parvatiben gave the same version. It is true that the Executive Magistrate did not have the occasion to consult the doctor about the fitness of the patient to give dying declaration. He explained that the doctor was away for lunch. It is equally true that as per Dr. Laljibhai Jijala, PW-6, Ex.23, of Dinbandhu hospital, if sufficient effort was made, the doctor would have been summoned. However, merely on this count, we are not prepared to discard the dying declaration made to the Executive Magistrate. Firstly because, it is not always compulsory that before recording the dying declaration, certificate of the doctor about the fitness of the patient must be obtained. Secondly, the Executive Magistrate ascertained for himself first from the nurse on duty and thereafter personally that the patient was conscious. He verified that the patient was fully alert and was able to make free movements with her hands. He in fact obtained her signature on the dying declaration once it was recorded. Lastly, we have no reason to doubt or disbelieve the version of the Executive Magistrate who had no axe to grind against the accused.

Considering such overwhelming evidence on record, we have no hesitation whatsoever in believing the involvement of the accused in causing death of his wife, Parvatiben. Quite independent from the multiple dying declarations made by the deceased to different people at different points of time all giving consistent account of the husband pouring kerosene over her and setting her on fire, even the circumstances under which Parvatiben was found burning were eloquent. The neighbours reached at the spot upon hearing the shouts of Parvatiben. They found the house door closed. When they pushed opened, they found Parvatiben in flames. The husband and the wife were alone at home. The husband soon ran away. Inside the matrimonial home, when the wife is found burnt with only the husband present that by itself is a strong circumstance to point at the guilt of the accused unless, of course, he had reasonable explanation for such events. In fact, soon after the neigbhours reached, the accused ran away. His conduct also therefore would be an adverse factor against him. All these circumstances, in addition to the dying declarations leave no doubt in our minds that the accused was correctly convicted for the offence under sections 302 and 498A of the Indian Penal Code. Merely because Parvatiben survived for nearly three weeks would not reduce the gravity of the offence. The accused had poured kerosene from a can over her and set her on fire which resulted into 89 per cent burn injuries. As per the Dr. Alpna Jain this was sufficient in ordinary course of nature to cause death. In the result, the appeal is dismissed. R & P to be transmitted to the Trial Court.