Dhulaji Bhikhaji Khant vs State of Gujarat

J.R. Vora, J.—This Appeal is preferred by the accused ofSessions Case No.67/1994 of the Court of Sessions,Sabarkantha at Himmatnagar against the judgment dated21st December, 1994 of the learned Additional SessionsJudge, convicting the present appellant for the offenceunder Section 302 of the Penal Code and sentencing him toimprisonment of life and for fine of Rs.500=00 and indefault to undergo Rigorous Imprisonment of six months.

The facts reveal that the complainant of thiscase Babuji Manaji Parmar is a resident of VillageKatwad. His sister Tejalben was married to the presentappellant 10 years prior to the date of the incident.Out of this marriage Tejalben had two children - a boynamed Jasuji and a girl named Jashoda aged 10 years and 7years respectively. The married life of Tejalben and thepresent appellant was not going well and wheneverTejalben used to visit her parental house, she wascomplaining that her husband, the present appellant wassuspicious about her character and was beating her.However, in the interest of married life of Tejalben herrelatives persuaded her to stay at her in-laws. In themonth of January previous to the incident Tejalbenvisited her parents and again complained that she hadbeen beaten and tortured by the appellant. On 14thFebruary, 1994 at about 10:00 p.m. the complainant wasinformed that Tejalben was burnt and was kept at VillageKadoli. After obtaining an Ambulance Van fromHimmatnagar Town Babuji went to Village Kadoli andnoticed that Tejalben was burnt all over her body and wasfully conscious. She conveyed to Babuji that theappellant had beaten her and thereafter pouring keroseneupon her and lighting fire he closed the door and ranaway. Thereafter Babuji shifted Tejalben at HimmatnagarCivil Hospital and also lodged complaint at HimmatnagarTown Police Station. Tejalben, before Dr.Bhupendra whotreated her, at the first instance made a statement inthe form of case history that she was burnt by herhusband following a physical assault. Dying Declarationof the deceased was also recorded by the ExecutiveMagistrate PW 6 Pravinkumar Hirabhai. During thetreatment Tejalben died on that night at 22:30 hours.The complaint was registered at Himmatnagar Town PoliceStation. As per the information given by Dr.BhupendraShah an entry regarding the incident was made in theregister at 13:10 hours by PSO Balwantsinh vide EntryNo.27/1994. For inquiry of this entry Police ConstableJagdevsinh Vakhatsinh PW 8 also recorded the statement ofthe deceased at the Civil Hospital. The statement is atEx.24. Initially, the offence against the accused wasregistered under Sections 307 and 498A of the Penal Codebut, on the death of Tejalben, the same was converted inSection 302 and 498A of the Penal Code. Theinvestigation was handed over thereafter to PratapsinhUdesinh, the then Police Inspector, Himmatnagar TownPolice Station. He arrested the accused on 19thFebruary, 1994. After investigation the charge-sheet wasfiled in the Court of Chief Judicial Magistrate, FirstClass at Himmatnagar for the offence under Sections 302 and 498A of the Penal Code against the accused and the case was committed to the Court of Sessions. Vide Ex.3,the learned Additional Sessions Judge, Himmatnagar framedcharge against the accused but he pleaded not guilty tothe charge.

After trial and hearing both the parties andrecording the statement of the appellant u/s 313 of the Code of Criminal Procedure, vide judgment and order dated 21st December, 1994 the learned AdditionalSessions Judge came to the conclusion that charge againstthe accused u/s 498A was not proved by theprosecution while prosecution established the chargeunder Section 302 of the Penal Code against the accused.After hearing the accused on the quantum of thepunishment, the learned Additional Sessions Judge, asabove said, awarded life imprisonment to the accused for the offence proved u/s 302 alongwith the fineof Rs.500=00. Being aggrieved and dissatisfied thisAppeal is preferred by the appellant.

Learned advocate Mr.JV Japee on behalf of theappellant and the learned APP Mr.KT Dave for the Statewere heard at length.

Before we deal with the contentions raised by thelearned counsel, being the first Appellate Court, itwould be the prime duty of the Court to appreciate theevidence.

To prove the charge against the accused, PW 1Babuji Manaji, complainant, has been examined vide Ex.6.In the complaint though he had narrated that on coming toknow about the burning of his sister Tejalben heimmediately visited Village Kadol and from there heshifted Tejalben to Himmatnagar Civil Hospital. He alsonarrated in the complaint that Tejalben had complaintsagainst the appellant about the torture which wascommitted by the appellant physically as well asmentally. However, this witness though being brother ofthe deceased did not support the prosecution. Thecomplaint which he filed is on record at Ex.7. PW 2Manaji Kanaji, father of the deceased Ex.8, PW 3Pravinbhai Manaji, brother of the deceased Ex.9 areexamined but they have not supported the prosecutioncase. All the above witnesses, relatives of the deceasedwere examined to prove charges u/s 498A of thePenal Code against the appellant. So, this evidencerequires to be discarded. It appears that the learnedAdditional Sessions Judge acquitted the appellant for thecharge u/s 498A of the Penal Code, for want ofclinching evidence, and in our opinion, rightly so.

Panchnama of the scene of offence is placed atEx.10. Inquest Panchnama is also on record at Ex.11.

Relative of the deceased PW 4 Mangaji Kacharajiis examined at Ex.12 but he has also not supported theprosecution case. PW 5 Dr.Manishbhai Amraji Suvera isexamined at Ex.14 for the limited purpose that heinformed Himmatnagar Town Police Station that thedeceased died at 10:25 p.m. on 14th February, 1994because at that time he was incharge as Medical Officerat Civil Hospital, Himmatnagar.

Ex.16, Map of the scene of offence is placed onrecord.

Important witness PW 6 Pravinkumar Hirabhai isexamined at Ex.17. He deposed that right from 24thNovember, 1983 he was serving as Deputy Mamlatdar in theoffice of the Himmatnagar Mamlatdar. He was alsoExecuting Magistrate empowered to record dyingdeclaration. On 14th February, 1994 at 13:55 hours hereceived a yadi, which is on record at Ex.19 that he wasrequired to record the dying declaration of the deceasedTejalben at Civil Hospital.Yadi contained anendorsement of a doctor of Civil Hospital that thepatient was conscious. He has further deposed that hereached at the Civil Hospital for recording of dyingdeclaration at 14:10 hours. He enquired from the doctorwhether the patient was conscious. The doctor affirmedthat the patient was conscious, located Tejalben fromGeneral Ward of Females. Some relatives were present whowere requested to go out. Thereafter, he started makingqueries to the deceased Tejalben. Tejalben was capableof understanding what he was asking. She offered hername as Tejalben Dhulaji Khant. After preliminaryconversation she also replied that at that time she wasin the Civil Hospital at Room No.2/13. Thereafter, aboutthe incident she narrated before this witness that thepresent appellant on 13th February, 1994 at about 10:00hours came to the house in drunken condition. Theappellant demanded meal for eating. The appellant also,according to her, emphasized that meal was to be servedto him irrespective of whether the same was prepared ornot. She further narrated that she had only prepared''rottlas'' (loafs) and not vegetables. The appellant hadtherefore eaten only ''rottlas''. After eating the meal,since no vegetables were prepared he picked a quarrelwith her, poured kerosene on the body of Tejalben, andset her ablaze and ran away. The witness PravinkumarHirabhai deposed that he enquired from Tejalben that whatwas the cause of the incident. To which Tejalben repliedthat she had never quarreled with her husband butwhenever her husband (present appellant) came home indrunken condition he was in the habit of finding excusesfor the quarrel and so on the excuse of not preparingvegetables the appellant set her ablaze. The witnessPravinkumar Hirabhai further deposed that her declarationwas read over to Tejalben and her thumb impression wasobtained on the said statement, which was completed on14:45 hours. The witness produced the original dyingdeclaration on record at Ex.20.

PW 7 Balvantsinh Ranjitsinh Jetavat examined atEx.21 is a formal witness who stated that at 13:10 hourson 14th February, 1994 Dr.Bhupendra Shah informed thePolice Station that one Tejalben with burn injuries wasadmitted in the Civil Hospital. This witness was, at therelevant time, P.S.O. of the concerned Police Station.He made entry in the register vide Entry No.27/94.Immediately he wrote and sent a yadi to the ExecutiveMagistrate, which is placed on record at Ex.19, forrecording of dying declaration. Inquiry of this entry,at the first instance, entrusted to one Head ConstableVirjibhai. But, since he was not present, the same washanded over to Head Constable Jagdevsinh Dabhi.

PW 8 Jagdevsinh Vakhatsinh, who recorded thestatement of the deceased is examined at Ex.23. Hedeposed that he was entrusted with the inquiry of EntryNo.27/94, which is on record at Ex.22. Accordingly, hevisited the Civil Hospital, Himmatnagar for recording thestatement of the deceased. When he reached at the CivilHospital, the Executive Magistrate was recording thestatement of Tejalben, so he waited outside andthereafter he went to Tejalben. Tejalben offeredstatement to Jagdevsinh and said that the appellant cameto the house in drunken condition and when he was scoldedby her, he poured kerosene from a tin upon her body andset her ablaze. She further stated in her statement thatthereafter immediately the accused absconded from thehouse and her mother-in-law came to the house and afterwrapping quilts, etc. an attempt was made to extinguishthe fire. Thereafter, she was shifted to Civil Hospitalby her parents and brothers. This witness Jagdevsinh,according to his statement, obtained thumb impression ofTejalben on the statement. This witness has produced thestatement of Tejalben at Ex.24.

PW 9 Dr.Bhupendra Manilal Shah is examined by theprosecution at Ex.25. He is the doctor who initiallytreated Tejalben and thereafter on her death conductedpost-mortem. He stated in his deposition that on 14thFebruary, 1995 he was on duty in Emergency Treatment Wardof Civil Hospital, Himmatnagar. At about 13:00 hoursTejalben was brought for immediate treatment. She wasextensively burnt. He gave her primary treatment andasked the case-history. Tejalben stated before thiswitness in case-history that in a quarrel between herhusband she was assaulted by her husband and thereaftershe was put to fire after pouring kerosene upon her body.Dr.Bhupendra further stated that he recorded thiscase-history in treatment papers as given by patientTejalben. Witness Dr.Bhupendra Shah further stated thatthereafter he called mother-in-law of Tejalben and onasking separately and independently she offeredcase-history that while preparing fire for cookingTejalben was burnt. He confirmed that he made anendorsement below Ex.19 yadi to the Executive Magistratethat the patient was conscious. He further states thathe found 98 per cent burnt on the body of the deceasedwhich was from first to third degree. The case wasreferred to the Civil Surgeon and at about 10:25 hours onthat night she was declared dead by Dr.Suvera who wasthere on duty. The witness further stated that he was onduty until 8 O''clock at night on that day and upto thatperiod i.e. upto 8 O''clock at night the patient wasfully conscious and he was constantly in touch with thepatient and was constantly treating her. The patient wasproperly talking till he left the hospital at 8 O''clockon that night on completion of his duty hours. Thiswitness produced case-papers at Ex.26 which contains thehistory given by Tejalben and her mother-in-law asaforesaid. The doctor has further stated that during histreatment he did not administer any drug to the patientby which she would get slightest sedation or sleep. On15th February, 1994, in pursuance of yadi of HimmatnagarTown Police Station, he conducted post-mortem report at12:00 hours alongwith Dr.Rakesh Bansal. Post-mortem noteis placed at Ex.27. From the defence side no effectivecross-examination has been conducted of this witness.But, on a suggestion from the defence side, hecategorically denied that a person with 98 per cent burninjury can not remain conscious.

PW 10 Jashodaben, daughter of the deceased isexamined at Ex.29. It appears that she would be about7-8 years while she was deposing at the relevant time.The trial Court tried to ascertain whether this childwitness was capable of understanding and deposing beforethe Court. Some of the questions asked by the Court werereplied by her. In a question from the Court that whereshe was while deposing, she replied that she was in thepolice station and she was in the police station becauseshe wanted to rescue her father. She stated that hermother was preparing ''rottlas'' and was pouring keroseneand burnt.

PW 11 Manuji Jawanji Khant has been examined atEx.30. He is cousin brother of the deceased. Mostly heis examined to prove the cruelty committed by theappellant on the deceased, but the witness has notsupported the prosecution case. PW 12 Manubhai Mohanlalexamined at Ex.31 is a formal police witness, while PW 13Pratapsinh Udesinh, Investigating Officer has beenexamined at Ex.35. He has narrated how he conducted theinvestigation. What is found important from hisdeposition is that he deposed that the appellant wasabsconding after the incident, which occurred on 13thFebruary, 1994 at night. This witness Pratapsinh Udesinhfurther deposed that the accused was apprehended on 19thFebruary, 1994 at 9:30 hours. On this aspect there is nocross-examination from the defence side except denial.Even in his statement u/s 313, the accused hasnot attempted to explain why he was absconding.

Learned trial Judge acquitted the appellant inrespect of an offence u/s 498A of the PenalCode because the relatives of the deceased did notsupport the prosecution case of cruelty inflicted on thedeceased before the incident. But, the trial Judgeheavily relied upon the dying declaration Ex.20 andEx.24. The trial Judge also relied upon the depositionof PW 6 Pravinkumar, PW 8 Jagdevsinh and PW 9Dr.Bhupendra Manilal Shah and the case-papers produced byhim at Ex.26. The trial Court came to the conclusionthat there was no single reason to doubt the evidence ofEx.22 and Ex.24 and the above three witnesses. Hence,the trial Judge convicted the appellant u/s 302 of the Penal Code.

After reappreciating the evidence of PW 8Jagdevsinh Vakhatsinh, PW9 Dr.Bhupendra Shah and PW 6Pravinkumar Hirabhai and after taking into considerationthe statements recorded by witness Pravinkumar, ExecutiveMagistrate and Jagdevsinh, Police Constable and alsotaking into consideration the case-history recorded bythe doctor PW 9 at Ex.26, we are convinced that theconclusion arrived at by the trial Judge requires nointerference, though we shall deal with the contentionsraised on behalf of the appellant one-by-one.

Learned advocate Mr.Japee on behalf of theappellant vehemently, assailing dying declarations Ex.20and Ex.24, argued that the version narrated in both thedying declarations are inconsistent and in contradictionto the material particulars leading to the alleged crime.To appreciate this contention of the learned advocate wewill have to look to the documents at Ex.20, Ex.24 andEx.26. In Ex.20 the deceased stated that on 13thFebruary, 1994 appellant came to the house at 10 O''clockat night in drunken condition and asked for the mealirrespective of whether the same was prepared or not.The deceased had prepared only ''rottlas'' and notvegetables. The appellant ate ''rottlas'', and thereaftertook up a quarrel with Tejalben for not preparingvegetables and poured kerosene on her body and set her onfire. While, in Ex.24 before Jagdevsinh the deceasedstated that the accused appellant was in habit of comingto the house in drunken condition and was not doing anywork. On the day of the incident he came to the house indrunken condition. She scolded the appellant for hisdrunken condition and so the accused picked up quarrel,poured kerosene on her body and set her ablaze. Incase-history which is the first version given by thedeceased to the doctor, which is recorded in the casepaper Ex.26, the deceased has categorically stated thatthere was quarrel between the husband and the wife. Thedeceased was assaulted and thereafter the accused pouredkerosene from the tin on the body of the deceased and sether ablaze. We do not see any contradiction in the circumstances leading to the alleged crime as narrated inabove statements of the deceased. There is noinconsistency also as has been attempted to be magnifiedby the learned advocate for the appellant. So far as theincident which is the basis of the prosecution case isconcerned, there is no contradiction. The basis of theprosecution case is that the accused picked up quarrelwith the deceased, poured kerosene on her body and puther to fire. However, this version is consistentlycoming out from Ex.20, Ex.24 and Ex.26, which are thestatements of the deceased. The shortest form ofnarration by the deceased is Ex.26, which is given beforethe doctor and is first in point of time. There also shehas categorically stated that she was assaulted by herhusband and put her to fire by her husband.Unmistakably, the same version is stated by the deceasedto the Executive Magistrate vide Statement Ex.20. Thesame version is confirmed by her in a statement given toHead Constable Jagdevsinh, which is at Ex.24. When weappreciate all these three statements in its totality, wefind that the accused picked up quarrel with the deceasedand put her to fire after pouring kerosene on her body.Whether the incident had occurred because the deceasedfailed to prepare vegetables or not, is not a materialfact, but the material fact is as above said. Somehow,there was a quarrel and the accused poured kerosene onthe body of the deceased and set her ablaze. Thelanguage of the quarrel is not important. This wholeprosecution case is consistent in all the three dyingdeclarations. On the contrary, the dying declarationi.e. Ex.20, which is taken later on after Ex.26 (medicalhistory) contains more details as to the manner of theghastly occurrence. By no stretch of reasoning it couldbe said that the deceased improved her version in boththe statements at Ex.20 and Ex.24, because in one of thestatements she did not say that because vegetables werenot prepared the accused picked up the quarrel. In allthe three dying declarations the material base of theprosecution case is that, after picking up the quarrelthe accused poured kerosene and set the deceased ablaze,remains the same. So, we can not accept the contentionthat the dying declarations at Ex.20 and Ex.24 areinconsistent having contradiction in material particularsnamely the circumstances leading to the alleged crime.

The later contention which the learned advocatefor the appellant vehemently advanced was regarding themental capacity of the deceased to offer dyingdeclaration. It was argued that the deceased suffered 98per cent burn injury. The deceased could not be in aphysical state to give proper declaration. It was alsostated that while Ex.20 was being recorded by theExecutive Magistrate there were some relatives presentand so tutoring to the deceased, can not be ruled out.No endorsement of any doctor on any of the dyingdeclarations is obtained that the deceased was consciousas well as in a fit state of mind and physique to offerstatement.

While we reappreciate the evidence of PW 6,Executive Magistrate Ex.17, PW 8 Jagdevsinh and PW 9Dr.Bhupendra Manilal Shah, we find that the deceased wasin fit mental as well as physical condition to give thestatement. It is neither a rule of law nor of prudencethat each dying declaration should contain an endorsementand a certificate of a doctor that deceased was in fitmental condition to offer dying declaration. But, it isa matter for the courts to determine, while judging theveracity of the dying declaration, whether deceased wascapable of offering any statement as to the cause of hisor her death. The important witness PW 9 Dr.BhupendraShah has stated that he was on duty on that day upto 8O''clock at night. He also deposed that upto 8 O''clock atnight on that day the patient was constantly consciousand he was in constant consultation with the deceased.The doctor further deposed that till he left the hospitalafter completion of duty hours at 8 O''clock at night thepatient was properly talking. He further deposed that hedid not administer any drug which may give sedation tothe deceased. Now, on this aspect there is no effectivecross-examination on behalf of the defence. When weappreciate this evidence of PW 9 Dr.Bhupendra, we areconvinced that the deceased was in fit mental conditionto offer dying declaration. This evidence could not beassailed by the defence either during trial or by thelearned advocate for the appellant in this Appeal. Onthe contrary, the doctor emphathetically denied thesuggestion that a person with 98 per cent burn injury cannot remain conscious. This is the direct evidence tocome to the conclusion that the deceased was in fit stateof mind. This is not enough. When PW 6 PravinkumarHirabhai approached the deceased at about 14:10 hours, herequested all the relatives to go out of the room of thepatient. He ascertained that the deceased Tejalben wasin proper condition to talk and to give reply. Thiswitness further ascertained that the deceased was capableto understand and grasp and to give reply to the queries.The witness PW 6 Pravinkumar further deposed that thedeceased was properly replying to his questions. Againthis evidence leads to the finding that the deceased wasin fit state of mind to answer the question. Moreover,we could not find any effective cross-examination onbehalf of the defence side except denials. We could notfind anything which could dislodge or discard the say ofwitness Dr.Bhupendra or this witness PW 6 Pravinkumar.The same is the deposition of Head Constable JagdevsinhPW 8, who also deposed that he enquired from the deceasedand deceased offered the statement. Nothing could beestablished by the defence in his cross-examination alsoto disbelieve the say of the witness PW 8 Jagdevsinh.The learned advocate for the appellant, however, couldnot assail the prosecution case to the extent that thedying declarations recorded by PW 6 Pravinkumar, PW 8Jagdevsinh and PW 9 Dr.Bhupendra are concocted and notworthy of credit. It appears that the main thrust of thedefence side was that the deceased was tutored by herrelatives. When we scrutinize the evidence of threewitnesses carefully and when we scrutinize and scan thedying declarations at Ex.20, Ex.24 and the case-historyat Ex.26, we find that there is no reason for these threeindependent witnesses to individually or collectivelyconspire against the accused and concoct tutored versionof the deceased in the shape of dying declarations topush the appellant to conviction. On the contrary, wefind that all these three witnesses are extremelytruthful and reliable. We also find that the dyingdeclarations recorded at Ex.20 and Ex.24 alongwithcase-papers at Ex.26, wherein, case-history is recordedare reliable evidence to act upon. It also can not besaid that statements Ex.24 and Ex.26 are uncorroborated.Though learned advocate for the appellant is in agreementwith us to the extent that a conviction can certainly bebased upon sole evidence of dying declaration if the sameis reliable. Ex.20 statement gets corroboration fromwitness Pravinkumar PW 6. Again Ex.20 further getscorroboration from Ex.24 and witness PW 9 Dr.BhupendraShah. Ex.26 also gets corroboration from Ex.20 andEx.24. Each of the three witnesses corroborate eachother, because no contradiction destroying theprosecution case in the evidence could be noted. Hencein our view dying declarations Ex.20 and Ex.24 arereliable pieces of evidence, and sufficient to convictthe accused for the offence charged against him underSection 302 of the Penal Code.

Learned advocate for the appellant cited adecision of the Apex Court in the matter of Smt. Laxmi Vs. Om Prakash and Others, andargued that the Apex Court did not believe five dyingdeclarations and acquitted the accused. When we read thewhole decision of the Apex Court we found that the ApexCourt, after appreciating five dying declarations, foundthat each dying declaration was suffering frominfirmities, which is evident from Paragraphs-9, 11, 17and 27. The ASI who recorded the first dying declarationcould not make entries in the register in this respect.The doctor stated that the victim was administeredsedative drug and she was not able to speak. Theevidence of the Executive Magistrate, who recorded thedying declaration, found unreliable for the reasonsrecorded by the Apex Court and in these circumstances allthe dying declarations were disbelieved by the ApexCourt. While the facts of this case, as narrated above,go to establish that the dying declarations are amplyproved by unimpeachable, reliable and credit worthyevidence by the witnesses, and hence the decision citedby the learned advocate is not useful to the appellant.

Learned advocate for the appellant placedreliance on the testimony of minor child Jashoda andcontended that she is the daughter of the deceased andnot supporting the prosecution case. But, however, onbare reading of this testimony of daughter Jashoda, it isclear that she never understood the sanctity of thedeposition. The trial Court rightly did not administeroath to her. She was under an impression that she was inpolice station to rescue her father. It is neitherhelpful to the prosecution nor the defence, and in fact,is not necessary for the prosecution to rely on her atall. Though the fact remains that in her natural mannershe deposed that she called her grand mother Sakuba afterthe incident. This fact leads to the conclusion thatSakuba, mother-in-law of the deceased was not a materialwitness, having no personal knowledge in respect ofincident.

Learned advocate for the appellant then arguedthat in Ex.26 case-papers, the doctor also recorded theversion of the mother-in-law of the deceased, who saidthat the deceased was burnt while preparing fire forcooking. Learned advocate contended that mother-in-lawof the deceased was a material witness who could havethrown light on the incident, and by not examining her,an adverse inference is required to be drawn against theprosecution case. For this, learned advocate relies upona decision of the Apex Court in the matter of Narain and Others Vs. The State of Punjab, . Paragraphs12 and 13 of the judgment were cited by the learnedadvocate. In the above said decision, the Apex Court hasindicated the test as to who can be material witness.The Supreme Court has observed that the test is whether aparticular witness is essential to the unfolding of thenarrative upon which the prosecution is based. The testis not whether he would have given evidence in support ofthe defence. Now, reverting back to the facts of the case it is clear from statement Ex.24, the deceasedstated that her mother-in-law came after the incident andattempted, after wrapping quilts, to extinguish fire onher body. As said above, we are inclined to accept theevidence of Ex.24, the statement of the deceased. Thisstate of evidence clearly denotes that the mother-in-lawwas never a material witness because she reached to theplace of incident after the incident took place. Whilethe prosecution case was based on a story that thehusband poured kerosene on his wife and set her ablaze.Mother-in-law was not the witness to this fact. In thefirst place, mother-in-law is not a material witness, sodrawing of adverse inference is out of place and secondlywe can not shut our eyes to the hard reality that themother would naturally shelter her son and would not sayto the doctor that the wife was burnt by her son.Moreover, when the statements of the deceased in the formof dying declarations at Ex.20 and Ex.24, on scrutiny,are found reliable and acceptable, the case-history givenby the mother-in-law to the doctor can safely bediscarded. Further witness Jashodaben has aforesaid madeclear that mother-in-law came to the place of incidentafter Jashodaben called her. The panchnama of scene ofoffence Ex.10 makes it clear that the incident occurredin the middle of the room where fire place for cookingwas in southern corner. Reading the panchnama Ex.10, itbecomes clear that fire place for cooking was not nearthe exact place of incident. Panchnama Ex.10 makes itclear that kerosene was on the floor in the circumferenceof two feet. These two important facts rule out theprobability that deceased died while preparing cookingfire, as indicated by the defence. It is the duty of theCourt to find out the truth from the evidence. There maybe embellishment in the evidence. There may beinterwoven falsity in the truth enshrined in theevidence. This must be tested by the Court through theexercise of segregating truth from falsehood. Afterundertaking this exercise on appreciation of evidence,the Court must discard the falsity and truth must becarved out. Appreciating the evidence of the Doctor,Executive Magistrate and Jagdevsinh PW 8, we find theextreme truth in the statement of the deceased andtherefore when there is weighty evidence in the shape ofdying declarations as to the cause of death, the otherpetty mingled falsity like the statement of themother-in-law before the doctor recorded in the case-history must be discarded. We do not find any merittherefore in this contention that since the mother-in-lawof the deceased is not examined an adverse inference canbe drawn against the prosecution case. Therefore, wealso refuse to accept the contention on behalf of thelearned advocate for the appellant that there are twoversions in the prosecution case - one is given by thedeceased and another given by the mother-in-law of theaccused. On scrutinizing the facts, it clearly appearsthat there are no two versions in the prosecution case.The prosecution case contains only one version and thatis, the husband burnt the wife. The version of themother-in-law is a falsity and requires to be discarded.The question of accepting the version benefitting theaccused would not arise at all. The prosecution was ableto establish the case containing one version only.

Lastly, it was vehemently urged on behalf of thelearned advocate for the appellant that it is a casefalling u/s 304 Part I or Part II and not underSection 302 of the Penal Code. It was further urged thatthe accused appellant was in a drunken condition and on aspur of moment of provocation, it appears that he pouredkerosene and set ablaze the victim. In support, learnedadvocate for the appellant cited the following cases ofthe Apex Court:-

(1) Kalu Ram Vs. State of Rajasthan,

(2) Hari Shankar Vs. State of Rajasthan,

(3) Mavila Thamban Nambiar Vs. State of Kerala,

(4) SUDHIR SAMANTA v/s. STATE OF WEST BENGAL(reported in AIR 1998 S.C. 289)

(5) Baldev Singh and another Vs. State of Punjab,

We are unable to accept the contention of the learnedadvocate for the appellant on this score also. The abovecases of the Apex Court are on the facts of those cases,wherein, in each of the above case, on fact, the ApexCourt found that there was no intention to kill on thepart of the accused or premeditation in committing thecrime. But, in this case when we scanned through thestatement of the deceased, it is clear that the appellantcame in drunken condition, asked for the meal to theextent that he demanded the meal whether it was preparedor not. The victim had only prepared ''rottlas'' and notvegetables. After taking the meal of ''rottlas'' withoutvegetables the accused appellant picked up quarrel withthe deceased, poured kerosene on her body and set herablaze. Not only that, thereafter the accused run awayand could be apprehended only on 19th February, 1994(i.e. after five days of the incident). This series ofincidents, which is proved beyond doubt by theprosecution clearly denotes that the act of the appellantwas premeditated and with an intention to kill. It ispertinent to note here that the Investigating OfficerPratapsinh PW 13 deposed that the accused was apprehendedon 19th February, 1994 because he was absconding. We donot find any cross-examination on this point exceptsuggestions and denials. Even, the accused has notoffered any explanation in his further statement underSection 313. Having regard to this fact and havingregard to the manner in which the incident has occurred,one can not accept for a moment that the incident hadoccurred without any intention on the part of theappellant or on a spur of a moment, or the incidentoccurred on sudden quarrel. It is amply proved by theprosecution beyond doubt that when the appellant reachedat the home he was in a furious mood to ask his wife toserve meal for him whether it was prepared or not.Moreover, after taking the meal he committed this crime,which clearly attributes necessary intention of theaccused. The trial Court rightly convict the accusedunder Section 302 of the Penal Code.

For the foregoing reasons, we do not find anyreason to interfere with the judgment of the trial Court,which is impugned in this Appeal. In the result, thisAppeal stands dismissed.