Geetaben Laxu vs State of Gujarat

J.C. Upadhyaya, J.—The challenge in this appeal is to the judgment and order rendered by learned Addl. Sessions Judge, Valsad at Navsari on 10.4.2002 in Sessions Case No. 92 of 1985, whereby the learned Judge recorded conviction of the appellant, who was original - accused in aforesaid Sessions Case for the offence of murder of Geetaben Shaileshbhai punishable u/s 302 of the Indian Penal Code (''IPC'', for short) and was sentenced to undergo imprisonment for life and fine of Rs. 1000/-, and in default, S.I for one month.

The prosecution case is that deceased Geetaben happened to be younger brother''s wife of her husband of appellant - accused Geetaben Shaileshbhai. In other words the appellant - accused happens to be elder brother''s wife of the husband of the deceased. On 14.3.1995, at about 20.30 hours, there was some altercation between the two, regarding trifling issue like throwing dirty water in the compound of the house. The appellant - accused got excited and poured kerosene on deceased Geetaben and set her to fire by matchstick. Deceased was immediately removed to Civil Hospital, Valsad and she was admitted to the hospital. Medical Officer, incharge, informed the police, and head-constable Parshuram Sonu immediately reached the hospital and recorded the FIR of Geetaben, who subsequently succumbed to the burn injuries. While deceased Geetaben was alive and under treatment, Executive Magistrate recorded her dying-declaration. Investigating Police Officer recorded the statements of material witnesses. After collecting the required material for the purpose of lodgment of chargesheet, chargesheet came to be filed in the Court of learned JMFC, Valsad. As the offence was exclusively triable by the Court of Sessions, the learned JMFC committed the case to the Court of Sessions, Valsad at Navsari, which came to be registered as Sessions Case No. 92 of 1985.

The Ld. trial Judge framed charge at Exh.1 against the appellant for the offence punishable u/s 302 of the IPC, to which she did not plead guilty and claimed to be tried. Thereupon, the prosecution adduced its oral and documentary evidence. After the completion of the evidence adduced by the prosecution, the Ld. trial Judge recorded the further statement of the appellant u/s 313 of the Cr.P.C. and the appellant denied generally all the allegations levelled against her by the prosecution and stated that she was falsely implicated in this case.

Ld. advocate Mr. Sunil Patel for the appellant submitted that there is no eye-witness to the alleged incident. The prosecution case is based upon so-called dying-declaration made by the deceased, while she was under treatment. That considering the medical evidence and even the evidence of mother of the deceased, PW-1 Manjuben Chotubhai, it clearly transpires that when the deceased was brought to Civil Hospital, Valsad, she was unconscious. Under such circumstances, the dying-declaration has become very doubtful and it is not safe to base conviction upon such dying-declaration.

Ld.advocate Mr. Patel for the appellant further submitted that even there is no consistency between the two dying-declarations, one allegedly recorded by Executive Magistrate and another before a Police Officer in form of FIR. It is submitted that in the dying-declaration, Exh.12, allegedly recorded by Executive Magistrate, the time of the incident is stated to be 10.45 p.m., whereas in the FIR, Exh.22, the time of the incident is stated to be 8 p.m. It is further submitted that neither the Executive Magistrate nor the Police officer, who recorded the dying declaration and the FIR of the deceased, has obtained any written opinion of Doctor, who was treating the deceased respectively, regarding her physical and mental state. Even the mother of the deceased in her evidence turned hostile. Ultimately it is submitted that the appeal may be allowed and the conviction recorded by the trial Court be set-aside.

Per contra, learned APP Mr. Shah for the State submitted that there is no reason to discard the dying-declaration of the deceased. There is ample medical evidence on record to suggest that at the time when the deceased in injured condition came to be admitted in Civil Hospital, Valsad, she was conscious. She herself gave history of her burn injuries before the Doctor, implicating the appellant in the incident. Deceased herself gave the FIR, which is her dying-declaration before the police. Regular dying-declaration came to be recorded by Executive Magistrate. Even considering the evidence of PW-1 Manjuben Chotubhai, the mother of the deceased, it is true that she turned hostile, but, in her evidence, she supported the case of the prosecution regarding the oral dying-declaration made by the deceased before her mother, implicating the appellant in the incident. That the medical evidence adduced by the prosecution clearly suggests that the deceased was conscious till her death during her treatment. Therefore, it is submitted that the appeal may be dismissed.

We have examined record and proceedings in context with the submissions made by the rival sides.

Considering the oral and documentary evidence adduced by the prosecution in this case and the submissions made on behalf of both the sides, it clearly transpires that the prosecution case rests solely upon the evidence in form of dying-declaration of the deceased. There is no eye-witness to the incident. It further transpires that the prosecution case is based upon multiple dying-declarations, namely, oral dying-declaration before mother of the deceased, dying-declaration in form of history of injury stated by the deceased to the Medical Officer on duty, recording of her FIR by police, which is her dying-declaration before police and the dying-declaration recorded by Executive Magistrate.

Considering the evidence of PW-1 Manjuben Chotubhai, Exh.6, who is mother of the deceased, though she was declared hostile witness by the prosecution, in her evidence, she categorically states that when she inquired to her daughter as to what has happened, she told her that the appellant poured kerosene on her and she was set to fire by the appellant. In her cross-examination, it is true that she deposed that while they reached to the hospital, Geetaben, her daughter appeared to be semi-conscious, but, considering the medical evidence on record and especially the evidence of Dr. Vibhuti Patel, PW-9, Exh.36, she deposed in her testimony that at about 10.30 p.m., on 14.3.1995, she was on-duty Medical Officer in Civil Hospital, Valsad, when deceased was brought to the hospital in burnt condition. She categorically stated that the deceased was conscious and she inquired to the deceased about her injury, to which the deceased stated that, at about 8.30 p.m. to 9 p.m., appellant poured kerosone on her body and set her to fire. Under such circumstances, the medical evidence clearly suggests that the deceased was conscious. The deceased not only gave her oral dying-declaration to her mother Manjuben, but the history of injury recorded by Dr. Patel can be treated as oral dying-declaration before the Medical Officer.

Considering the evidence of Dr. Patel PW-9, Exh.36, it further transpires that she informed concerned police station about the incident and head-constable Parshuram Sonu PW-5, Exh.21 immediately came to the hospital and met the deceased while she was under treatment and recorded her FIR, which is at Exh.22. According to his evidence, deceased was conscious when he recorded the FIR and denied the suggestion that she was not able to speak and was not able to give statement. Considering the FIR, Exh.22, in it the deceased clearly stated that it was the appellant, who poured kerosene on her and set her to fire. It is further pertinent to note that in the FIR, it is further stated that while she was escorted to hospital by her mother PW-1, Manjuben Chotubhai, her mother asked her as to what had happened and she told her mother that the appellant has ablazed her. This fact is corroborated by the evidence of PW-1 Manjuben Chotubhai. Thus, the FIR, Exh.22 is her dying-declaration before the police.

Considering the evidence of Executive Magistrate Shri Patel PW-2, Exh.10, upon receipt of police yadi, he went to the hospital and according to his evidence, he recorded the dying-declaration of the deceased, which is produced at Exh.12. Considering the dying-declaration, Exh.12, recorded by the Executive Magistrate, it is stated that the appellant poured kerosene on her body and she was ablazed.

It is true that in the dying-declaration, Exh.12, the time of the incident is stated to be 10.45 p.m., whereas in the FIR, Exh.22, the deceased stated the time of the incident to be 8 p.m. We are of the considered opinion that the minor inconsistency about the time of the incident shall pale into insignificance, once the genuineness of the dying-declaration is established by the prosecution. Considering the overall evidence on record, supported by the medical evidence, it clearly transpires that the prosecution successfully proved its case regarding the genuineness of different dying-declarations made by the deceased before her mother, Medical Officer, police and the Executive Magistrate. About the incident and the role played by the appellant in the incident, there is no inconsistency or any discrepancy in the dying-declarations.

Considering the evidence of Dr. Zaveri PW-3, Exh.14 and the P.M. report, Exh.16, it clearly transpires that due to severe burn injuries sustained by the deceased, she succumbed to the injuries on 18.3.1995 and her death is opined to be cardio-respiratory failure due to septicemia following burn injuries. The above discussed dying-declarations are of dated 14.3.1995 i.e. day of the incident and, thereafter, during the course of treatment, the deceased succumbed to the burn injuries on 18.3.1995. Thus, even after the dying-declarations made by the deceased, she survived for four days, and the medical evidence reveals that throughout her treatment, she was conscious.

In the impugned judgment the learned trial Judge, at length, discussed the above aspect of the matter and we do not find any illegality or any error having been committed by the trial Court, while recording the conviction of the appellant for the offence of murder, punishable u/s 302 of the IPC. The appeal, therefore, is devoid of any merits and deserves dismissal.

For the foregoing reasons, the appeal stands dismissed. The conviction and sentence recorded by the trial Court are confirmed.