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Judgment
Bankim N. Mehta, J.—The Appellants accused have preferred this appeal u/s 374 of the Code of Criminal Procedure, 1973 and challenged the judgment and order of conviction and sentence passed by the learned Additional Sessions Judge, Fast Track Court No. 2, Bhavnagar on 9.11.2004 in Sessions Case No. 210 of 2003 convicting them for the offence punishable u/s 302 r/w 114 of the IPC and sentencing them to undergo life imprisonment and to pay fine of Rs. 2000/-, in default, to undergo SI for two years. The Appellant Zahidaben is also convicted for the offence u/s 498A of the IPC and sentenced to undergo SI for one year and to pay fine of Rs. 500/-, in default, to undergo SI for six months. The sentences were ordered to run concurrently.
According to the prosecution case, Appellant accused Jankarali Janjirali was the father-in-law and Appellant accused Zahida was the sister-in-law of deceased Banuben and were harassing her. On 18.8.2003, deceased Banuben demanded key to change her clothes, but the accused refused and thereafter, accused Jankarali caught hold of Banuben and accused Zahida poured kerosene on Banuben and ignited match stick and thereby Banuben received burn injuries. On account of burn injuries, Banuben was taken to Mansinhji Hospital, Palitana, but as her condition was serious, she was advised to be taken to Bhavnagar. Therefore, she was being taken to Bhavnagar in a vehicle, but on the way, she died.
On the basis of first information report lodged by deceased Banuben, offence was registered and investigation was started. During the investigation, statement of witnesses were recorded, panchnama was drawn and postmortem of dead body of deceased Banuben was performed. At the end of investigation, charge sheet came to be filed against the accused for the aforesaid offence in the Court of JMFC, Palitana. As the offence was triable by Sessions Court, the case was committed to the City Sessions Court and it was registered as Sessions Case No. 210 of 2003. The learned Additional Sessions Judge framed charge Exh-6 for the aforesaid offences against the accused. The charge was read over and explained to the accused. The accused pleaded not guilty to the charge and claimed to be tried. Therefore, the prosecution adduced evidence. On completion of recording of evidence, the incriminating circumstances appearing in the evidence against the accused were explained to them. Accused Jankarali, in his further statement recorded u/s 313 of the Code of Criminal Procedure, 1973, stated that he is father-in-law of the deceased and when the deceased sustained burn injuries, he came out of the room on hearing her shouts and extinguished fire with the help of accused Zahida and the victim was taken to the Hospital with the help of the neighbours. The parents of the deceased wanted to file case against accused Zahida, but he refused to do so and therefore, there was altercation and he has been falsely implicated. Appellant accused Zahida, in her further statement recorded u/s 313 of the Code of Criminal Procedure, 1973, stated that at the time when the incident occurred, she was in the kitchen preparing chapati and on hearing shouts of the victim, she came out of the kitchen and accused Jankarali was their guest and with his help, fire was extinguished and the victim was taken to the Hospital. Thus, she is innocent. After hearing the learned Additional Public Prosecutor and learned advocate for the accused, the trial Court convicted the accused and sentenced them as mentioned herein before. Being aggrieved by the said decision, the accused have preferred this appeal.
It is reported that Appellant Jankarali has been absconding since 6.11.2007. It also appears that by order dated 9.9.2009, the appeal was ordered to be assigned to the Court and was ordered to be notified as and when absconding accused surrenders. It is reported that still the absconding accused has not surrendered.
Learned advocate Mr. Tolia appearing for the Appellants states that he is appearing on behalf of learned advocate Mr. Shaktisinh Gohil, who has filed appearance on behalf of the Appellants. He also states that in view of peculiar facts of the case that Appellant Zahidaben has been in jail since more than 8 years and as per the order of this Court, the appeal is not likely to be heard unless the absconding accused surrenders and despite best efforts, the absconding accused could not be apprehended, the appeal may be heard on merits and he has shown his willingness to address the Court on behalf of the absconding accused also.
It appears that since the accused could not be apprehended despite best efforts and Appellant accused Zahidaben has been languishing in jail since long, we thought it fit to hear the appeal on merits and therefore, the appeal is taken up for hearing today.
We have heard learned advocate Mr. SH Tolia for the Appellants and learned APP Mr. Pandya at length and in great detail. We have also perused the impugned judgment and record and proceedings of the trial Court.
Learned advocate Mr. Tolia submitted that there are numerous discrepancies in the evidence adduced in the trial Court. He submitted that there is discrepancy with regard to recording of dying declaration, as the deceased, who had 100% burn injuries, could not have given the dying declaration. He also submitted that immediately after admission at Mansinhji Hospital, Palitana, history of burn injuries given by the victim was recorded and thereafter, the victim was taken to Bhavnagar Hospital for further treatment, but on her way to Bhavngar, she died and her dead body was brought back to Palitana and postmortem was performed. The doctor, who performed postmortem, has also opined that he cannot definitely say that the injuries were homicidal in nature. Therefore, in absence of definite opinion with regard to death and discrepancies in dying declarations, benefit of doubt is required to be given to the accused and the appeal is required to be allowed.
Learned APP Mr. Pandya submitted that prima facie, the evidence indicates that the victim was conscious and oriented and was in a position to give account of her burn injuries and pursuant thereto, first information and thereafter dying declarations were recorded. Therefore, there is no discrepancy in the prosecution evidence and trial Court was justified in convicting the Appellants. He also submitted that clothes of accused Zahidaben were having smell of kerosene and therefore, her involvement is clearly established and therefore, no error is committed by the trial Court in convicting the accused and no interference is warranted in the impugned judgment. Therefore, the appeal is required to be dismissed.
PW 11 Dr. Harshadbhai Padmakant Exh-31 has performed the postmortem of dead body of deceased Banuben. According to the witness, he prepared postmortem note Exh-32 and he cannot say as to whether the death was accidental or homicidal. In the cross-examination, the witness has admitted that there were third degree burns on the entire dead body. He has also deposed that in the case of suicide also, one would notice burns on entire body, which were found in the present case also. In view of above evidence, it appears that the medical evidence also do not conclusively indicate that the burns sustained by the victim were homicidal.
It appears from the evidence that immediately after the incident, the victim was taken to Mansinhji Hospital at Palitana for treatment and PW 14 Dr. Kalpanaben Exh-45 started the treatment. The witness in his deposition has stated that deceased Banuben was brought to Hospital for treatment at 1:00 p.m. by Habibshah. She has also deposed that the victim gave history that she is burnt after sprinkling of kerosene before about half an hour. The witness has also deposed that condition of the victim was serious, but she was conscious and oriented. The witness has further deposed that as she had burns on entire body, she was referred to Sir T. Hospital, Bhavnagar for further treatment and she has issued certificate Exh-46. In the cross-examination, she has deposed that the victim was referred to Bhavnagar within half an hour of her admission in the Hospital. She has admitted that the victim was brought to the Hospital at 1 o''clock and was sent for Bhavnagar at 1:30 p.m.
The prosecution has produced treatment certificate at Exh-46. It appears that the victim was brought to the Hospital for treatment at 1:00 p.m. and when she was brought for treatment, she was conscious and oriented and gave history of her burn injuries. This evidence also indicates that condition of the victim was serious and therefore, she was referred to Bhavnagar Hospital for further treatment and the victim left the Hospital at 1:30 p.m. The evidence also indicates that the victim was brought to the Hospital by Habibshah - her relative and neighbour. The medical certificate also indicates that the victim gave history of burning by someone. The victim did not name the accused in the history. In view of this evidence, it clearly emerges that when the victim was brought to the Hospital, she was in position to give history of her burn injuries and also gave history, but did not implicate the accused. It may be recorded that the person, who brought the victim to the Hospital, was her relative and therefore, had the accused been responsible for the burn injuries, the victim would have disclosed their names. Therefore, as the victim has not implicated the accused at the first instance and involved them only at a later point of time, it is difficult to believe that the accused were responsible for burn injuries to the victim.
The prosecution has produced FIR allegedly given by the Victim at Exh-41. It is alleged therein that at about 12:00 in the noon, she asked for key to change her clothes, but accused Zahida refused and at that time, accused Jankarali came their, caught hold of her and Zahida poured kerosene and ignited match stick. Thereafter, Habibshah - uncle of the victim extinguished the fire and took her to the Hospital. The prosecution case has examined PW 4 Habibshah at Exh-21, but the witness has turned hostile and not supported the prosecution case. Even in the cross examination by the learned APP, the witness has denied his police statement.
The prosecution has examined PW 8 Salimshah - father of the victim at Exh-28. It appears from his deposition that on the date of incident at about 12/12:30 in the noon, while he was taking his lunch at a Sadavrat, his wife with children came in a rickshaw and informed him that their daughter Banuben has sustained burns and is taken to the Hospital and therefore, he went to the Hospital with his wife and met his daughter and on inquiry, she informed him that accused Jankarali caught hold of her and accused Zahida sprinkled kerosene and set her to fire. The witness has also deposed that the victim was referred to Bhavnagar Hospital and died on the way to Bhavnagar. The witness has been cross examined extensively. In the cross examination, the witness has admitted that he has not filed any complaint with the community with regard to harassment to Bhanuben. It appears from the evidence of PW 8 that the deceased allegedly made oral dying declaration before him. In order to ascertain veracity, in that regard, evidence of PW 9 Kherunben - wife of PW 8 is also required to be seen, as the witness had accompanied his wife.
PW 9 Kherunben Salimshah Exh-29, in her deposition, has deposed that on hearing the news of burn to her daughter Banuben, she with her children went to the house of deceased Banuben and saw that three persons were taking her to the Hospital and hence, after taking her husband, went to the Hospital. She has also deposed that she saw the victim at the Hospital with burn injuries and she was conscious and oriented. Thereafter, at about 1:30 p.m., they left for Bhavnagar with the victim. It appears that the witness did not support the prosecution case and therefore, she was declared hostile and was cross-examined by learned APP as well as the learned advocate for the accused.
In view of above evidence, it appears that on hearing the news of burns to their daughter, both the witnesses PW 8 and 9 went to the Hospital and saw the victim. PW 8 has claimed that on inquiry with the victim, she gave history of her burn injuries and the persons responsible for such injuries, but PW 9, who was also with PW 8, does not say anything about the oral dying declaration. Therefore, in our view, it is difficult to believe that the victim made oral dying declaration implicating the accused before PW 8, as claimed by the prosecution. It also appears that there is major discrepancy with regard to timing of admission of the victim in Mansinhji Hospital, Palitana, timing of leaving Palitana Hospital and recording of FIR.
The evidence adduced by the prosecution indicates that the victim was brought to Mansinhji Hospital, Palitana with burn injuries at 1:00 p.m. and after initial treatment, with half an hour, the victim was taken to Bhavnagar for further treatment. The evidence indicates that on admission in the Mansinhji Hospital in Palitana, PW 14 Dr. Kalpanaben Exh-45 informed the police and on receiving information, Palitana Town Police Station made entry No. 112 of 2003 at Exh-68 in the station diary. It appears from the said entry that information with regard to incident was recorded by Police at 13:30 hrs. As observed earlier, the medical certificate Exh-46 indicates that the victim was brought to the Hospital at 1:00 p.m. According to PW 14 Dr. Kalpanaben, the victim left for Bhavnagar at 1:30 p.m. The evidence of PW 13 Jagdishbhai Girdharbhai Dhandhaliya Exh-40 - Investigating Officer who recorded the FIR, indicates that on receiving entry No. 112 of 2003 for investigation, he went to the Hospital and recorded FIR. In the cross - examination, the witness has deposed that he was entrusted with the investigation at 13:30 hrs and immediately, thereafter, he went to the Hospital. He has also deposed that about one and quarter hour was taken in recording the FIR Exh-41. It also appears from the record that on the basis of FIR Exh-41, offence came to be registered by Palitana Town Police Station at 15:00 hrs. The station diary entry Exh-68 indicates that the information with regard to the incident was recorded by the police station at 13:30 hrs. The Investigating Officer who recorded the FIR, indicates that it took about one and quarter hour in recording the FIR. It is not in dispute that the victim died on her way to Bhavnagar Hospital and was brought back to Palitana Hospital. The record indicates that Yadi Exh-36 was written by the PSO, Palitana Town Police Station to the Executive Magistrate to record the dying declaration of the victim. The endorsement made thereon by the Executive Magistrate appears to have been made at 10:15, which indicates that the Executive Magistrate informed the police that on making arrangement of vehicle, he would go to record the dying declaration, but no dying declaration was recorded. It is not in dispute that the incident occurred around 12:00 noon and the victim was taken to the Hospital at 1:00 p.m. and the police was informed around 1:30 p.m. The record indicates that on death of the victim, postmortem was performed. The postmortem report Exh-32 indicates that the Hospital received the dead body for postmortem at 6:45 p.m. and the postmortem was over by 9:00 p.m. In view of this evidence, when the victim had left the Hospital at 1:30 p.m. for Bhavnagar, how PW 13 could record the FIR, who took about one and quarter hour in recording the FIR.
In view of above evidence, there are glaring discrepancies with regard to timings. If the incident had occurred at 12.00 noon, how Yadi to Executive Magistrate could precede the incident. If victim had left the Hospital at 1.30 p.m., how FIR could be recorded. In view of these discrepancies in the timings, in our view, prosecution case raises doubts. Therefore, the learned trial Judge committed serious error in relying upon the FIR allegedly given by the deceased with regard to incident implicating the accused.
As observed earlier, the medical evidence with regard to burn injuries to the victim do not indicate that the burn injuries were homicidal in nature, FIR allegedly given by the victim also does not inspire confidence. Even, the alleged dying declaration also does not inspire confidence. Therefore, the learned trial Judge committed error in convicting the accused for the offence charged against them. Therefore, this appeal is required to be allowed and the Appellants are required to be acquitted for the offences charged against them giving them benefit of doubt.
As observed earlier, Appellant accused Jankarali is reported to be absconding and has not been apprehended till today. We make it clear that this order of acquittal shall not come in the way of jail authority in initiating appropriate proceedings under relevant law for abscondance of said accused Jankarali.
In the result, this appeal succeeds and is accordingly allowed. The judgment and order dated 9.11.2004 passed by the learned Addl. Sessions Judge, Fast Track Court No. 2, Bhavnagar in Sessions Case No. 210 of 2003, is hereby set aside and the Appellants are acquitted of the charges levelled against them. The Appellant accused Zahidaben W/o Mastabhai Majidsha Rafai Fakir, who is in jail, is ordered to be released forthwith, if not required in any other case. Fine, if paid by her, be refunded to her.
As regards Appellant accused Jankarali Janjirali Rafai Fakir, since he is absconding, he shall not be detained for this offence. Fine, if paid by him, shall be refunded to him.