Nathabhai Maganbhai Raval and Another vs State of Gujarat

C.K. Buch, J.—The appellants were tried by learned Additional Sessions Judge, Ahmedabad [Rural] at Mirzapur for the offences

punishable u/s 302, 498A, 504 read with Section 114 of IPC as accused of Sessions Case No. 137 of 1999. All the appellants were found guilty

of charge of offence punishable u/s 302 read with Section 114 of IPC and were ordered to undergo life imprisonment and to pay fine of Rs. 250/-

each. In default punishment imposed was simple imprisonment for one month. The learned trial Judge also found the appellants guilty for offence

punishable u/s 498A read with Section 114 of IPC and imposed rigorous imprisonment of 6 months with fine of Rs. 100/- each and in default

punishment of 15 days'' simple imprisonment was imposed. This order of conviction and sentence dated 11th August, 2000 is challenged by the

present appellants. This Court admitted the appeal on 6th September, 2000, but thereafter, on 29th August, 2005, the appellant No. 1 [original

accused No. 1] has expired. Death certificate issued by Vejalpur Nagarpalika is produced by the learned Counsel appearing for the appellants and

the learned APP has confirmed that appellant No. 1 has expired and therefore, the appeal of appellant No. 1 Nathabhai Maganbhai Raval,

obviously shall have to be treated as abated.

On the date of arguments, total 3 appellants were before the Court and submissions have been made on behalf of all the three appellants

[original accused Nos. 2,3 and 4]. Accused No. 2 Jasu Natha Raval is the brother-in-law of the deceased and younger brother of original accused

No. 4 Prahlad Natha. Accused Nos. 2 and 4 are at present undergoing the sentence imposed. Original accused No. 3 Kankuben has been

granted bail by this Court vide order dated 20th September, 2000 and thus, she is on bail.

We have carefully gone through the order of conviction and sentence and the Charge [Exh.4] framed by the learned trial Judge. The prosecution

case, from the papers and evidence on record reveals in nutshell as under:

The parties are referred to hereafter in their original position before the trial Court, i.e., appellants as accused and the respondent as

complainant. Deceased accused Natha Magan was father-in-law of deceased Gitaben, accused No. 2 Jasu Natha is brother-in-law of accused

No. 3. Kankuben is mother-in-law and accused No. 4 Prahlad Natha is the husband of victim Gitaben. On 8th January, 1999, in the evening at

about 6.00 p.m., victim Gita received burn injuries on her body in her matrimonial house at Vejalpur. It is alleged that the accused Nos. 1,2 and 3

caught hold of the deceased Gitaben and Prahlad Natha, accused No. 4, husband of the deceased sprinkled kerosene on her and ignited her by a

matchstick. In this fire, the deceased victim sustained burn injuries. According to the prosecution, on shouts for help, neighbour Manjula Laxman

and few others rushed to the spot and tried to save the deceased Gitaben and they ultimately extinguished the fire. This Manjula Laxman, residing

in the neighbourhood is real cousin sister of the deceased Gitaben. It was alleged that as accused No. 3 Kankuben and accused No. 4 Prahlad

Natha were active in setting ablaze the deceased, they received burn injuries. On the other hand, it has also come on record that say of the

accused Nos. 3 and 4 was consistent from the beginning that they had received burn injuries while saving the deceased Gitaben. Parents of the

deceased were informed through accused No. 2 Jasu Natha that the deceased Gitaben had sustained burns and she was being shifted to a

hospital. However, no exact information was given about the hospital. Ramesh, brother of the deceased Gita and father and mother of the

deceased, Bhikhabhai, cousin brother of the deceased and Sakriben, wife of elder brother of the father of the deceased had reached at the

matrimonial home of the deceased Gitaben at Vejalpur. According to the prosecution, after igniting fire, accused persons had left the house and

Manjula and other neighbours had extinguished the fire. It was alleged that the accused No. 4 was a drunkard and was beating the deceased.

Before about 4 days from the date of the incident, accused No. 4 had demanded Rs. 2,000/- from Gitaben and at that time, Gitaben had told her

husband to firstly stop drinking and only thereafter she would bring the amount demanded. According to the prosecution, on 8th January, 1999,

i.e. on the date of the incident at about 6.00 p.m. accused No. 4 was drunk and abused the deceased and assaulted her. At that time, all the three

accused. i.e. accused Nos. 1,2 and 3 caught hold of the deceased and accused No. 4 sprinkled kerosene and set the deceased ablaze. Injured

Gita, after the incident was taken in one ambassador car driven by driver Prahladji Jivanji and Kantiji Jivaji to village Ambapur of Taluka-

Gandhinagar for medical treatment. The deceased was treated there by one Hasmukhbhai and bandages were applied and thereafter, the

deceased was brought back to home. Prior to their arrival from Ambapur, parents of the deceased Gita had reached at Vejalpur. It was alleged

that on asking the deceased Gitaben, the deceased Gitaben had told her parents and brother P.W.1 Ramesh about the incident that she was set

ablaze by the accused persons. Thereafter, the deceased was taken to Shardaben Civil Hospital, Ahmedabad. Prior to her admission in the said

hospital, she had informed the doctor that she had sustained homicidal home burns at about 6.00 p.m. It was alleged that necessary arrangement

was made by police for recording of dying declaration of the deceased, wherein, the deceased disclosed the story that she had sustained burn

injuries as she was set ablaze by her husband by sprinkling kerosene and in that incident, accused Nos. 1,2 and 3 had caught hold of her.

According to the prosecution, the deceased was being treated by the doctors of Shardaben Civil Hospital, Ahmedabad, but ultimately, she died on

15th January, 1999 in the evening due to septicemia due to burns over the body. After the investigation, police chargesheeted all the 4 accused and

after the trial, the leaned trial Judge held that the prosecution had successfully proved its case and accused persons had committed offences

punishable under Sections 302 and 498A read with Section 114 of IPC. No formal conviction has been recorded for the offences punishable u/s

504 of IPC.

Mr. Nitin Amin, learned Counsel appearing for the appellants has taken us through the entire set of evidence available on record and has

submitted that the judgment and order of conviction is not sustainable in the eye of law. The learned trial Judge has not considered various

infirmities in the evidence and has also ignored a crucial fact that the prosecution has not examined material witnesses. It is submitted that the

learned trial Judge has also failed to hold that the prosecution has failed to examine independent witnesses though they were available. The conduct

of the accused, according to Mr. Amin, is consistent with their innocence and not with the guilt. Two of the four accused persons had sustained

injuries and these injuries were sustained by them while they were trying to extinguish fire. There is no positive evidence that the injuries were

homicidal and for this purpose, bare words of the deceased ought not to have been accepted as Gospel truth. Prosecution case is based mainly on

dying declarations and to some extent, on the conduct of the accused. That though there is no reference about the pregnancy of the deceased in

postmortem note, it has come on record that the deceased was pregnant. In this situation, no mark of violence or any physical injury was found on

the body of the deceased by the doctor, and influence of tutoring that is emerging from the evidence, takes the dying declarations under the great

shadow of doubt. The deceased had failed in making vital statement involving all the 4 accused in the crime which ought to have been made at the

earliest and on the first available opportunity. Parents of the deceased had reached from village Janu to Vejalpur after lapse of reasonable period.

The deceased had an opportunity to tell the true story as to the incident occurred to her, first to her real cousin Manjulaben and other persons

accompanying the injured/deceased in ambassador car when she was being taken to village Ambapur for treatment. Conduct of the accused taking

the deceased to village Ambapur for treatment is also indicative of the innocence of the accused. Accused No. 2, firstly, had rushed to the parental

home of the deceased so that they could be informed about the incident. Accused No. 2 may not be aware about the place where the deceased

may have been taken for treatment. There was no fault on the part of the accused No. 2 even if he was not able to inform the parents of the

deceased about the hospital or place of treatment. There is no evidence as to distance between Vejalpur and village Ambapur of District-

Gandhinagar and when there is no dispute that the deceased was taken to village expert knowing how to treat the burn injuries, conduct of the

accused ought not to have been viewed with doubt. True it is that the deceased initially ought to have been taken to a Govt. Civil Hospital, but not

shifting the deceased to Govt. hospital and taking her to another dispensary other than Govt. hospital would not make the conduct of the accused

being that of a guilty person. Manjula had accompanied the deceased to village Ambapur and therefore, it is possible to infer that she must have

helped the deceased when she was being applied ointment and bandages. She is close relative of the deceased, even then, she has not been

examined by the prosecution. The person who treated the deceased at village Ambapur has also not been examined. Neither driver of the

ambassador car nor another person who was accompanying the deceased, have been examined. These independent witnesses have been dropped

though their statements were recorded by the investigating officer. If the story was unfolded by the victim Gita to all these independent witnesses,

more particularly to Manjula, then, at least, one of such witnesses was required to be examined. Non-examination of these witnesses or at least,

one of them, has made the trial unfair. Learned trial Judge ought to have observed that prosecution had deliberately kept curtain on the initial story

that deceased might have unfolded before these witnesses or at least, before Manjulaben. Parents had enough opportunity to converse with the

deceased when they were accompanying the deceased till she was taken to Shardaben Civil Hospital and at the time of admission of the deceased

in the hospital, her parents were there including P.W.1-brother of the deceased. Role played by each of the accused is not reflected in the case

papers. Information given to the hospital duty constable is found inconsistent with certain facts reflected in the hospital case papers. So, first police

yadi by the concerned police station recorded in the register maintained in the hospital, when is not in conformity with the basic story of the

prosecution, involvement of the 4 accused persons in the crime makes the prosecution case doubtful. It is submitted by Mr. Amin that a pregnant

lady, normally would not commit suicide but this would be only an assumption. It was possible for her to explain the injuries sustained by her

husband-accused No. 4 and more particularly her mother-in-law-accused No. 3 Kankuben. For the sake of argument, even if it is accepted that a

person who has sustained severe burns may not be in a position to explain injuries or may not have even noticed the fact of injuries sustained by the

accused persons, then, it was the duty of the learned trial Judge to consider the probabilities emerging from the explanation given by the accused

persons through their statements recorded by the learned trial Judge u/s 313 of Cr.P.C. The documents relied upon by the prosecution, i.e. arrest

panchnamas clearly show that stand of the accused Nos. 3 and 4 was consistent from the beginning that they had sustained injuries while they were

trying to save the deceased. When it was the say of the deceased that Manjula was a lady who actively participated in extinguishing the fire, then,

whether this witness Manjula has sustained any injury or not would be a question. If the statement of the deceased made before the police and

before the Executive Magistrate is considered, Manjula, cousin sister of the deceased is emerging as the best witness and this very witness could

have named the persons residing in the neighbourhood who had extinguished the fire if accused persons had really escaped from the spot. On the

contrary, evidence shows that accused No. 2 had been to the parents of the deceased and accused No. 3 had accompanied the deceased in

ambassador car. It is very likely that the deceased might have been treated by the village doctor, but the prosecution has not produced any

evidence in this regard. Prosecution has also kept curtain on the nature of injuries, i.e. percentage of burns and degree of burns qua accused Nos.

3 and 4, which has made trial unfair. At least, non-examination of important witnesses and non-production of certain documents including injury

certificates of accused Nos. 3 and 4, has resulted into serious prejudice to the accused and the accused, therefore, could not have been linked with

the crime on the strength of the dying declarations only. It appears to the Court that the learned trial Judge is carried away, because, there are three

dying declarations consistent with one another, but these three dying declarations ought to have been evaluated in the background of the totality.

Merely because something has been said as to cause of death or about the injury leading to death is not required to be accepted as Gospel truth as

there was no scope for the accused to cross-examine the deceased i.e. maker of the statement having status of a statement falling in explanation

carved out u/s 32 of the Indian Evidence Act. The learned trial Judge was supposed to test the statement on the strength of other facts and other

circumstances including conduct of the accused. Socio-economic background also is an area which needs to be focused. It has come on record

that the marriage of the deceased with accused No. 4 was comparatively fresh and both of them had short span of married life of one and half

year, but after all, marriage of the deceased with accused No. 4 was her third marriage. Deceased Gita had married earlier to one Ashok and on

death of her first husband Ashok, she married with one Mangaji Gabhaji of village Tejpur. It has come on record that she was not carrying well

with her second husband and on account of disharmony, there was customary divorce between the deceased and her second husband Mangaji

after about three months of her second marriage. The deceased married with accused No. 4 after about 2 years from the termination of her second

marriage. It has come on record that third marriage of the deceased with accused No. 4 was the first marriage of the accused No. 4. So, some

bad habit of her third husband may have led her either frustration or depression. Learned trial Judge ought to have considered that the deceased

being pregnant, she might have gone under depression because of the constant misconduct of accused No. 4 being drunkard. Even then, accused

No. 4 had tried to save the deceased. Practically, there was no role of accused No. 1 if evidence led by the prosecution is closely evaluated. It

was not safe at all to link the accused No. 1 with the crime saying that the accused Nos. 1,2 and 3 had abetted the crime.

It is alternatively argued without prejudice to the arguments advanced by Mr. Amin, leaned counsel appearing for all the three accused that the

deceased had died due to septicemia and accused therefore, ought to have been held guilty of the charge of offence punishable u/s 304 Part-I and

not for the offence punishable u/s 304 and only accused No. 4 ought to have been held responsible for wrong allegedly committed which is

punishable u/s 498A of IPC. In a case based on a dying declaration, it is possible to apply theory of elimination from the group of accused persons

named in the dying declaration as culprits. The Court can say and record a finding that statement of the deceased appears to be most trustworthy

qua one or some of the accused persons named in the statement falling in the category of statement, i.e. dying declaration recorded u/s 32 of the

Indian Evidence Act. But the learned trial Judge has failed in applying mind qua probabilities placed by the accused emerging from the set of

evidence and that has resulted into erroneous finding of conviction of all the 4 accused. Because of the ill-treatment that might have been given to

the deceased by her husband-accused No. 4 and because of habit of consuming alcohol regularly by the accused No. 4, deceased may have

attempted to commit suicide or at the most, it may be the quarrel between the accused No. 4 and the deceased leading to the incident. According

to Mr. Amin, in all probabilities, it is possible that non-interference by accused Nos. 1, 2 and 3 in the quarrelsome married life of accused No. 4

and the deceased might have tempted the deceased to implicate all the family members in the crime, or some tutoring may have tempted the

deceased to implicate maximum number of persons in the crime. So, while advancing alternative argument, Mr. Amin has submitted that though

prosecution case is based on the facts unfolded by the deceased in her dying declaration, it was not impossible for the learned trial Judge to make

segregation. In short, according to Mr. Amin, finding of guilt recorded by the learned trial Judge against all the 4 accused is not sustainable.

Mr. H.L. Jani, learned APP appearing for the respondent State has placed strong resistance and submitted that the judgment under challenge is

absolutely legal; no error has been committed by the leanred trial court while appreciating the evidence, more particularly, 3 dying declarations of

the deceased; version of the deceased gets support from the medical evidence, more particularly, the police papers and there was no reason for

the learned trial Judge to discharge these 3 consistent dying declarations implicating all the 4 accused in the heinous crime committed. It is argued

that the deceased must be eager to deliver a child though there is no clear reference in the postmortem note about pregnancy that deceased was

carrying, but by way of independent and objective evidence, it has come on record that the deceased was pregnant; the doctor who had treated

the deceased in Shardaben Civil Hospital had intimated her parents about the danger to the life of the child in womb; relevant endorsements are

there in the case papers produced and proved by the prosecution; during such developed pregnancy, lady would not commit suicide; burns are

homicidal was the say of the deceased when she was being taken to Shardaben Civil Hospital. Conduct of the accused also goes against the

accused persons. If the accused were innocent and they were able to arrange for a vehicle so that the deceased could be given treatment, then,

why they had not carried the deceased to a Govt. hospital is a question and this question has not been found addressed by the defence side. True it

is that the prosecution is bound to prove its case beyond reasonable doubt, and weaknesses in defence side would not help the prosecution, but

the conduct of the accused persons of not taking the deceased directly to a Govt. Civil Hospital within the city and taking her to Village Ambapur

geographically situated in different direction in District Gandhinagar would go against them. Area known as Vejalpur, of course, is at reasonably

good distance from proper city and Govt. Civil Hospital of Ahmedabad, but ultimately, Vejalpur is considered to be part of city of Ahmedabad

and the deceased could have been taken to Shardaben Civil Hospital immediately. It appears that on insistence of the parents of the deceased, the

deceased was taken to Shardaben Civil Hospital and after arrival of her parents, she unfolded the real story as to how she had sustained the burns.

According to the prosecution, the incident had occurred at 6.00 p.m. in the evening, but there was no fault on the part of the deceased as she was

taken to some remote village of Gandhinagar district and therefore, it was not possible for the deceased to give a complaint. When, the police

approached for the first time, the deceased had given complaint narrating the details about the occurrence of the incident. Prior to the story told to

the police, she had also informed the doctor of Shardaben Civil Hospital that she has received homicidal burns. Therefore, initial version of the

deceased is about homicidal burns and dying declaration recorded by the Executive Magistrate was required to be appreciated in the background

of 2 documents, namely; history given to the doctor at the time of admission in the hospital and complaint given by the deceased. These two crucial

documents are found consistent. It is not necessary to seek for corroboration, because, it is not rule of law. It is settled that if the Court is able to

accept that the version of the deceased given during recording of dying declaration is found procedural and wholly reliable piece of evidence, then,

conviction can be based on such sole piece of dying declaration. Here, in the present case, learned trial Judge has appreciated and scanned the

evidence closely by applying rule of prudence and has ascertained that the version given by the deceased before the Executive Magistrate while

giving dying declaration gets corroboration from her two earlier versions given to the doctor and police, who recorded the complaint. This is not a

case of delayed FIR, because, deceased had no opportunity to give a complaint as she was taken to Ambapur immediately after the incident. It is

in evidence that the deceased was brought back in ambassador car in which she was taken to Ambapur. At that time, parents of the deceased

were present and thereafter, she was taken to Shardaben Civil Hospital. In Civil Hospital, she gave version that she had sustained homicidal burns.

So, this is a case of automatic explanation of alleged delay in lodging FIR. It is submitted that the prosecution has also proved motive for

commission of crime. The incident had occurred because of the bad habit of consuming liquor of accused No. 4. The deceased was taken to

Shardaben Civil Hospital at about 11.30 p.m. by one Kantibhai and police Yadi [Exh.34] recorded on the instructions of RMO at 00.05 hrs., i.e.

immediately after midnight, disclosed the story. Police Yadi was given by Police Constable Ratansinh who was present on hospital duty in

Shardaben Civil Hospital.

It is argued that it has also come on record that the deceased was residing in joint family with her father-in-law, mother-in-law and brother-in-

law [accused No. 2]. It is not a case that the deceased and accused No. 4 were residing separately. It appears that one brother of the accused

Nos. 2 and 4 and son of accused No. 1 and 3, namely Laxman Natha is residing separately. Learned APP has hammered that there is no force in

the argument advanced by Mr. Amin that non-examination of Manjula would go to the root of the case of the prosecution, because, Manjula,

though is the first cousin [uncle''s daughter] of the deceased Gita, she was wife of Laxman Natha, real brother of accused Nos. 2 and 4. While

evaluating evidence and appreciating the strength of the version of prosecution witnesses including the statement made by the deceased admissible

u/s 32 of the Indian Evidence Act, being dying declarations, FIR can be looked into. In the complaint given by the deceased, she has stated that

Manjula, her cousin sister is wife of Laxman Natha and she had come to her rescue and extinguished the fire. In such situation, Manjula being

daughter-in-law of accused Nos. 1 and 3 and sister-in-law of accused No. 2 and 4 may not have supported the case of the prosecution. So, as

such, there is no infirmity. Non-examination of Kanti, driver of the ambassador car who was present all throughout from the beginning, and the

person who treated the deceased initially at Ambapur, can be said to be an infirmity in the case of the prosecution. But this lacuna does not go to

the root of the story told by the deceased nor does it affect the strength of the evidence led. During earlier hours after the incident till the time

deceased was taken to Shardaben Civil Hospital with her parents, the deceased may be under pressure of her in laws and more particularly,

Manjula. So, the time taken by the deceased in telling the story should not be viewed with suspicion. This is a case where all the 4 accused could

have been convicted on the strength of three consistent dying declarations and the learned trial Judge has rightly concluded so.

The burn injuries found on the body of the accused Nos. 3 and 4, i.e. mother-in-law and husband of the deceased respectively, get

corroboration to the version of the deceased and the explanation given by the accused at the time of their arrest and thereafter during their

examination in the court u/s 313 of Cr.P.C. has been rightly discarded by the learned trial Judge. If the accused persons were really innocent and

they themselves had sustained injuries, they also ought to have rushed to the hospital with the injured Gita so that all of three could be immediately

given proper treatment and the lady [deceased] who had sustained second and third degree burns on major part of her body ought not to have

been taken to a person who had some skill to treat the burns. It is submitted that this is a case where police ought to have prosecuted person who

gave initial treatment to the deceased and failed in informing the police about the visit of the injured pregnant lady. But inaction on the part of the

police in this regard does not disturb the substratum of the story of the prosecution. The victim herself and Manjula, her close relative may not be

aware about the gravity of the injuries and therefore, they may have convinced the deceased to get treatment from such village expert. But the

person who treated the deceased was under obligation to inform the police. It would not be either legal or proper to jump to any conclusion that

the deceased may not have told to that person who treated the deceased, anything against the accused persons.

Learned APP has drawn the attention of the Court to a decision in the case of Patel Hiralal Joitaram Vs. State of Gujarat, and has submitted

that merely because victim died after some days and the cause of death is found to be septicemia, would not take the act of the accused out of the

contours of the 2ndly cause of Section 300. Crucial question which requires to be examined is whether the accused did act with intention of

causing such bodily injury as he knew, ""to be likely to cause death of the deceased"". On facts, the Supreme Court observed that it is inconceivable

that the appellant would not have known that setting a human being ablaze after soaking her clothes with inflammable liquid would cause her death

as the type of burn resulting therefrom would at least be likely to cause death [if not, they are sufficient in ordinary course of nature to cause death].

In this cited decision, the deceased had succumbed to the burns after a fortnight. In the present case, the deceased Gita died due to septicemia on

7th day of the incident. The deceased sustained burns at about 18.00 hrs on 8th January, and she succumbed to injures in the evening of 15th

January, almost on completion of 7th day. The case papers [Exh.40] show that the deceased had sustained 68% burns, so there was some scope

of survival of such a patient. It is in the evidence that condition of the hospital ward was unhygienic and it is very likely that the deceased may have

developed septicemia because of unhygienic condition of the hospital ward. Some negligence or error committed by the persons attending patient

or para-medical personnel applying dressings etc. But this would not help the accused. Learned trial Judge as supposed to look to the intention or

knowledge of the wrong doer and keeping all the criterias in ming, the learned trial Judge has held the accused guilty of the charge of offence

punishable u/s 302 of IPC.

It is further submitted that the accused, of course, had tried to shift the deceased to village Ambapur so that she can be treated and two of the

accused persons had sustained injuries, but the presence of burns on the body of the accused Nos. 3 and 4 are not sufficient to creat shadow of

doubt. Clothes of accused No. 4 were found stained with kerosene. FSL report [Exh.48] clearly indicates presence of kerosene on the clothes of

the accused No. 4, though no such evidence in the nature of scientific report is found qua accused No. 2. Accused No. 3, mother-in-law is found

to have sustained burn injuries on her chest and fingers etc [arrest panchnama Exh.28. Investigation officer ought to have collected injury

certificates of injured accused Nos. 3 and 4, because, part of the body having burns may have strengthened the case of the prosecution. In the

hospital case papers, there is general allegation and the deceased Gita has not named any of the accused or the role played. The police yadi is late

by about 00.30 minutes, but this time gap is not that big. So, the learned trial Judge was supposed to evaluate the medical evidence, arrest

panchnamas and other documents, i.e. hospital case papers, police yadi recorded in Vardhi Book [Exh.34] and FIR [Exh.43] given by the

deceased and the dying declaration [Exh.19]. Opinion expressed by the FSL also materially supports the case, at least, against the accused No. 4.

In this factual scenario, the accused persons have been held guilty. There are no material contradictions or improvement in the version of the

deceased. The learned trial Judge was right in ignoring minor infirmities left by the investigating officer and by prosecuting agency. Failure on the

part of the Public Prosecutor by not examining some important witnesses has not the accused persons in any way and therefore, the appeal

deserves to be dismissed.

While responding to the submissions of the learned APP, Mr. Amin has submitted that as such, there is no evidence as to motive. Prosecution

has simply complained about one bad habit developed by the accused No. 4. There was no motive for accused Nos. 1 to 3 for committing such

serious crime and in this background, facts proved may be evaluated. According to Mr. Amin, in case of State of Gujarat Vs. Mohan Bhai

Raghbhai Patel and another, , the Apex Court has confirmed the acquittal recorded by this Court. In the cited decision, a circumstance has been

considered by the Apes Court that accused No. 1 had thrown mattress on the deceased and was pressing the same so that the fire can be

extinguished and in the process of doing so, the accused No. 1 had sustained injuries. If accused were really interested in killing the deceased, they

would not have tried to extinguish fire throwing mattress on her. Second decision relied on by Mr. Amin is in case of State of Rajasthan v. Prithvi

Raj reported in 1995 SCC [Cri] 934. In the said case, accused were impeached for bride burning by pouring kerosene and setting her on fire. The

Apex Court found that immediate conduct of the accused and his parents in rushing the deceased to the hospital immediately by arranging a jeep

can be said to be consistent with their being innocent. In the present case also, the accused persons had arranged for a vehicle and the deceased

along with her cousin sister was taken in the very vehicle to village Ambapur and bandages were applied. Merely because the accused persons had

decided in not taking the deceased to a Govt. hospital would not go against them. Ultimately, conduct of the accused persons is required to be

seen and it shows that the accused No. 2 was sent to call the parents of the deceased and the accused No. 3 had accompanied the deceased in

the ambassador car along with other family members and persons to village Ambapur so that the injured can be treated immediately. Therefore,

this conduct of the accused persons is consistent with their innocence. Drawing attention to one attempt made by P.W. 1-brother of the deceased

in para-10 of his deposition, it is argued that this witness was asked a pointed question by the police when they reached Shardaben Civil Hospital

how this had happened?"" and the answer to that question given by this witness was that he did not know. They had brought the injured looking to

her condition. Similar reply was also given by her father and mother. Father and mother have not been examined and the dying declarations or

police yadi were required to be evaluated in this background. Conduct of the accused of attempting to extinguish the fire would positively help

them at least to accused Nos. 2 and 3. One of them has sustained injuries.

We have considered the rival contentions and have been taken through the entire set of oral as well as documentary evidence led during the

course of the trial. Relevant parts of the judgment assigning the reasons for recording a finding as to estoppel of guilt beyond reasonable doubt are

also read over to us.

Case of the prosecution when is based on the dying declarations and the prosecution claims that all the 3 dying declarations are consistent,

there are no material improvements and the same have been given at the earliest, this Court will have to give a fresh look, because, it is an

obligation on the part of this Court while dealing with the appeal preferred u/s 374 read with Section 386 of Code of Criminal Procedure to

evaluate the findings recorded by the learned trial Judge, keeping in mind all probabilities placed before the Court.

To appreciate the rival contentions, it is necessary to look at the evidence led by the prosecution over and above the dying declaration,

because, strength as piece of evidence in the dying declaration relied upon by the prosecution can be decided on other set of evidence if led by the

prosecution. No corroboration is required, but reliability of entire or part of the dying declaration depends on various aspects. Same, therefore,

shall have to be tested on the touchstone of other material and emerging relevant facts.

P.W.1 Rameshbhai Raval, brother of the deceased Gita has been examined at Exh. 13. He has deposed that the marriage of the deceased

Gita with accused was her third marriage and on 8th January, 1999, at about 8.00 p.m., brother-in-law [accused No. 2] of deceased Gita had

been to his residence and had informed them that Gita had sustained injuries on her leg. When he was asked that at which hospital she has been

taken, accused No. 2 had replied that he does not know. Thereafter, this witness, with his parents and one cousin brother Bhikhabhai and

aunt[wife of elder brother of his father] reached Vejalpur at the residence of the accused No. 4. Nobody else was there except accused No. 2. He

has stated that when they were inquiring about the injured Gita that where she has been taken for treatment, one ambassador car had arrived there

wherein, there were Manjula [first cousin of the deceased Gita], one Laxmanbhai, Nathabhai [accused No. 1], accused No. 3 Kankuben and

Gita. He has deposed that Gita had sustained burns on her face, chest, stomach and legs. His father then inquired from Gita that how she sustained

these burns and at that time, Gita told that her husband was drinking everyday and that she was being beaten; that before four days to the incident,

accused No. 4 had demanded Rs. 2000/- and she [Gita], in turn had asked him [accused No. 4 Prahlad] to leave habit of drinking liquor and only

thereafter, she will bring the amount; on the date of the incident, at about 6.00, accused No. 4 Prahlad came in drunk condition, he assaulted and

abused her[Gita]. It is further stated by this witness that Gita had also told that her father-in-law, mother-in-law and brother-in-law, i.e. accused

Nos. 1,2, and 3 caught hold of her and her husband Prahlad sprinkled kerosene and ignited the fire and on listening her shouts, Manjula, cousin

sister of the deceased had rushed to her and with the help of the quilt and she [Manjula] extinguished the fire. Thereafter, Gita was taken to

Shardaben Hospital, where she succumbed to the injuries on 15th January. It is in the evidence that deceased Gita had about 10 years of married

life with her first husband Ashok. Thereafter, she married to one Mangaji Raval and that marriage subsisted only for three months. This witness has

denied the suggestion that Gita was ailing since long and because of frequent miscarriages, she had gone mentally sick. It is in evidence that

deceased Gita married with accused No. 4 after about two to two and half years of her second marriage. This witness has denied suggestion that

deceased Gita was not inclined to marry third time. He has admitted that during this period they had seen two to three boys who were literate and

they were hailing from good families. But he was not in a position to give names of those proposed bridegrooms. He has denied the suggestion that

marriage of deceased Gita with accused No. 4 was against her will and this witness was not recollecting that on how many occasions, deceased

Gita had been to her parental home during her [last] marriage life. However, he has admitted that during her visit to her parental home, she had

never complained about the misconduct of accused No. 4. This witness has admitted that in Vejalpur, he has number of relatives and Manjula is his

first cousin and in laws of his real brother are also residing at Vejalpur. This witness was not aware whether his close relatives were visiting Gita or

Gita was visiting any of these relatives. Manjula is the next-door neighbour of Gita and accused No. 4 and their house is located in a thickly

populated area. This witness has admitted that prior to arrival of ambassador car, they inquired about the incident from persons residing in the

neighbouring area, but they had not asked anything to husband of Gita about the incident. He has admitted that they had not asked or inquired

anything from anybody except accused No. 2 Jasu. One answer given to a straight question asked to this witness is to the effect that there was

nobody except accused No. 2 Jasu and therefore, Jasu was asked and by that time, ambassador car had reached there.

Jasu-accused No. 2 had gone to the village Janu at the residence of this witness and on his call only, P.W.1 Ramesh and his parents had

reached Vejalpur. So, there was no need to ask again and again to the same person[Jasu], but this witness has not stated that what were the

answers given by the persons residing in the neighbourhood when they were asked about the incident. He has stated that Gita was sitting in the rear

seat of the ambassador car and Kankuben as well as Manjula were also in the rear seat. Thereafter, Gita was shifted from the ambassador car;

bandages were applied. She was neither crying nor screaming, she had not even asked for water. She was, thereafter, taken to Shardaben

Hospital in an auto rickshaw and he was there with Gita. This witness has admitted that he has studied up to 1st standard. He knows only to sign

and he is able to read the newspaper slowly. He has stated that he is not aware whether police personnel had asked anything to Gita when she

entered Shardaben Hospital. This witness has admitted that when they had taken Gita to Shardaben Hospital, the police personnel who was

present there had asked him that how all this [burn injuries] happened and at that time, he had replied that he does not know, but they have

brought Gita looking to her condition. He has further admitted that his parents [father and mother] of the deceased were also asked by the police

and they had also replied accordingly. This witness has admitted that after admission of Gita in Shardaben Hospital, he had met police thrice and

on all these occasions, the police was recording his statement and he was also signing each such statement. His father and mother were also asked

by the police personnel in Shardaben Hospital; other relatives had also reached there. He has denied the suggestion that the case has been made

out after making some deliberations and they have created a story about the incident.

It is relevant to note that Manjula, first cousin of deceased Gita has not been examined, who was first person to reach at the spot and as per

the case of the prosecution, she extinguished the fire. There is nothing on record to show that this Manjula had sustained any burn injuries. Mother

of the deceased also has not been examined who had conversation with the deceased initially after arrival of the ambassador car. Nothing has

come on the record about the version of this witness before the police personnel who was on duty at Shardaben Hospital, because, no such

statement is forming part of the papers of charge sheet. Statements of this witness recorded by two different Investigating Officers are part of the

charge sheet. This witness has been cross-examined on the strength of those statements. Admission made by this witness that when this witness

and his parents were asked by hospital duty head constable about the incident and the response given by them that they are not aware actually

about the incident that how this incident had occurred, is very relevant. This answer given in para-10 of the cross-examination affects adversely to

the facts stated by this witness in his examination-in-chief about the alleged conversation that had taken place between his parents and injured Gita

at Vejalpur when she was being taken out of the ambassador car or immediately threafater. If Manjula is wife of real brother of accused No. 4 and

son of accused Nos. 1 and 3, then, at the most, she would have turned hostile. It is an obligation on the part of the investigating officers and

prosecution to bring all facts on record about the initial version of Gita through Manjula about the incident and the say of Manjula. Non-

examination of Manjula by prosecution would seriously affect the fairness of conducting the trial when case is based on dying declaration. It is

possible for the accused to argue that prosecution has remained interested in keeping curtain on the facts initially told by Gita to Manjula and the

say of Manjula to investigating agency.

It is possible to infer reasonably that some conversation may have taken place between Gita, Manjula and also with the person who treated

Gita at village Ambapur. This witness from Ambapur has not been examined. He may not be a qualified doctor. In our country people are still

having habit to visit such unqualified persons either for delivery of a child or to get treatment of burn injuries or fracture injuries. Manjula as well as

Gita and the family members, being poor and illiterate may not be aware about the gravity of the burns sustained by the deceased; degree wise and

percentage wise. The person who treated Gita has not been joined as accused, so it is possible to infer that Investigating Officer must have felt

satisfied by the explanation given by him. There is nothing on record to show that what was the version of the person who treated Gita. In the same

way, one Laxman who accompanied the injured Gita and Kanku, and driver in the ambassador car along with Manjula so that Gita can get

treatment at the earliest, are also not examined. There is nothing on record to show that these persons Laxman or Kanu are relatives of the

accused family or they are independent persons. It is the experience of the society that in such situation, victims are sometimes misled by the advice

given by the persons in surroundings. It is possible that to avoid police, all of them including Gita may have decided to follow such ill advice to go

to a private unqualified doctor for treatment. But the fact remains that Gita was taken to a person who had applied bandages to her. She was not

screaming nor crying when she was taken out of the ambassador car and was taken to Shardaben Hospital which indirectly suggests that injured

must have developed power to resist the pain with help of treatment given. Whatever it may, but the fact remains that the deceased Gita was able

to sit in rear seat of ambassador car along with other two passengers and she was taken in an auto rickshaw to Shardaben Hospital. Ambassador

car also could have been taken directly to Shardaben Hospital. Taking a car to a private person and that too, unqualified person for treatment at

village Ambapur is a strange conduct other than normal conduct. But it would not be proper for the Court to jump to a conclusion that this conduct

is abnormal or same is inconsistent to the innocence of each of the accused persons. It emerges from the evidence of P.W.1 Ramesh that accused

No. 4 was, perhaps, not there otherwise, he would have accompanied Gita to Shardaben Hospital or had accompanied accused No. 3 Kanku so

that he himself can get treatment. It is in the evidence that accused No. 4 had sustained injury and the injury sustained by this accused was graver

or more than the injury sustained by accused No. 3 Kanku. So, the conduct of the accused Nos. 1,2 and 3 appears to be different than the

conduct of accused No. 4 who escaped from the spot of the incident and not did not accompany injured wife when she was being taken to

Shardaben Hospital despite the injury sustained by himself. As an innocent person, he would have rushed to hospital with his wife so that he can

also be treated simultaneously. Conduct of Kanku is significantly different than the conduct of accused No. 4. Gesture of visiting the family of the

deceased by accused No. 2 is also significant and he may not be genuinely aware about the place where his brother''s wife Gitaben has been taken

for treatment. He may have left Vejalpur for village Janu before the car could be arranged and injured Gita could be taken for treatment, but this

would not go against the accused. True it is that total 5 persons had reached at Vejalpur from village Janu and 2 of them i.e. P.W.1 and P.W.3

have been examined. But Manjula, first cousin who was accompanying the injured Gita has not been examined and the facts stated by Manjula to

P.W.1 and P.W.3 have not come on record, because, these 2 crucial witnesses have kept silence in this regard and in this background, evidence

given by the Executive Magistrate to police witnesses and opinion evidence of doctor as well as FSL experts need to be analyzed.

P.W.2 Savdhanji Vajaji Darbar [Exh.17] has been examined being Executive Magistrate who recorded dying declaration. On 9th January, he

had been to Shardaben Hospital for recording dying declaration in one another case and at that time, he had received Yadi from the police at 0.55

a.m. and had recorded dying declaration of injured Gita. He has proved Yadi Exh. 18 and dying declaration Exh.19.Exh. Yadi-Exh.18 bears

endorsement showing time of 0.55 A.M. and this endorsement shows that; ""patient is fully conscious at present"". The said Yadi is signed by Dr.

Jayesh P. Sachda. It appears that this endorsement was made at the time when Yadi was sent to the Executive Magistrate. Again, the very same

doctor has made endorsement in the dying declaration at 1.35 a.m. It says that; ""patient is fully conscious at present"". It is not the evidence that the

doctor was present at the time when the dying declaration was being recorded but this would not go against prosecution.

After the incident at 6.00 p.m. statement has been recorded by the Executive after lapse of about 7 hours. Deceased has shown her age to be

22 years in her statement. It is also stated that she is illiterate. In answer to question No. 11, which is suggestive in nature, whereby the Executive

Magistrate has asked Gita that whether she had any mental or physical torture from anybody in particular. Though question was framed from

particular angle, she has given answer only in affirmative. There was scope for the deceased to name the persons torturing her. Some details were

given by Gita to Executive Magistrate earlier, even then, a pointed question [Q.12] was asked to Gita by the Executive Magistrate that whether

anybody had blazed her and the answer given by Gita was only in the affirmative. But while answering this question No. 12, she has not all of the 4

accused. She has stated in her statement before the Executive Magistrate that her husband Prahlad was beating her after drinking liquor; she has

stated that her father-in-law Natha Magan had caught hold of her, her brother-in-law Jasu had caught hold of her and her mother-in-law Kanku

had also caught hold of her. Thus, total three out of four accused caught hold of her and her husband Prahlad-accused No. 4 sprinkled kerosene

and ignited fire with match stick and she has sustained burns on her body, i.e., hands, legs and waste. As per the depositions of P.W.1 Ramesh

and P.W.4-father Kantibhai and dying declaration [Exh.19] recorded by the Executive Magistrate, she has not alleged anything against the

accused Nos. 1,2 and 3 so far as physical and mental torture are concerned. Even as per the P.W.1, her husband [accused No. 4] had demanded

Rs. 2000/- and had beaten her up before about four days from the date of the incident and on the date of the incident, he had again assaulted the

deceased while he was in drunken condition. If father-in-law, mother-in-law and brother-in-law were also inimical to the deceased, she would

have unfolded the entire story of physical or mental torture meted out to her by any of these three accused persons, during her visit at her parental

home or at least, after their arrival at Vejalpur from village Janu. The version of the deceased Gita implicating all the 4 accused in the offence

whether is trustworthy in toto is a question before the court.

P.W.4 Kantibhai Atmaram Raval who is father of the deceased Gita is examined at Exh. 21. In his examination-in-chief, he has stated that Gita

had married accused No. 4 about one year before the date of the incident which was her third marriage. He has stated that on 8th January, 1999

at about 8.00 p.m., Jasu [accused No. 2] had come to him and had informed that Gita is blazed and therefore, he had asked Jasu that how Gita

was blazed, but Jasu had no answer to that question. He has stated that therefore, because of the suspicion, he had proceeded to Vejalpur with his

brother''s wife Shakri and brother''s son Bhikha, his son Ramesh and his wife Vaji by hiring a rickshaw. He has further stated that when they

reached at Vejalpur, the house was locked, but thereafter Jasu had come with them. This Jasu is the brother-in-law of Gita. At that time Jasu was

asked that in which hospital Gita had been admitted and he had replied that he does not know as to in which hospital injured Gita has been taken.

So, there is some conflict in the evidence of Ramesh P.W.1 and P.W.4 Kantibhai Raval about the actual talk that had taken place at village Janu

and alleged conversation between P.W.4 and accused No. 2 at Vejalpur. According to this witness, when he was talking with accused No. 2,

green coloured car had reached there at the house of the accused. In the car Manju, Kanku[mother-in-law of Gita], Gita, Nathabhai- father-in-law

were there. This witness has further deposed that when Gita was coming out of the motor car, he had asked Gita as to how incident had occurred

and at that time, Gita told that her mother-in-law, father-in-law and brother-in-law had caught hold of her and her husband after sprinkling

kerosene, had ignited her with match stick. Gita had also told that four days prior to the date of the incident, Prahlad had come in drunken

condition and had beaten her and had asked to bring Rs. 2000/- from her father, [i.e. this witness]. In response thereof, Gita had told her husband

that as and when he stops drinking, she would bring the amount. According to this witness, after taking Gita to Shardaben Hospital, they had

informed the police about the incident. When the police asked about the incident, he had told that they are relatives from the parental side and her

in laws are residing at Vejalpur. In Cross-examination, this witness has stated that when he saw his daughter Gita, his brother''s daughter Manjula

was there in her treatment. This Manjula has married to the elder brother of accused No. 4 residing in Vejalpur. This witness and other relatives

were there at Vejalpur for about 30 minutes, but the answer given by this witness in para-8 raises one question. In para-8 of the deposition, during

cross-examination, he has stated that they had stayed at Vejalpur for about 30 minutes. He has admitted that he had talked about the incident with

Manjula. At that time, Manjula had replied that Gita is taken for treatment to hospital. Undisputedly, injured was taken to Shardaben Hospital from

the residence of the accused situated at Vejalpur. It would take about 30 to 40 minutes in reaching Shardaben Hospital from Vejalpur, because, as

discussed earlier, Vejalpur is practically part of Ahmedabad and Shardaben Hospital is Civil Hospital of city of Ahmedabad and there is no very

big distance between Vejalpur and Shardaben Hospital. Even the time of their arrival at Shardaben Hospital with injured Gita is shown to be 11.45

p.m. on 8th January 1999 Exh.40]. The injured might have reached Shardaben Hospital at about 11.40 p.m. but not prior thereto. If the

prosecution witnesses P.W.4 and P.W.1 had reached Vejalpur prior to 10.00 p.m. and had left Vejalpur for hospital within about 30 minutes to

40 minutes, then, they could have reached at the hospital prior to 11.00 or 11.15 p.m. So, the time taken in getting Gita admitted in hospital

appears to be somewhat more than expected. As per the evidence of P.W.1 and P.W.4, Manju had accompanied the injured Gita when she was

taken to Ambapur for treatment through private unqualified and she was one of the passengers who came out of the motor car. This is the say of

both these important witnesses. It is also consistent say of all these three witnesses that they had reached Vejalpur at about 10.00 p.m and when

they were inquiring about the incident, the car had returned to Vejalpur. So, it is possible to infer that between 6.30 p.m to 10.00 p.m, everybody

was back there after taking treatment from Ambapur. So, there was no scope for Manjula to answer the question of P.W.4 when she was asked

about the incident that Gita has been taken to hospital. Manjula was already there with Gita when she was taken to Ambapur and it is not the case

of the prosecution that Manjula had also accompanied P.W.1 and P.W.4 and other relatives when Gita was shifted to Shardaben Hospital. It

appears that this witness P.W.4, with an intention to keep curtain, had conveniently not replied the question asked specifically and had avoided the

fact stated by Manjula in response to the question asked to Manjula by P.W.4. Irrelevant answer can be said to have been given by P.W.4 when

he was asked about the details of conversation that had taken place between P.W.4 and Manjula.

There is no dispute that Manjula was next door neighbour to the deceased Gita and she being close relative, it is obvious that the father of the

deceased Gita must have asked Manjula about the incident and the role played by her in taking Gita for treatment to Ambapur. Admission made

by this witness in para-9 of the deposition gives an impression that this witness had no doubt qua the bona fides of the answers given by Manjula to

this P.W.4. He has also admitted that on the date of the deposition, relations were cordial with Manjula and her family members. It is stated during

the cross-examination of this witness that the police personnel who was present at Shardaben Hospital had asked this witness about the incident

and he had narrated the incident. He has further stated that facts stated by him were reduced in writing and his signature was also taken. Statement

of her daughter was also recorded by the police officer, but no such document has been produced by the prosecution allegedly signed by P.W.1

or this P.W.4. It appears that statement of the deceased Gita referred to by P.W.4 in the complaint recorded in the name of injured Gita. Of

course, he has denied the suggestion that on instigation or at the instance of somebody, he has implicated all the three persons in the incident saying

that they had caught hold of Gita and her husband had ignited fire after sprinkling kerosene.

P.W. 5 Arvindkumar S. Joshi is examined at Exh. 23. He is panch witness and he has proved the panchnama Exh. 24. He has stated that

police had seized clothes of accused No. 4. Panchnama Exh.24 shows that clothes were seized and sealed. So, this fact remains undisputed for

want of formal cross-examination of P.W.5. On 9th January, 1999, at about 10.45 p.m, panchnama of the residential house of Gita was drawn

and same is proved by P.W.6 Bharat Lekhraj Sindhi, panch witness. Panchnama is at Exh. 26. The police had seized one primus, match box,

match stick, one carboy, one kerosene lamp containing kerosene, control earth for the purpose of control sample and burnt pieces of cloth [sari],

one cotton bed sheet was also seized. Incident is of 8th January, 1999. Panchnama Exh. 26 shows that place of the incident was shown by

Manjula and this place is shown as ""Gharvihona Chhapra of Gita Prahladbhai"". It is stated that the house has one Osri admeasuring 11 x 9 feet and

the house No. is shown to be 170. Details of the panchanma indicate that the Chhapra consists one room and there is no reference that this house

was being used as a common residence of accused Nos. 1 to 4. At all places, place of incident is narrated as ""Chhapra of Gitaben Prahladbhai"".

Totality of the evidence led creates shadow of doubt as to whether accused Nos. 1, 2 and 3 were really residing together under same roof with

deceased Gita and Prahlad. On the contrary, it appears that Gita and Prahlad were residing in one ""Gharvihona Chhapra"". Manjula who has shown

the place was most competent witness to state independently about this fact, being close relative of the deceased. But for want of her evidence,

many crucial aspects have not come on record and that appears to have resulted into serious prejudice to accused Nos. 1,2 and 3.

P.W.7 Bharatji Kalaji Thakor examined at Exh. 27 is a formal witness, who has proved the arrest panchnama of accused Nos. 1,2 and 3. It is

mentioned that P.W.3 Kankuben had sustained burn injuries on her chest and she has explained as to how she sustained such injuries. The facts

stated by accused No. 3 Kankuben to police during arrest panchnama cannot be used by prosecution but Kankuben herself, while placing her

defence before the Court can make use of o that portion of panchnama. It is argued by Mr. Amin, learned Counsel for the appellant that from the

beginning, it is the say of accused No. 3 that she has sustained injuries while saving her son''s wife by extinguishing fire. If really, Manjula had

extinguished the fire, Manjula may have sustained some injury, but there is nothing on record to show that Manjula had sustined any injury. So, the

first attempt must have been made by accused No. 3 to extinguish the fire. Panchnama indicates that there was no smell of kerosene either on

hands or clothes of Kankuben as everything was seen closely. This part of the evidence has not been appropriately considered by the learned trial

Judge. It is not a matter of dispute that accused Nos. 1 and 2 have not sustained any injury and accused was the first person to rush to village Janu

so that the parents of Gita can be informed about the unfortunate incident. Clothes of these witnesses were seen by the police in presence of the

panchas.

P.W.9 Ratansinh Amarsinh [Exh.33] Police Head Constable is an important witness according to the prosecution and this witness was present

on hospital duty at Shardaben Hospital on 8th January, 1999. He has proved the entry register maintained by the hospital police constable and the

entry is at Exh.34. This entry is entered in the register at 00.05 hours on 9th January, 1999, i.e. after about 25 minutes from the arrival of Gita in

Shardaben Hospital. As mentioned earlier, hospital case papers show that Gita was admitted in the hospital after following the formalities at about

11.45 p.m. First case paper which is normally being taken out on the entry of the patient in the hospital, known as indoor case paper, is not

available on the record. Number of OPD case paper is mentioned in the indoor case paper, that is, 2216 and the indoor registration is 21305

[Exh.40]. So, within five minutes, if the patient is admitted in hospital as indoor patient, it is possible to infer that patient must have reached the

hospital latest by 11.40 p.m. So, this entry proved by P.W.9 was late by about 20 minutes prior to that, hospital duty doctors were already told

that the injured had sustained homicidal burns. The entry made in the hospital register by the police, if is read, then, it becomes clear that the same

is written at the instance of the RMO of Shardaben Hospital. Name of the doctor is not mentioned. One doctor who is examined and who made

endorsement on the police yadi prepared so as to hand over the same to the Executive Magistrate requesting him to record the dying declaration of

injured Gita, has not stated in his deposition that he was in charge of the hospital and Wardhy has been written on the instructions given by him.

The doctor, who instructed the hospital duty Police Head Constable has not been examined. As there is no OPD case paper available on record, it

was not possible even for the Court to call the doctor or RMO who may have recorded the history. Injury certificate Exh. 41 did refer the name of

the doctor who admitted the injured Gita and he is the same doctor who has endorsed the police yadi as well as dying declaration recorded by the

Executive Magistrate. History recorded by the doctor is ""homicidal home burns"". There is no clear reference made while giving history. The patient

had stated that she was caught hold by three of the family members and her husband sprinkled kerosene and blazed her. Percentage of burn as per

the certificate issued by the doctor was 68%. When injured Gita was brought to Shardaben Hospital, ointment was already applied and wounds

were under the bandages applied by the local doctor. There is clear reference in the indoor case paper [Exh.40] about the earlier treatment given

to the injured Gita. Oral version of hospital duty Police Head Constable Ratansinh Amarsinh Chauhan is in conflict with the exact words used. This

witness has attempted to say that when the lady came to the hospital, he had asked the patient and she had given details as to the cause of the

injury sustained by her and on the strength of this details, he had given Wardhy to Vejalpur Police Station. In his cross-examination, he has

admitted that normally, entries are made on the information given by the RMO, meaning thereby, he insisted on the facts stated by him in the

examination-in-chief that history was given by the injured. However, entry Exh.34 says contrary to the version and the said entry shows that the

details have been mentioned on the instructions received from RMO. Details about the pregnancy was available in the indoor case paper much

prior to the entry registered by the P.W.9. The fact that the injured was with her parental close relatives for about more than 1-1/2 hours is a

material aspect.

P.W.10 Modan Yusuf Umarbhai, Police Head Constable, Vejalpur Police Station has been examined at Exh.35. In his deposition, he has

stated that he was in charge of Vejalpur Police Station and had received wardhy from the hospital duty Police Head Constable Ratansinh

Amarsinh at 05.05 a.m and necessary entries were made in the police station register. He has tendered the entry vide Exh.36 and in turn, he had

informed PSI S.L. Parmar and Mr. Parmar recorded complaint of Gita. Though there is no reference by Gita about the place where complaint was

taken nor time is mentioned in the FIR Exh.43, but on perusal of the record received from the lower court, more particularly, report received by

the Court u/s 157 of the Code of Criminal Procedure, it emerges that offence was registered at Vejalpur Police Station on the strength of the

complaint given by Gita at about 2.30 a.m on 9th January, 1999. FIR is detailed FIR. Prior to this FIR, dying declaration Exh.19 of the deceased

was already recorded by P.W.2-Executive Magistrate at about 1.20 hrs. It appears that thus, dying declaration was prior in point of time. It is in

evidence that patient was conscious and indoor case paper does not reflect that any other treatment was given to the injured Gita prior to

recording of dying declaration or FIR. Injuries were partial on various parts of the body mentioned in certificate issued and calculation of the

percentage of the burn is also made by the doctor and the same is mentioned in the case papers. We have carefully seen the nature of injuries

found by the doctor who admitted the patient. It is not possible for us to reach to a conclusion that the patient must not be conscious or in fit state

of mind. On the contrary, such patient can remain conscious for long and may not be unconscious unless there is any complication. It is in evidence

of the I.O. that on 11th January, 1999 when he made an attempt to record further statement of Gita, he could not do so, because, she was taken

for some operative procedure. It is very likely that the deceased may have been taken for removal of useless burnt skin etc. It would not be proper

for us to draw any surmise in this regard. Crucial question before the Court is that whether it was possible for father, mother and brother of the

injured Gita to see that maximum number of family members are implicated in the crime and any deliberation could have been made for the

purpose between 10.00 p.m and 11.40 p.m when she was being taken for treatment to Shardaben Hospital. No explanation is coming forward as

to how relatives had taken three hours in shifting the patient from Vejalpur to Shardaben Hospital where one can rush in a vehicle and reach within

30 to 40 minutes. Absence of details in the case papers as to role played by all the accused persons creates shadow of doubt, otherwise, hospital

duty Head Constable would not have recorded entry after lapse of about 20 minutes from the admission of Gita. Who gave history to the hospital

duty Head Constable is a question, because, as per the details that have been recorded and produced in the present case [Exh.34] it was given by

the RMO and as per the police witness examined the same was given by the patient. Somebody must have played some role in giving history to the

hospital duty Head Constable. This situation emerges as significant situation, because, as mentioned earlier, brother of Gita had, in his cross-

examination has stated that when he was asked, he had not told the hospital duty Head Constable that his sister has been burnt alive by her

husband and her father-in-law, mother-in-law and brother-in-law had caught hold of her. If any of these two witnesses examined, i.e. Father and

brother Ramesh Kanti were really knowing, then, they would not have replied in the manner they have responded to the question asked during

their cross-examination though it prima facie appears convincing that husband of Manjula is real brother of the accused Nos. 2 and 4 and son of

accused Nos. 1 and 3. But it emerges from the totality of the facts that this Manjula is cousin sister of Gita and married to elder brother of accused

No. 4. But when it is in evidence that Manjula had reached the spot and to the rescue of burning Gita and this very witness has shown the place of

incident to the police, neither Mr. Parmar nor I.O., who ultimately took over the investigation from Mr. Parmar have cared to record the statement

of Manjula. She is not even named in the chargesheet as witness. Statement of P.W. 1 and P.W.4 have been recorded on two different occasions,

firstly on 9th January and again on 11th January. Both these witnesses have claimed that their signatures were taken by the police in the hospital.

So, who recorded those statements and where are those statements is the question. Police officers examined, including the Investigating Officer

have not attempted to explain this part of evidence. It is very likely that both these witnesses may be under wrong impression their signatures were

also obtained. But these answers given in the cross-examination qua their first response to the hospital duty Head Constable and some conflict as

to conversation that had taken place between the injured Gita and P.W.4 at Vejalpur when she was being taken out of motor car makes the case

of oral dying declaration made by Gita at about 8.00 to 8.30 p.m at Vejalpur doubtful. It was possible for the prosecution to bring the best oral

dying declaration on record through Manjula and/or person who treated Gita at village Ambapur. It appears that nothing must have been told to

the unqualified village doctor on the basis of which, he can say that the injury sustained by Gita is the result of crime committed by her family

members.

One more fact situation is that according to the prosecution, after igniting fire, all the accused had escaped from the spot and on hearing

screams, Manjula had come and with the neighbours had helped in extinguishing the fire and the evidence shows that after extinguishing the fire,

Gita was taken for treatment; father-in-law and mother-in-law were there and both of them had accompanied the injured to village doctor. If they

had escaped, how they can return in couple of minutes in a very short period and carry the injured to unqualified village doctor. Thus, theory of

participation of all accused persons does not inspire confidence. As discussed earlier, accused No. 2 had rushed to the parents of the injured.

P.W.1 and P.W.3 have not cared to explain the injuries that they may have seen, because, it is the say of the prosecution that there may be some

confrontation between the accused and parents of Gita, at the time that when parents of Gita and accused persons were proceeding to shift the

patient Gita to Shardaben Hospital. True it is that it does not appear that accused No. 4 was also present when the injured was shifted to

Shardaben Hospital. It is not in evidence that accused No. 4 had even visited Shardaben Hospital after admission of Gita in the said hospital,

though considering the fact that he himself had sustained the injuries.

Station diary[Exh. 36] of Vejalpur Police Station is nothing but repetition of entry made in the hospital duty register. Mr. Parmar, who

recorded the complaint has expired and therefore, complaint Exh.43 has been proved by P.W.12 Vikramsinh Solanki who was writer to PSI Shri

Parmar. If these witness had identified the handwriting of the complaint recorded by Mr. Parmar, then, complaint Exh.43 has status of dying

declaration. It is not even disputed by the defence that it is materially consistent to the dying declaration made by the injured to the Executive

Magistrate. Last question asked to P.W.4-father of the deceased, appears to be misleading whereby defence counsel has tried to show that the

complaint was given by Ramesh, brother of Gita. P.W.4 must be under impression that complaint was given by Ramesh-brother of Gita.

Therefore, he replied accordingly and denied the suggestion that complaint given by P.W.1 Ramesh is false complaint. But this situation raises

shadow of doubt over the fact that some statement signed by P.W. 1 Ramesh must have been recorded by hospital duty Head Constable

implicating accused or some or one of them. But without doing an conjecture in this regard, documents produced by the prosecution show that the

complaint was given by the injured and the same was recorded by Mr. Parmar and not Writer of the complaint Exh.43 has not been examined, but

it has been legally tendered in evidence and therefore, non-examination of Mr. Parmar would not come in the way of the prosecution, especially

when there is no material conflict in the complaint and the dying declaration recorded at about 1.20 a.m after midnight. There is no evidence that at

what point of time statements of P.W. Nos. 1 and 4 came to be recorded on 9th i.e., next day.

Though apparently, this is a case of three consistent dying declarations, one fact is reflected in police Yadi proved by Police Head Constable

that the dying declaration recorded by the Executive Magistrate and complaint Exh.43. History given to doctor as to cause of injury sustained by

the Gita is also a statement which can be accepted in evidence u/s 32 of the Evidence Act. But out of four statements including history given to

hospital doctor, in three there is reference of accused persons; in one they are referred as father-in-law, mother-in-law and brother-in-law and

husband and in other two, they are specifically named. The Executive Magistrate has proved these names after referring the dying declarations

recorded by him. As the injured was in sound state of mind, she was able to give name of her close relatives. She had a very short period of

marriage of one year of her third married life. It has come on record satisfactorily that she had pregnancy of about 5 months. There was no reason

for her to commit suicide. It is rightly submitted by the learned APP that she was eager to have a child. Age of the deceased Gita is shown to be

20 and 22 years in three different documents; in death certificate and postmortem note, it is shown to be 20 years and in the indoor case paper and

dying declaration, it is shown to be 22 years. It is very like that Gita may be of age between 25 to 27 year as she had already 10 years'' married

life during her first wedlock and after lapse of some period, she got married with her second husband and after customary divorce from her second

marriage after lapse of some gap of a year or so, the deceased married with accused No. 4. But this situation would not come in the way of the

prosecution. But it is relevant in reference to the maturity of an individual. So, statement made by Gita in injured condition was a statement of

matured lady having age of 24 to 26 years or even more.

Experience of the Courts and Society show that complainants and more particularly, victims on number of occasions develop tendency to

implicate maximum number of persons as accused. During her third marriage, when she found that it is again a failure and that too, at the time when

she was carrying pregnancy of about 5 months, she may have been attracted with the influence or tutoring of her parents or other relative present in

the hospital and she may have implicated maximum number of persons as accused. Elder brother Laxman has not been implicated as he is the

husband of Manjula, first cousin of the deceased Gita. It is strange that why police avoided collecting evidence of Manjula and the person who

treated Gita at Ambapur as village doctor. The motor car driver who had taken the deceased was also an independent person. He could have

been examined as a witness. This should be considered consciously, because, time gap between leaving matrimonial house of the deceased Gita,

i.e. area of Vejalpur, which is within the city of Ahmedabad for taking Gita to govt. hospital, is comparatively more than expected, keeping the

distance in mind between two places. Though there is no evidence as to distance of these two places on record and the Vejalpur police station is

shown to be a police station of city of Ahmedabad, the Court can take judicial notice of territory of City of Ahmedabad and area under Police

Commissionerate.

One more aspect which is relevant is that even as per the say of injured Gita, she had grievance only and only against her husband. He was

beating her, he had made demand of Rs. 2000/- before 3 to 4 days from the date of the incident and on the date of the incident, the accused No. 4

had beaten up her and at that time also, he was in drunken condition. Pouring of kerosene and igniting fire is possible by one when his wife is alone

in the house. There may be some element of negligence on the part of the parents in not controlling furious son-accused No. 4, but this type of

negligence would not make them abettor or active participants in the crime committed. Accused No. 1 has expired and appeal preferred by him,

obviously is to be treated abated. But it is not possible for this Court to agree with the submission made by the learned APP that this is a case

where it would not be legally possible to bifurcate the case of accused Nos. 2 and 3 on one side and accused No. 4 on the other. There is no

scope for application of elimination is the say of the learned APP, but close scanning of the evidence, as discussed above, has given rise to shadow

of doubt which indicates that accused Nos. 2 and 3 may not have actively participated in the crime as alleged by Gita in her dying declaration. It is

necessary to look to the opinion evidence available on the record. Opinion of the doctors, P.W.3 and Dr. Jayesh-PW-11 who treated the patient

and carried out the postmortem, does not rule out the possibility of inflammable like kerosene in inflicting burns. Details of injury recorded by Dr.

Chandrakant Darji in postmortem and stated by him in the deposition are sufficient to infer that highly inflammable substance must have been

poured on the body of the person injured, though he has admitted that suicidal, accidental or homicidal burns are mostly similar in look. As

discussed by us, scope of commission of suicide is not there and the prosecution has satisfactorily proved that burns were homicidal. Percentage of

burn and degree of burns rule out the possibility of accidental injury and if really Gita had sustained accidental injury, she would not implicate all the

four members who had given shelter to the injured on her third marriage. She was passing through good days of delivering a child in near future as

she was pregnant by about 5 months. So, it would not be possible for us to even think that this is a case of accident but it is a case of homicidal

injuries. Evidence is such and circumstances speak so when it is not impossible for us to rule out possibility of implicating maximum number of

persons of family of husband. We have considered the opinion being relevant in this regard. Though prosecution could have brought evidence as to

nature of injuries found on the body of accused No. 3 Kankuben by producing medical certificate and so also of accused No. 4, but the injuries

found on the body of accused No. 3 reflected in the panchnama appear to be injuries which can be sustained mostly by the persons who attempt

to save a person blazed. Accused No. 2 has not sustained any injury and his conduct appears to be the conduct of innocence as discussed. It is

not possible for us to infer that he had deliberately suppressed the fact that injured is taken to village doctor, because, he may not be aware about

the development that had taken place after leaving Vejalpur for village Janu to inform the parents of the deceased immediately. He had no inimical

terms with wife of brother, especially when she was pregnant. Age of the accused was major and he was able to understand that wife of his

brother was pregnant lady and he also could not have been feeling happy by the conduct of accused No. 4, because, it has come on record that

accused No. 4 was beating Gitaben and had developed habit of consuming liquor. Report of FSL [Exh.46], if is read along with forwarding letter

[Exh.49] sent to FSL, it becomes clear that clothes of accused No. 4 seized and sealed in presence of panchas and sent for analysis were found

stained with kerosene. These two articles were examined as Articles 10 and 11 by FSL expert. Report of Chemical Analyst [Exh.48] shows that

mark-10-one open shirt having horizontal strips show presence of petroleum hydrocarbons [kerosene]. In the same way, Article 11, i.e. one pant

of gray colour was also having presence of petroleum hydrocarbon [kerosene]. The arrest panchnama tendered in evidence by the prosecution

shows that accused No. 4 had burn injuries on his right hand and the length of injury is referred as injury starting from elbow to palm. Explanation

given by the accused No. 4 to the police at relevant point of time was that he had sustained injuries while extinguishing fire. But the nature of injury

found is more possible on account of spreading of kerosene on any part of palm used up to elbow. Both hands are not found injured nor any upper

portion of body like his mother Kanku was found injured and the person who attempts to extinguish the burning person would sustain some injury

on either face, chest or hair. Such injuries are found on the body of accused No. 3 Kanku. Clothes of Kanku were never sent to FSL as no

presence of kerosene was found by police. Police had apprehended accused Nos. 1,2 and 3 in couple of hours on 9th instant and there arrest

panchnama was drawn at 20.15 hours. But accused No. 4 was not available and he was ultimately arrested on the next date at about 13.30 hours.

So, conduct of escaping from the spot and keeping himself away from the spot of the incident and the injured wife appears to be the conduct of

guilty person. On the other hand, as mentioned earlier, deceased accused No. 1 and accused No. 3 Kanku had accompanied the injured and they

had shifted the injured to hospital or at least, to the person who can treat the injured. The accused No. 4 has not played such role. So, the

observations made by the Apex Court in the case of Prithvi Raj [supra] referred herein above, would help only accused No. 3 mother and not

accused No. 4.

It is not even possible for us to give advantage of the probability to accused No. 4. It is settled that principle of falsus in uno falsus in omnibus

is not aceptable in our Criminal Jurisprudence. Deceased Gita, even if has tried to implicate maximum number of persons in the crime under the

influence of her family members, or close relative or under the heat of excitement, it would not uproot the part of evidence which is against the

accused No. 4. Her version that her husband Prahlad sprinkled kerosene, ignited match stick and set her on fire is found convincing. If her

evidence is thus, encapsuled, then, it can be said that on the strength of the evidence of Gita, prosecution has satisfactorily established that she

sustained homicidal home burns. She reiterated the same substantially in her dying declaration and complaint. Conduct of the accused No. 4 is

inconsistent his the innocence and consistent to the guilt. Injury on the body of the person of accused No. 4 found, puts him under more

responsible position. The opinion evidence of FSL corroborates the version of the deceased that accused No. 4 sprinkled kerosene on her body

and ignited fire by using match stick. From the evidence it also emerges that where the incident occurred is the portion where accused No. 4 was

residing with the deceased and therefore, the same is referred as ""Gharvihona Chhapra of Gitaben"" and not ""Gharvihona Chhapra of accused No.

1"", otherwise, reference of the scene of occurrence would be different than mentioned in the present panchnama.

Non-examination of Manjula would help the accused Nos. 2 and 3 and not accused No. 4, considering the conduct of accused No. 4 and

other evidence. Kanku-accused No. 3 had joined Manjula in shifting the injured to village doctor. After all, Manjula was also wife of one of the

sons of accused Nos. 1 and 3, otherwise, parents of Gita would have stated that they were also informed by Manjula that even after her third

marriage, Gita is not happy at her matrimonial home and her mother-in-law and father-in-law etc. are harassing or ill-treating her. Such is not the

case of the prosecution. Evidence as to motive of commission of crime is also against accused No. 4 and not against accused Nos. 1,2 and 3. So,

according to us, it is possible to segregate the case of prosecution against accused No. 4 and other accused. We are of the view that this is a case

where learned trial Judge ought to have given benefit of doubt to accused Nos. 1,2 and 3 saying that accused Nos. 1,2 and 3 may have been

falsely implicated under some influence and tutoring, and real culprit is accused No. 4 only. In drunken condition, he may have committed this

offence or foolish mistake, but it remains heinous crime. Seperation of grain is found possible and accused No. 4 is not even entitled for any benefit

under the principle of parity.

It is not possible for us to accept alternative argument advanced by Mr. Amin that as the deceased had expired after lapse of a week and the

cause of the death show sceptisemia, accused should not be held guilty of offence punishable u/s 302 of IPC and he may be held guilty of offence

punishable u/s 304 Part I. We have to accept the say of learned APP that offence committed by accused No. 4 is murder, because, ratio, more

particularly, the observations made by the Apex Court in paras 34 to 38 of the decision in the case of Patel Hiralal Joitaram Vs. State of Gujarat,

would help the prosecution and not the accused. In this cited decision, victim had died after 14 days on account of burns sustained by the victim

lady. For short, according to us, the appeal requires to be allowed partly and therefore, following order is passed.

The appeal is partly allowed. Appeal of accused No. 1 is treated as abated. So far as the appellant Nos. 2 and 3 are concerned, the appeal is

allowed and the judgment and order of conviction and sentence dated 11.8.2000 rendered by the learned Additional Sessions Judge, Ahmedabad

[Rural] at Mirzapur in Sessions Case No. 137/99 is quashed and set aside. Accused Nos. 2 and 3 are acquitted of the charges levelled against

them by giving them benefit of doubt. Accused Nos. 2 and 3 shall be set at liberty forthwith if they are not involved in any offence. Accused No. 3

is on bail and therefore, her bail bond shall stand discharged. Fine if paid be refunded on proper identification. So far as accused No. 4 is

concerned, the appeal is dismissed and the judgment and order of conviction and sentence dated 11.8.2000 rendered by the learned Additional

Sessions Judge, Ahmedabad [Rural] at Mirzapur in Sessions Case No. 137/99 is hereby confirmed qua accused No. 4.