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2001 Supreme(Guj) 839
Gujarat High Court
Judgename :B.J.Shethna, D.P.Buch
SATHWARA SURESHKUMAR GANGARAM - Appellant
Versus
STATE - Respondent
CRIMINAL APPEAL 593 of 1993
Decided On : 12/27/2001
Headnote:(a) Criminal Trial — Dying declarations — Out of three dying declarations on record, trial Court has rightly relied on the last dying declaration, which is in handwriting of deceased herself and gives cogent reasons for not disclosing true facts earlier either before doctor or Magistrate — FSL report and doctors evidence denying any smell of kerosene also not material in the facts of the case — Small amount of kerosene used and delay in examination might be reasons for that — Besides it is an expert evidence which could not be relied upon in face of clear cut evidence in the form of dying declaration — Held, trial Court rightly connected accused appellant on basis of Ex. 45 dying declaration — Appeal dismissed as having no merit.
The way in which she had narrated everything in her dying declaration on 21.3.1993 shows that third and the last dying declaration made by her was wholly true and reliable. No doubt it is true that there are some contradictions in the evidence of the prosecution witnesses; (1) Naranbhai and (2) Savitaben, but such contradictions are bound to be there in such type of cases as the normal human tendency to say something more than what is exactly happened. However, in our considered opinion such contradictions would not affect the prosecution case when we are fully satisfied with the third dying declaration Exh. 45 is rightly relied upon by the learned Judge for convicting the appellant-accused.
[Para 14]
It is true that FSL report and doctors evidence rules out the smell of kerosene. But panchnama of scene of offence Exh. 53, which was recorded immediately after the incident discloses that there was smell of kerosene on the quilt. It may be that because of some delay in examination no smell of kerosene must have been found in FSL report. It may be that kerosene was sprinkled from small bowl, therefore, also at the time of examination its smell might not have been noticed after a considerable time. But that will not destroy the dying declaration made by deceased-Bhavna. The finding of small steel bowl with the kerosene tin also suggest that kerosene which was poured on her body may not be of large quantity and because of that neither doctor nor FSL must have noticed the smell of kerosene. After all it is an expert evidence and when there is a clear cut evidence in the form of dying declaration of the deceased which was made in a very natural manner, then we would rather prefer to rely upon such evidence than the expert evidence.
[Para 15]
(b) Criminal Trial — Expert evidence — Reliability — Same can not be relied upon in face of clearcut reliable evidence in the form of dying declaration made in a very natural manner.
( 1 ) THE appellant-accused-Sathwara Sureshkumar Gangaram has challenged in this appeal the impugned judgment and order of conviction and sentence dated 30. 4. 1993 passed by the learned Addl. Sessions Judge, Mehsana in Sessions Case No. 159 of 1992 whereby the learned Judge convicted him for the offence under Section 302 of IPC and sentenced him to suffer life imprisonment and to pay fine of Rs. 200. 00 in default to further undergo S. I. for 3 months. However, he has acquitted the accused for other offences punishable under Section 409a and 201 of IPC by giving benefit of doubt by that very order.
( 2 ) THE appellant-accused along with other accused persons tried for the offence under Section 302 of IPC for committing murder of his wife deceased-Bhavna in the mid night hours at 2. 00 p. m. of 19. 3. 1992. All the four accused were also tried for the offence under Section 498-A of IPC. All the four accused were also tried for the offences punishable under Section 201 of IPC for destroying evidence.
( 3 ) AS per the prosecution case the present appellant-accused belongs to `kadia (mason) community. The complainant-Naranbhai Revabhai PW-2 Ex. 41 is the father-in-law of the appellant-accused. He had two daughters; (1) Harshida and (2) deceased-Bhavna. Harshida got married to Satwara Ramesh Gangaram, accused No. 2, real brother of the present appellant accused. He was harassing his wife-Harshida, therefore, finally they got separated with divorce on 6. 12. 1990. Deceased-Bhavna got married with the present appellant-accused. At that time she was school going, therefore, she was staying with her parents. After the divorce of Harshida, on the assurance of the present accused and other three accused, complainant-Naranbhai sent his second daughter-Bhavna at her in-laws place on the condition that she will not be harassed. However, present appellant-accused sold away the ornaments of his wife deceased-Bhavna and warned her not to disclose the same to her parents and to tell them that they were lost. However, she told her parents the truth. Therefore, she was subjected to mental as well as physical cruelty by the appellant-accused. Occasionally, he was taking away money also.
( 4 ) ON 19. 3. 1992 at about 1. 30 p. m. the complainant received a telephonic message from Prahladji, elder brother of the present appellant-accused informing that Bhavna received burn injuries and she has been admitted in Civil Hospital, Ahmedabad, therefore, they may come immediately. Thereupon, without wasting any time complainant-Naranbhai reached Ahmedabad Civil Hospital in the afternoon on 19. 3. 1992 along with his wife Savitaben Naranbhai PW-3 Ex. 44 and his brother. Bhavna was in ward Ex-5. They inquired from Bhavna that how she received burn injuries. But in the presence of the appellant-accused and his other family members she did not give any reply to them. On that night i. e. on 19. 3. 1992 complainant-Naranbhai along with his brother Mafatlal came back to their village Ladol and on the next day of morning i. e. on 20. 3. 1992 he along his brother-Mafatlal and two other brothers-in-law went to Mehsana Police Station and gave a written complaint Ex. 55 against present appellant and other accused for the offence under Section 498-A and 114 of IPC. The said complaint was drafted by his brother-Mafatlal. After registering the FIR police started investigation. Mr. Rasiklal Nandasania, PSI, PW-9 Ex. 67, who investigated the case, went to Ahmedabad and recorded the statement in the form of dying declaration of deceased-Bhavna on 20. 3. 1992. Unfortunately, though the said dying declaration made by deceased-Bhavna, which was very much there on record, but for some or the other reason it could not be exhibited and brought on record, wherein she has clearly stated that she was burned alive by her husband-present appellant accused. When it is not exhibited then no importance can be attached to it and we have not made any use of it against the
