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2009 Supreme(Guj) 25
2009 (2) GCD 893 (Guj) (DB)
Hon’ble Mr. Justice C.K. Buch &
Hon’ble Mr. Justice D.N. Patel
Nathabhai Maganbhai Raval & Ors. [Ahmedabad]
Versus
State of Gujarat
Criminal Appeal No. 850 of 2000—Decided on 27/01/2009
Appearance :
Mr. Nitin M. Amin, for the Appellants No. 1-4.
Mr. H.L. Jani, Addl. Public Prosecutor, for the Opponent No. 1.
Point in Issue :
Whether on the facts and circumstances of the case conviction of appellant accused is sustainable?
Headnote:Head Note :
[Indian] Penal Code, 1860 (Central Act 45 of 1860) — Sections 302, 498-A, 504 read with 114 — Cruelty and murder — Conviction — Appreciation of evidence — Finding of — Sustainability — Prosecution case is that on 08.01.1999 at about 6 PM Accused No. 4 husband of deceased was drunk — He abused the deceased and assaulted her — All the three rest of the Accused Nos. 1, 2 and 3 then caught hold of the deceased and Accused No. 4 sprinkled kerosene and set deceased ablaze — Deceased later during treatment at hospital succumbed to injuries — Court on scrutiny of the prosecution witnesses examined at trial found that prosecution in the case has not examined the material and independent witnesses though they were available — The trial Court has mainly based conviction of appellants on dying declaration and to some extent on the conduct of the accused — The deceased had an opportunity to tell the true story as to the incident first to her real cousin who first came on the scene and then other persons accompanying the deceased in car when she was being taken for treatment but she has not made any disclosure to them — It was after parents of the deceased had reached their dying declaration is recorded — It can not be considered free from influence of tutoring — That apart conduct of accused taking the deceased to treatment in car is indicative of the innocence of the accused — Accused No. 2 had firstly rushed to the parental house of the deceased so that they can be informed about the incident — The conduct of the accused is consistant with their innocence and not with the guilty — Two of the four accused persons had sustained injuries and these injuries in the facts and on appreciation of evidence appear to have been sustained by them while trying to extinguish the fire — There is no positive evidence that injuries were homicidal and for this purpose bare words of the deceased ought not to have been accepted as Gospel truth — However so far Accused No. 4 concerned deceased had grievance only and only against him who is husband of deceased — He was beating her and made a demand of Rs. 2,000 — On refusal by deceased to meet his demand pouring kerosene and igniting fire is possible by him when wife was alone in the house — There may be some negligence on the part of parents not to control him but it would not make them abettor or active participants in crime committed — Accused No. 1 died during pendency of appeal, therefore, his appeal is treated as abated — So far Accused Nos. 2 and 3 are concerned their appeal is allowed and their conviction is set aside — However, so far Accused Appellant No. 4 is concerned his appeal is dismissed and judgment and order of trial Court is confirmed.
Held :
In the present case, 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 Government 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.
[Para 12]
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.[Para 16]
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 Government hospital, is comparatively more than expected, keeping the distance in mind between two places.
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.
[Para 27]
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. [Para 28]
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.
[Para 29]
Law Laid Down :
Victims on number of occasions develop tendency to implicate maximum number of persons as accused.
Appeal Partly Allowed
C.K. Buch, J.—The appellants were tried by learned Additional Sessions Judge, Ahmedabad [Rural] at Mirzapur for the offences punishable under Sections 302, 498-A, 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 under Section 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 under Section 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 11.08.2000 is challenged by the present appellants. This Court admitted the appeal on 06.09.2000, but thereafter, on 29.08.2005, 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.
2. 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 20.09.2000 and thus, she is on bail.
3. We have carefully gone through the order of conviction and sentence and the Charge [Exhibit 4] framed by the learned trial Judge. The prosecution case, from the papers and evidence on record reveals in nutshell as under:—
4. 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 08.01.1999, 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
