Bhagubhai
Manilal & Ors Vs. State of Gujarat [1996]
INSC 879 (31 July 1996)
Faizan
Uddin (J) Faizan Uddin (J) Majmudar S.B. (J) Faizan Uddin,J.
CITATION:
JT 1996 (7) 74 1996 SCALE (5)544
ACT:
HEAD NOTE:
1.
These criminal Appeals by the three appellants, namely, Bhagubhai Manilal, Chinubhai
Manilal and Rajnikant Chhaganbhai have been directed against the common
judgment dated 30.4.1984 passed by the High Court of Gujarat dismissing the
Criminal Appeal Nos. 906/81, 907/81 and 1072/81 preferred by the appeallants
against their convictions under Section 302/34 of the Penal Code for which they
were sentenced to undergo life imprisonment by the additional City Sessions
Judge, 7th Court at Ahmedabad in Session Case No. 116/81 decided on 31.8.1981.
2. The
proseqution case was that the buffalo belonging to the acquitted accused Maheshbhai,
Shivabhai was missing and he alongwith several other Patels of the village
visited the Harijans Colony twice in search of the buffalo but the buffalo
could not be traced out. According to the prosecution in the early house of
28.12.1980 about 10 Patels of the village went to the filed of Jaswant Singh
and brought the deceased Shakrabhai Prembhai Harijan to the Panchayat Office on
the allegation that he had committed theft of a wrist-watch and a blanket,
where it is said, he admitted to have committed the theft of the wrist watch
which he handed over to them. The further case of the prosecution was that out
of those 10 Patels, 5 persons namely, the three appellants herein and the acquitted
accused No. 8 Manubhai and Accused No. 9 Anilbhai entered the room where Shakrabhai
was taken, poured Kerosene on his person and set him afire. Thereafter Shakrabhai
was taken to the Osri of Panchayat Office where the fire was extinguished.
Meanwhile Ramanbhai, PW 5 the brother of Shakrabhai arrived there and on his
asking Shakrabhai told him that one of the 5 accused had poured kerosene on him
ond his clothes were set on fire by igniting two match - stick and then the
appellant Bhagubhai dragged him out.
Ranchhodbhai,
PW. 12 gave message to the police and, therefore, the police also arrived at
the place of occurrence. The requisition was sent to the Executive Magistrate
and the injured Shakrabhai was removed to the hospital by the police in an
Ambulance. The Executive Magistrate arrived at the hospital and recorded the
dying declaration Ext. 37 of the deceased Shakrabhai between 12.15 to 12.45
P.M. The statement
Ext. 57 of Ramanbhai, PW 5 was recorded by the Police Inspector. PW 17 which
was sent to the Police-Station for registration of offence.
3.
Besides the three appellants named above, six other co- accused were also
arrested and tried alongwith the appellants. At the trial the acquitted accused
as well as the appellants denied their guilt and pleaded false implication. The
appellant Bhagubhai in his written statement took the plea that the deceased
was made to sit in the Panchayat Office at about 6.30 A.M. where on being
questioned he admitted to have committed tha theft and produced a wrist-watch
which was seized under a Panchnama and when he was about to send the report
thereof the heard the cry that something was burning in Panchayat Office and
when one Somabhai opened the door of the record room, Shakrabhai came out
running from said room in Osri in burnt condition and fell down in Osri. He
brought a quilt and put it over the body of Shakrabhai in order to extinguish
the fire. Thereafter, he being police Patel prepared a report stating that Shakrabhai
had committed theft and had burnt himself and sent the same Narol. He further
made the statement that he went to Radio-Station at 8.15 A.M. and telephoned for the Ambulance as a result of which the
Ambulance came in which in Shakrabhai was taken to the hospital.
4. The
learned Session Judge on evalution of the prosecution evidence and relying on
the dying declaration Ext. 37 recorded by the Executive Magistrate Convicted
the three appellants under Section 902 read with Section 84 I.P.C. and
sentenced them to undergo life imprisonment and acquitted rest of the six
co-accused. As aside earlier the three appellants filed three separate appeals
in the High Court against their conviction and sentence. The respondent State
also filed an appeal against the acquittal of accused Nos. 8 and 9, namely, Manubhai
and Anilbhai Popatlal. The High Court dismissed the said appeals upholding the
conviction and sentence of the appellants and also dismissed the appeal filed
by the State.
5. Shri
Jethmalani, learned senior counsel appearing for the appellants strenuously urged
that the two Courts below have committed serious error in accepting the dying
declaration Ext. 37 in convioting the appellants and that in any case the
appellant No. 1 Bhagubhai must be placed in the same position and should be
given the same benefit as has been give to the acquitted accused Nos. 8 and 9,
namely, Manubhai and Anilbhai Popatlal particularly because there is no
allegation to the errect that the appellant No. 1 Bhagubhai had ignited the
match-stick nor any overt act is attributed to him but the only allegation
against him is that he poured kerosene oil which was an act attributed to the
accused Nos. 8 and 9 who have been acquitted on benefit of doubt. He also
submitted that the appellant No. 1 being a police Patel, had given information of
the incident to the police and had also called the Ambulance and covered the
body of Shakrabhai to extinghish fire which are facts consistent with his
innocence and, therefore, he deserves acquittal.
6. We
have given serious consideration to the submission made above and have perused
the dying declaration Ext. 37, other material on record and the judgments
passed by the Trial Court and the High Court. So far as these three appellants
are concerned we do not find any infirmity in the dying declaration Ext. 37
made by the deceased to the Executive Magistrate. The deceased had made a
categorical statement that the three appellants and accused Nos. 8 and 9 had
brought him to Gram Panchayat Office and poured Kerosene on his person. He
further stated that appellant Nos. 2 and 3, namely, Rajnikant No. 1 threw him
out. According to the prosecution before the dying declaration Ext. 37 was
recorded by the Executive Magistrate, the deceased is said to have made oral
dying declaration to his brother Ramanbhai. PW 5 but Ramanbhai did not depose
that the deceased had given the names of accused Nos. 8 and 9 to be amongst the
accused who had poured kerosene on his person.
On the
basis of this discrepancy the Trial Court and the High Court gave benefit of
doubt to accused Nos. 8 and 9 and, therefore, maintained their acquittal. But
the case of appellant No. 1 could not be and placed on the same footing as the
case of the acquitted accused Nos. 8 and 9 for the simple reason that even
according to the oral dying declaration made to Ramanbhai, the appellant No. 1
had poured kerosene oil and the appellants No 2 and 3 had ignited the
match-stick to set fire to the clothes of the deceased and the same version
finds place in the dying declaration recorded by the excutive Magistrate. There
is, therefore, no question of any doubt with regard to the part played by the
appellant No. 1. This apart, the deceased clearly stated in dying declaration
Ext. 37 that it was appellant No. 1 Bhagubhai who threw him out.
7. As
regards the submission made by the learned counsel for the appellants that the
appellant No.1 had sent information of the occurrence to the police and had
called the Ambulance which indicated his innocence, we find that this argument
is wholly without any substance and contrary to the evidence on record. The
evidence on record clearly goes to show that the information of the occurrence
to the police was given by Ranohhodbhai, PW 12 and after the police arrived at
the place of occurrence, the Police inspector Ram Asrey, PW 17 immediately sent
massage for the Ambulance van in pursuance of which the Ambulance arrived and
the victim was sent to the hospital where his dying declaraion was record. The
fact that the appellant No. 1 brought the guilt in order to cover the body of
the victim to extingush fire is based on the statement of hostile witness, PW
10 whose evidence on proper scrutiny and evaluation has been rightly rejected
by the two Courts. Thus the defence set up by appellant No. 1 and the written
statement made by him in his defence is found to be wholly false.
8.
Lastly, learned counsel for the appellants alternatively urged that having
regard to the facts and circumstances of the case the appellants could not be
attributed with any intention to commit the murder of Shakrabhai and,
therefore, at best the offence would be one under Section 304 part I or II of
the Penal Code. After due consideration of the evidence on record, particularly
the medical evidence we are unable to pursuade ourselves to concede to the
submissions. We have already discussed the evidence as to how the deceased was
forcibly taken away from the field and confined in the record room of Panchayat
Office where kerosene was poured on his body and put to flames. After he was
taken to the hospital he was first examined by Dr. D.N. Shah who was incharge
of the Burns Wards of L.G. Hospital, Ahmedabad. Dr. Shah on examination of the
victim found that he had deep burns on various parts of his body including
head, neck, chest-anterior and posterior, abdomen, genitals, right and left
upper and lower limbs and his total burns were to the extent of 76 percent.
Dr
also found smell of kerosene. Similar is the evidence of Dr. S.N. Joshi who was
serving as House Surgeon in the Burns Ward of L.G. Hospital Ahmedabad. He also
found kerosene smell. After the death of Shakrabhai in the hospital Dr. Vaghela,
Madical Officer performed and autopsy over the dead body and found the
following external injuries:
1. A
bruise on the front of the left thigh about 2 x 4 x 1 cm.
2. A
bruise on the abdomen of right side on the upper part transversely about 2 x
223 cm.
3.
Burns superficial and deep in front of both thighs, front of abdomen and on the
whole both upper limbs, on face, on hand, on back and sole.
On
internal examination Dr. found haemotoma on right Parietal region, haemotoma on
occiptal region, restrosternal haemotoma in the bone in the centre connecting
ribs of both sides of the chest, haeomotoma on right side upper abdomen and
blood of about 200 c.c. was found in peritonial cavity and abrasion on the
right lobe of the liver and there was bleeding from the liver. According to the
opinion of the doctor, various injuries found on the perosn of the deceased
were sufficient in the ordinary course of nature to cause his death. The cause
of death was due to shock on account of burns and haemorrage from various
injuries. With this evidence it is difficult to conceive of a case under
Section 304 Part I or II. The offence committed is nothing short of murder. The
appellant No. 1 being a police Patel of the village acted in a most high handed
manner and took the law into his hands which could not be viewed with any
leniency.
The
Trial Court as well as the High Court have minutely scrutinised the evidence
and have recorded the consistent finding with regard to the guilt of the three
appellants and we find ourselves in agreement with the view taken by the two
Court below. In the result the three appeals fail and are hereby dismissed. The
appellants are on bail. Their bail bonds are cancelled and they are directed to
surrender themselves to serve out the sentence awarded to them.
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