Kumbhar
Dhirajlal Mohanlal Vs. State of Gujarat [1996] INSC 1251 (4 October 1996)
M.K.
Mukherjee, S.P. Kurdukar M.K. Mukherjee. J.
ACT:
HEAD NOTE:
J U D
G M E N T
This
appeal under Section 379 of the Code of Criminal Procedure, 1973 is directed
against the judgment of the Gujarat High Court in Criminal Appeal No. 1312 of
1983 which reversed the order of acquittal passes by the Sessions Judge, Bhavanagar
and convicted the appellant for uxoricide and sentenced him to imprisonment for
life.
According
to the prosecution case the appellant married Hansaben (the deceased) three
months prior to her death and since marriage they were living with the parents
of the appellant. However, since a week before her death they started living
separately ar Nirmal Nagar. On January 8, 1983
at or about 8.45 A.M. Hansaben asked the appellant as to why he had sold her kandora
(waist-band). The appellant replied that for paying rent he had to sell the
same. Over this issue a quarrel ensued between them in course of which the appellant
first started beating her with a tawetha (iron instrument used for cooking
purpose). Thereafter he poured kerosene oil on her and set her on fire by
throwing a lighted match stick. On seeing the blaze the appellant tried to
extinguish the fire and in that process he also got burn injuries on his hands.
Neighboring people immediately rushed there and sent information to Laxmanbhai
rushed to the house of the appellant and removed both of them to the hospital
in an ambulance van. There Dr. B.K.Joshi (P.W.2) examined Hansaben at 9.15 A.M. in the emergency ward and found that she had
sustained 65% burns. On the basis of the statement she made Dr. Joshi then
informed the Bhavnagar City Police Station over telephone that Hansaben was
burnt by her husband by pouring kerosene and he had also received burn
injuries. Shri Lakshari (P.W.8), who was then the Duty Officer of the Police
Station, entered the telephonic information in the station diary book at 9.50 A.M. He immediately sent an yadi (note) to C.K.Patel, a
head constable who was then attached to the hospital as duty clerk, for doing
the needful. On receiving that note Patel went to the hospital and recorded the
statement of Hansaben (deceased) (Ext.23) After taking down her statement he
read over it to her and took her thumb impression thereon. He forwarded the
statement to the Police Station and sent for the Executive Magistrate to record
the statement of Hansaben. Shri Mathur (P.W.3), the Executive Magistrate,
reached the hospital at 10.30
A.M. and on receipt of
the opinion of Dr. Upadhyaya that she was conscious and fit to make a statement
recorded her statement in a question and answer form.
On the
basis of the statement earlier made by Hansaben before the head constable
(Ext.23) a case under Section 307 IPC was registered against the appellant and
S.I. A.M.Khan (P.W.29) took up investigation. He went to the house of the
appellant, prepared a sketch map and seized some burnt cotton mattresses, some
pieces of jute and other articles.
Consequent
upon the death of Hansaben on January 9, 1983
at 9.30 A.M. and completion of investigation he
submitted chargesheet against the appellant under Section 302 IPC.
The
appellant pleaded not guilty of the charge levelled against him and his defence
was that while preparing breakfast Hansaben accidently caught fire from the
oven.
In the
absence of any eye witness, the prosecution rested its case upon three dying
declarations of the deceased; the first of which was before Dr. Joshi
immediately on her admission in the hospital, the second before the head
constable and the last one before the Executive Magistrate. On consideration of
the evidence the trial Judge came to the conclusion that the prosecution failed
to prove its case against the appellant beyond reasonable doubt and the defence
of the appellant was probable. Accordingly he acquitted the appellant. In
reversion the order of acquittal the High Court firstly noticed that the trial
Judge did not even consider the dying declaration mode by the deceased before
Dr. Joshi. The High Court next noticed that the trial Judge's remark that there
were infirmities and discrepancies in the dying declaration recorded by the
Executive Magistrate was patently wrong. The High Court also commented upon the
inference drawn by the trial Judge, that in view of the excruciating pain the
deceased was suffering it was not expected of her to make any dying
declaration, as there was no evidence in support thereof; and took note of the
testimony of Dr. Joshi that after she was administered injection of campose and
novelgin she would be relieved of the pain and be in a fit and proper condition
to give her dying declaration. The finding of the trial Judge that, as Dr. Upadhyaya
who had certified that the deceased was in a fit condition to speak was not
examined by the prosecution no reliance could be placed on the dying
declaration, was overruled by the High Court on the ground that evidence was
led to prove that Dr. Upadhyaya was not available and that Mr. Mathur had
testified that Dr. Upadhyaya had certified about the condition of the deceased.
The other observation of the trial that the attempt of the appellant in trying
to save the life of his wife and getting injured thereby fully supported the defence
theory was also negative by the High Court. As, according to the High Court all
the three dying declarations made by the deceased were reliable it passed the
impugned judgment.
This
being a statutory appeal we have for ourselves gone through the entire evidence
on record to ascertain whether the High Court was justified in setting aside
the acquittal of the appellant. Regarding the threshold question as to whether Hansaben
met with her death due to burns, the parties did not join issue. This apart, uncontroverted
evidence on record, particularly that of Dr. C.C. Kothari, who held the
post-mortem examination on the dead body of Smt. Hansaben unmistakably provides
an affirmation answer to the above question. The crucial question therefore
that now falls for our determination is whether she met with her such death at
the hands of the appellant or accidentally, as contended by him. To answer this
question we may first advert to the admitted fact that the deceased sustained
the burn injuries at or about 8.45 A.M. and
was brought along with the appellant to the hospital within 30 minutes. Coming
now to the evidence of Dr. Joshi (P.W.2) who examined her immediately after her
admission , we get that he examined her in the emergency ward at 9.15 A.M. and found second and third degree burns over her
face, neck, chest, abdomen, both upper lips and all over the body. She however
was conscious.
He
gave her medicine as also campose and analgesic injection to relieve her pain.
She stated before him that she was burnt by pouring kerosene oil over her body.
Thereupon Dr. Joshi rang up Bhavnagar `A`
Division Police Station and suggested that her dying declaration should be
recorded immediately. This information, as it appears from the relevant entry
in the station diary book, was received by PSI Mr. Lakshari (P.W.8) at 9.50 A.M. Since this information, and for that matter the
entry, has an important bearing in this appeal it is extracted below :-
"At this time, Medical Officer Shri B.K. Joshi, doctor of the hospital,
informed that Hansaben Dhirajlal, caste by Kumbhar Kadia, aged 18, of Bhavnagar,
Add: Nirmalnagar Street No.5, has brunt down by her husband Dhirajlal Mohanlal,
aged 22, Nirmalnagar, Street No.5 by spraying kerosene, and he himself has been
effected by fire. Both being are admitted in Burns Ward and the condition of Hansaben
is serious and while the condition of her husband Dhirajlal is normal.
The
person who brought them to Hospital is Laxman Naran." Refreshing his
memory from the case papers of the deceased (Ext.18) Dr. Joshi next stated that
her dying declaration was recorded at or about 10.30 A.M. on the same day in the hospital after her physical
condition was certified by Dr. Upadhyaya. He further stated that she died in
the following day i.e. 9.1.1983 at about 9.10 A.M. In cross examination he stated that the patient would be relieved of
pain after having been administered injections of campose and analgesic. He
asserted that the deceased did not find any difficulty in speaking because of
burn injuries on the lips.
In
proving the dying declaration made before him, Mr. Mathur (P.W.3), the
Executive Magistrate, testified that on receiving the information on January
8,1983 that his presence was required in the hospital to record a dying
declaration, he reached there at 10.30 A.M. Dr. Upadhyaya identified Hansaben a
the person whose dying declaration was to be recorded and after he gave a
certificate that she was in a fit condition t make a statement he recorded her
statement (Ext.20). According to Mr. Mathur, at that time Hansaben was
conscious and able to speak. He testified that on the beginning he asked
questions about her name, husband`s name etc. and after she replied to all
these questions he asked as to why she was brought to the hospital. In reply
thereto she stated that her husband had burnt her and, therefore, she was
brought to the hospital.
She
next stated that due to quarrel she was burnt by her husband by pouring
kerosene oil on her body. She further stated that the door of the house was
closed and she was not allowed to open it. She next stated that only she and
her husband were residing in the house. She lastly stated that as the quilt was
thrown on her she could not raise shouts.
Mr.Mathur
claimed to have read over her statement to Hansaben and that after finding it
to be correct she put her right thumb impression. On perusal of his evidence we
find that in spite of searching cross-examination the appellant could not
succeed on eliciting any favorable answer. Rather, it was elicited on his
cross-examination that when he had gone to the cabin of Hansaben, Dr.Upadhyaya
was talking with her - which necessarily means that she was fully conscious.
A
suggestion was put to him that he was out of station on that particular day and
that he did not record the dying declaration which was emphatically denied by
him. It stands fully established that at the material time Hamsaben was in a
fit state of mind and she voluntarily made the statement on the basis of her
personal knowledge without being influenced by others. We have bot found any
discrepancy whatsoever in the above dying declaration which could have
justified the trial Judge to discredit the same. So far as the other
declaration before Dr. Joshi is concerned, the trial Judge did not, as noticed
earlier, advert to all.
Since
these two dying declarations proves the prosecution case beyond reasonable
doubt, we need not go into the question whether the dying declaration made
before the head constable(Ext.23) is reliable or not.
Mr.
Kumar strenuously urged that the presence of burn injuries on the person of the
appellant clearly indicated that the version a given out by him was a probable
one and the High Court was not justified in setting aside the order of
acquittal. We do not find any substance in this contention. The above two dying
declarations clearly indicate that it was only after the deceased was put on
fire that appellant sustained the burn injuries. In the dying declaration which
was made before the Executive Magistrate the deceased stated that since quilt
was put upon her by her husband she could not shout. It was not unlikely,
therefore, that while putting the quilt the appellant might have sustained burn
injuries. Another circumstance which negatives the theory of accidental death
is furnished by the dying declaration (Ext.20) itself wherein the deceased
stated that in the house in question she and her husband were only living and
that after she was burnt, the door of the house was closed for which she could
not go out. Indeed, the above statement clearly negatives the theory of
accidental death and on that other hand indicates that the appellant wanted to
cause her death by burning. Even if we proceed on the assumption that the
appellant sustained the injuries while extinguishing the fire still it would
not lead to the inference that the fire was accidental for the dying
declaration itself indicates that he received those injuries after he had set
her on firs. As rightly pointed out by the High Court a shrewd person may adopt
this tactics of first setting his wife on fire and then make a show to extinguish
fire and thereafter remain by her side. The High Court was equally justified in
remarking that in this case the appellant almost succeeded in making out his defence
but unfortunately for him his wife was able to speak and make statement
disclosing the entire facts.
Having
considered the entire evidence on record in the light of the judgments of the
learned Courts below we are in complete agreement with the high Court that the
reasons canvassed by the trial Court for acquittal of the appellant are preverse.
We therefore uphold the judgment of the High Court and dismiss this appeal.
Back
Pages: 1 2