Full Judgment Text
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CASE NO.:
Appeal (crl.) 618 of 2006
PETITIONER:
Maniben W/o Danabhai Tulshibai Maheria
RESPONDENT:
State of Gujarat
DATE OF JUDGMENT: 11/05/2007
BENCH:
S.B. Sinha & Markandey Katju
JUDGMENT:
J U D G M E N T
S.B. SINHA, J.
1. Appellant is the mother in law of the deceased. They were living in
the same premises. Whereas the deceased and her husband Dinesh
Danabhai were occupying the first floor, appellants were occupying the
ground floor. There was, however, a common wash room at the ground
floor. The passage to the first floor of the house was also through the
ground floor.
2. There was a dispute between the families in regard to the charges for
consumption of electrical energy. The dispute between the parties led even
to the appellant lodging a complaint against her son Dinesh resulting in his
arrest. At the relevant point of time, the deceased was pregnant. At about
10.15 a.m. on 31.7.2002, when Dinesh was in his office and their daughter
Dolly was asleep, the deceased came to the ground floor for answering the
call of the nature.
3. As she was about to climb the staircase for going to the first floor,
Girishbhai (Accused No. 1) is said to have caught her hair from behind and
forcibly threw her on the floor, poured some kerosene over her body, and
appellant is said to have lighted the match stick. Both the accused thereafter
went outside the house. The deceased tried to extinguish the fire by pouring
water on her person from a bucket. In the meanwhile, she received
extensive burn injuries. She cried out for help whereupon the wives of her
elder brothers-in-law, namely Pushpaben and Gitaben, came together with
some neighborers. They took her to a hospital and her husband was
informed. She disclosed the cause of her receiving burn injuries to the
doctor. She was referred to the Civil Hospital at Ahmedabad in view of
seriousness of her condition. She was immediately taken to Ahmedabad
and was admitted in the V.S. Hospital in the burns ward.
4. Her statement was recorded by PSI Mr. N.J. Gohil and again she
stated about the incident at some detail. Her dying declaration was also
recorded by an Executive Magistrate, Metro Area Court at about 8.30 in the
afternoon. She answered all the questions, the relevant part whereof is as
under:-
"10. Facts of the incident -
We are staying on upper portion.
Out mother-in-law and brother-
in-law deny to stay on upper
part. Latrine is at the outside.
My brother-in-law closed the
window which is for going upper
and down house and my brother-
in-law named Girish by pouring
Kerosene and my mother-in-law
by lighting match-stick have
burnt me."
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5. She also made similar statements at the time of her admission in the
Burns Ward of the V.S. Hospital, Ahmedabad to the doctors.
6. Both the accused were convicted by the learned Trial Judge and the
appeal preferred by them has been dismissed by reason of the impugned
judgment.
7. The Special Leave Petition was filed by both of them. The Special
Leave Petition of Girishbhai was however, dismissed.
8. Mr. H.A. Raichura, learned counsel appearing on behalf of the
appellant in support of this appeal raised the following contentions.
(i) There being discrepancies in the statements of the deceased in her
so-called dying declarations, conviction could not have been based
solely thereupon, as in some of the dying declarations she did not
mention the specific mention role played by the appellant herein.
(ii) Her dying declaration could not have been relied upon as the death
took place only after 25 days of the First Information Report.
(iii) As would appear from the record that before the dying declarations
were made, her husband was present and thus, she must have been
tutored.
9. Ms. Hemantika Wahi, learned counsel appearing on behalf of the
State, on the other hand, would submit that in all her dying declarations, she
has made a specific statement in regard to the involvement of the appellant
together with her son Girish Bhai, and these dying declarations are
consistent in nature and there is, thus, no infirmity in the impugned
judgments.
10. The deceased suffered 85% burn injuries which as per the statement
of Dr. Vipul are :-
"...there were 4% burns in the head and neck of
Kokilaben. There was 9% burns on the right
shoulder upto finger. There was 5% burns from
left shoulder to left hand fingers. There was 6%
burn on the front side of the chest. There was 9%
burn at the back side of the chest. There was 15%
burns on the right leg. There was 18% burn on the
left leg. There was 1% burn on the private part. In
this way there there was total burn of 85%. The
burns had reached upto depth from upper side....."
11. The burn injuries were caused by kerosene as is also evident from the
Report of the Forensic Science Laboratory (Ext. 73). It may be true that the
deceased gave her statement about the cause of her suffering injuries at
about 12.45 in the morning before Dr. Ashish, but she gave her statement
also before the Magistrate. Admittedly, there is no discrepancy in regard to
the involvement of the appellant vis-‘-vis her son Girishbhai. The only
discrepancy which has been pointed out by Mr. Raichura was that in some of
her statements, she had not stated the actual overt act played by appellant
herein. In these statements, she merely had answered the questions put to
her by different persons. When questions are put differently, answers
would also appear to be different. On a first glance, it may appear that the
detailed description of the offence is missing, but in our opinion the
statement of the decease must be construed reasonably. It is in dispute that
she had involved both the accused in all her statements. Only because her
husband had rushed to the hospital upon hearing the news, the same would
not mean that the deceased was tutored by him. A son would not falsely
implicate his mother, despite their bitter relationships. Furthermore first
disclosure in regard to the cause of the incident having been attributed upon
her brother-in-law and the appellant, it is unlikely that the same was tutored
by her husband. She was an educated lady, she had studied upto the second
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year of graduation. The very fact that the appellant and her son had
developed ill relations with the deceased and her husband is an indicator to
show that why the incident had taken place. The presence of the appellant at
the house at the relevant time is not disputed. Also, the involvement of
Girishbhai has not been disputed.
12. The defence case was that the deceased had committed suicide. The
defence case to that effect was disbelieved for good reasons as because she
was pregnant and she had a daughter aged about 2 and = years. The
daughter was sleeping on the first floor. Indisputably the wash room was on
the ground floor. It was a common one. Her statement, therefore, that she
had come to answer the call of the nature and thereafter had been going
upstairs cannot be disbelieved keeping in view the nature of the injuries.
Even Mr. Raichura conceded that she must have fallen on the ground and the
kerosene was poured on the front portion of her body.
13. Immediately, after the incident, she raised a hue and cry. Other
relatives immediately came there. She was taken to the hospital and her
husband was informed. Had the appellant not participated in the commission
of the offence, she should have been the first person to raise a hue and cry
and call her other daughter-in-laws and neighbours. Immediately after the
occurrence, she was not found at her house. Both the accused were arrested
at a much later stage.
14. Much capital is sought to be made from the fact that Dr. Deepti who
took down her statement at the hospital, Ahmedabad has not been examined.
However, Dr. Nitin who treated her, has been examined and he also
supported the prosecution case in regard to the incident in question. Dr.
Nitin might not have taken down her statement but it is natural that he would
ask the deceased about the cause of her sustaining burn injuries.
15. The submission of Mr. Raichura that the ’degree of burn’ was not
disclosed by Dr. Ashish is, in our opinion, immaterial.
16. In ’The Order of Things’ by Mr. Barbara Ann Kipfer, classification in
regard to the burn injuries has been made as under:-
"first degree (affects epidermis; as from sunburn,
steam)
second degree (affects dermis; from scalding water,
holding hot metal)
third degree (full layer of skin destroyed; fire burn)"
17. In Taylor’s Principles and Practice of Medical Jurisprudence at page
250, it is stated that the classification of burns would depend upon the depth
of involvement of the tissues which are measured by the body surface
affected. In view of the admitted fact that kerosene was used for causing
injuries and having regard to the nature of the injuries, the injuries would be
of third degree as classified by Wilson.
18. A dying declaration need not be cease to be one only because death
took place 25 days after the incident. All attempts would be made to save a
precious life of a 25 year old young woman. The Doctors must have tried
their best. Dying declaration which is recorded in expectation of death, need
not be discarded only because death took place after a few days. What is
necessary for the said purpose inter alia is that the statement had been made
by a person who cannot be found or who is dead and thus incapable of
giving evidence. The statements of the deceased must be of relevant facts
vide Najjam Faraghi v State of W.B. [A.I.R 1998 SC 682], B. Shashikala v
State of Andhra Pradesh [AIR 2004 SC 1610], Uka Ram v State of
Rajasthan [AIR 2001 SC 1814], Smt. Paniben v State of Gujarat [AIR 1992
SC 1817] and Mohan Lal and Ors. v State of Haryana [2007 (3) SCALE
282]
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19. Strong reliance has been placed by Mr. Raichura on Ravikumar Alias
Kutti Ravi v State of T.N. [(2006) 9 SCC 240], wherein this Court opined;
"5. Section 32 of the Evidence Act, 1872 is an
exception to the general rule against hearsay. Sub-
section (1) of Section 32 makes the statement of the
deceased admissible which is generally described as
"dying declaration". The dying declaration essentially
means statements made by the person as to the cause of
his death or as to the circumstances of the transaction
resulting in his death. The admissibility of the dying
declaration is based upon the principle that the sense of
impending death produces in man’s mind the same
feeling as that of a conscientious and virtuous man
under oath. The dying declaration is admissible upon
consideration that the declarant has made it in
extremity, when the maker is at the point of death and
when every hope of this world is gone, when every
motive to the falsehood is silenced and the mind is
induced by the most powerful consideration to speak
the truth. Notwithstanding the same, care and caution
must be exercised in considering the weight to be given
to these species of evidence on account of the existence
of many circumstances which may affect their truth.
The court has always to be on guard to see that the
statement of the deceased was not the result of either
tutoring or prompting or a product of imagination. The
court has also to see and ensure that the deceased was
in a fit state of mind and had the opportunity to observe
and identify the assailant. Normally, therefore, the
court in order to satisfy itself that the deceased was in
fit mental condition to make the dying declaration, has
to look for the medical opinion. Once the court is
satisfied that the declaration was true and voluntary, it
undoubtedly, can base its conviction on the dying
declaration without any further corroboration. It cannot
be laid down as an absolute rule of law that the dying
declaration cannot form the sole basis of conviction
unless it is corroborated. The rule requiring
corroboration is merely the rule of prudence......."
This case satisfies the legal requirements as noticed therein.
20. For the reasons aforementioned, there is no merit in this appeal which
is dismissed accordingly.