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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.