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PETITIONER: BHAGUBHAI MANILAL AND OTHERS

       Vs.

RESPONDENT: STATE OF GUJARAT

DATE OF JUDGMENT:       31/07/1996

BENCH: FAIZAN UDDIN (J) BENCH: FAIZAN UDDIN (J) MAJMUDAR S.B. (J)

CITATION:  JT 1996 (7)    74        1996 SCALE  (5)544

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T Faizan Uddin,j. 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,

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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,

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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

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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.