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PETITIONER: KUMBHAR DHIRAJLAL MOHANLAL

       Vs.

RESPONDENT: STATE OF GUJARAT

DATE OF JUDGMENT:       04/10/1996

BENCH: M.K. MUKHERJEE, S.P. KURDUKAR

ACT:

HEADNOTE:

JUDGMENT:                      J U D G E M E N T M.K.MUKHERJEE. J.      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

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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

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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

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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

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are preverse. We therefore uphold the judgment of the High Court and dismiss this appeal.