MUKESHBHAI GOPALBHAI BAROT Vs. STATE OF GUJARAT

JUDGEMENT

(1.) The appellant accused, a lawyer by profession, was residing in Kalol, District Mahesana whereas Kamlaben Ratilal Parmar, wile of Ratilal Hemabhai Paramar PW-7, deceased was residing along with her family at Mahesana and was serving as a Mid-wife at the Primary Health Centre in village Vamaj, Taluka Kadi, District Mahesana. Kamlaben had also been allotted a residential quarter in village Vamaj. The appellant was known to the family of the deceased as she had appointed him as an advocate to represent her in a departmental enquiry. On the 14th September 1993 the deceased, as per her routine, left for village Vamaj to attend to her duties. At about 11 a.m. she went to her residential quarter. The appellant also reached that place and taking advantage of the fact that she was alone, asked her to have intercourse with him saying that he would not disclose the facts to anyone, but in case she refused his advances, he would disclose her illicit relationships with several other persons to her husband. The deceased, however, did not succumb to the pressure, which annoyed the appellant and he pushed her onto a cot and tried to rape her. The deceased resisted the attempt but the appellant picked up some kerosene oil and threw it on her and set her on fire. The cries of agony of the deceased attracted several persons residing in the locality and fearing that his guilt would be exposed, the appellant himself doused the flames and removed the deceased (who was by then unconscious) in a jeep to the Kalol Civil Hospital where she was admitted at about 12.45 p.m. PW1 the Medical Officer, who was on duty at the relevant time, informed the Kalol City Police Station and the Officer In-charge in turn informed the Kadi Police Station. On receiving the information PSI Trivedi PW14 of Kadi Police Station went to the place of incident and made the necessary enquiries and prepared the Panchnama and also picked up several incriminating articles. In the meanwhile, as the condition of the victim had deteriorated, she was shifted to the Ahmedabad Civil Hospital and the Officer In-Charge of Kadi Police Station was also told about the transfer. Necessary arrangements were made for recording the dying declaration of the victim which came to be recorded on the same day i.e. on 14th September 1993 by the Executive Magistrate. A second statement was recorded by the police two days thereafter and in both these two dying declarations she stated that she had been burnt accidentally and nobody was responsible for her injuries. Kamlaben succumbed to her injuries on the 18th September 1993 and on 26th September 1993 the husband of the deceased, Ratilal Hemabhai Parmar PW7, gave a complaint in the police station alleging inter-alia that shortly before her death she had informed him that the appellant was responsible for her injuries and he had thrown kerosene on her and set on fire, on her refusal to accept his sexual advances. It is in this background that the appellant was arrested, and after investigation a charge-sheet was filed against him and he was ultimately brought to trial for offences punishable under Section 302 etc. of the IPC.

(2.) The Additional Sessions Judge, in the course of an elaborate judgment, held that there were three dying declarations made by the deceased; the first Ex.44 dated 14thSeptember 1993 recorded at 4 p.m. by the Executive Magistrate, a second Ex.48 by the police on the 16th of September 1993 and in both these statements she had completely exonerated the appellant whereas in the third dying declaration Ex.59 dated 17th September 1993 allegedly written by PW-7 her husband on her dictation she had made a complete departure from the earlier dying declarations and inculpated the appellant and as such there appeared to be great uncertainty in the veracity of the dying declarations. It also observed that the deceased had died on 18th September 1993 and it was on the basis of the dying declaration Ex.59 that a complaint had been registered in the police station on the 26th September 1993 which again was grossly delayed. The trial court also held that the reliance of the prosecution on Exs.22 and 31 admittedly in the handwriting of the accused and deceased respectively to indicate that there was something amiss and improper in the relationship of the appellant and the deceased was misplaced as the two appeared to share a close and healthy relationship, and were on the contrary indicative of the deep attachment and concern which a brother would have for a sister. The trial court then examined the evidence of PW18 Dr. Vijay, who had conducted the postmortem on the dead body and opined that this too did not support the prosecution version. The Court also observed that at the initial stage a charge under Section 302 of the IPC had been framed against the appellant but while the matter was yet pending, an application Ex.64 had been filed by the prosecution seeking an alteration of the charge from one under Section 302 to 306. The trial court thus opined that in this situation where the prosecution itself was not clear about the nature of the case, it appeared that the death was caused in a simple accident, as was apparent from the first two dying declarations. The trial court, accordingly, acquitted the appellant-accused. An appeal against acquittal was taken to the High Court. The High Court prefaced its judgment in the following terms:

(3.) Mr. E.C. Agrawala, the learned Counsel for the appellant has raised certain basic issues in this appeal. He has pointed out that the only material evidence against the appellant which had been relied upon by the High Court was the dying declaration Ex.59 and if the story projected therein was disbelieved, the appellant's conviction could not be sustained on the basis of the peripheral and circumstantial evidence. It has been pointed out that Exs.44 and 48 were two dying declarations, one to a Magistrate and a second to a police officer, in which the appellant had been completely exonerated of any wrong doing and these were admissible in evidence contrary to the findings of the High Court, whereas Ex.59 appeared to have been motivated on account of the fact that in the case of death of Scheduled Caste such as the deceased in some circumstances, an ex-gratia payment of Rs. 2 lacs was disbursable, and this amount had, indeed, been claimed and taken by the husband of the deceased, Ratilal PW-7. It has been pointed out that Exs.22 and 31 were, in fact, entirely in favour of the appellant and when read together showed the concern he had towards the deceased as he had often advised her to desist from her illicit affairs and had warned her that in case she did not do so, he would inform her husband. It has also been submitted that even if there was some evidence with regard to the smell of kerosene oil on the carpet on the floor it would in no way detract from the innocence of the appellant in the face of no other evidence, more particularly as the statements Exs.44 and 48 were to be read as dying declarations. Mr. Ninad Laud, the learned Counsel for the respondent State of Gujarat has, however, submitted that the medical evidence clearly supported the prosecution story that the deceased had been burnt after kerosene oil had been sprinkled on her and corroboration with regard to the involvement of the appellant was available in the evidence of PW9 Vithalbhai and PW10 Wankar Devendrabhai. He has also submitted that the presence of the appellant at the time when the first two dying declarations had been recorded clearly showed that the deceased had been pressurized to make them and as such they could not be believed.