BHAYANI LUHANA RADHABAI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) Mukta, a young woman of about 23 years of age, met with a gruesome and macabre death in the ancient holy town of Dwarka situate in Jamnagar District of the State of Gujarat. She died of injuries caused by first and second degree burns received by her a little after midnight between 9th and 10/04/1970. The incident resulting in her receiving the fatal burn injuries took place in the house of her husband. The house consisted of a fali, that is, an open space, to which access couldbe obtained from the road through a gate and a structure on each side of the fali. The structure on the western side of fali consisted of a ground floor and an upper floor which were used as living quarters by the family, while the structure on the eastern side of the fali comprised an osri and to the east of it, a room. There were admittedly no electric lights in the osri and the room on the east but the structure on the western side had electric connection and there were lights in it. The family living in this house consisted of Mukta, her husband Girdharlal, also known as Ganpat, her mother-in-law Radhabai and her husband's younger brother Kanubhai. All the three members of the family, namely, Girdharlal, Radhabai and Kanubhai were indicted before the Sessions Judge, Jamnagar for intentionally causing the death of Mukta in furtherance of their common intention. The prosecution case against the accused was as follows.

(2.) During the night between 9th and 10/04/1970, at about 12 in the mid-night, when Mukta was preparing to go to bed after the day's work, Radhabai asked her to carry three bags of onions which were lying in the osri on the ground floor to the first floor. Mukta stated that she was very tired and she would carry the bags of onions to the first floor next morning. This, according to the prosecution, enraged Radhabai and she gave two or three slaps to Mukta. About this time Girdharlal and Kanubhai, who had gone to see a film in the last show, also returned and they were present at the time of this incident. This incident took place in the fali and was seen by one Shantilal, a neighbour, who had his house to the north of the house of Girdharlal with only one house of Karsan Natha in between. Radhabai, not content with slapping Mukta, dragged her inside the osri with the assistance of Girdharlal and from the osri into the room and then poured kerosene on her and set fire to her clothes by lighting a match-stick. Mukta shouted that she was being burnt by pouring kerosene oil. Shantilal, who at that time was on the terrace of his house, saw the incident happening in the fali of Girdharlal upto the stage when Mukta was dragged inside the osri, but thereafter he could not see what was happening. He heard the shouts of Mukta and noticed a fire and also some smoke coming out from the roof. Suspecting that Mukta was being burnt by Girdharlal, Shantilal rushed down shouting to Girdharlal not to set fire to his wife and came down in the lane. It appears that about this time several other persons also came there and they all gathered in front of the gate of Girdharlal's house. One gentleman by the name of Nandi Sheth was also there and they all asked Girdharlal to open the door. Girdharlal, after some time, came to the window of the first floor of the western part of the house and asked the persons who had collected there to disperse saying that nothing had happened in the house. The crowd, however, broke open the door and went into the house led by Nandi Sheth and Shantilal. Nandi Sheth asked Girdharlal as to where Mukta was and Girdharlal replied that she was in the room. Nandi Sheth thereupon obtained a torch and went inside the room and saw there Mukta lying with extensive burns on her face, arms and legs covered with a sari. In the meantime an ambulance was sent for and as soon as the ambulance arrived, Mukta was placed in the ambulance and Nandi Sheth took her to the Dwarka Hospital. It appears that while Nandi Sheth took Muktato the Dwarka Hospital, Shantilal proceeded to Dwarka Police Station and gave information to Head Constable Bhikubha that a woman had received burns. When Nandi Sheth reached the hospital with Mukta, he found that the Medical Officer was not available and he, therefore, contacted Nurse Rekhaben, but Rekhaben expressed her inability to admit Mukta in the hospital in the absence of the Medical Officer. Nandi Sheth thereupon decided to take Mukta to Mithapur Hospital and asked the driver of the ambulance to proceed there, but the driver insisted on the charge of Rs. 30. 00 being paid in advance. Unfortunately, none of the persons in the ambulance had a sum of Rs. 30. 00 with him and the ambulance had, therefore, to be taken back to Bhathan Chowk near the house of Girdharlal and there Nandi Sheth collected Rs. 30. 00 from one Jiva. In the meantime, it appears that Nandi Sheth was informed by the Police Constable accompanying them in the ambulance that Radhabai was trying to tutor Mukta to say that she had got burnt while lighting the primus stove and not to disclose the truth. Nandi Sheth thereupon asked Radhabai to get down from the ambulance and instead, one Shantaben wife of Vallabhdas accompanied Mukta in the ambulance. Whilst they were proceeding to Mithapur Hospital, Nandi Sheth asked Mukta as to what had happened, to which Mukta replied stating that "the inmates of her house had set her aflame". On reaching Mithapur Hospital, Mukta was admitted as an indoor patient and Dr. Karani started giving her treatment. Dr. Karani also interrogated Mukta and he too was informed by her that "her husband, her mother-inlaw and her brother-in-law had poured kerosene on her and had set fire on her". Soon thereafter, possibly on receipt of information from the hospital, one Mulubha Head Constable Incharge of Mithapur Outpost, arrived at the Hospital and he recorded the dying declaration of Mukta Ex. 30 at 2.30 a. m. in the morning in the presence of Dr. Karani and Nandi Sheth. This dying declaration was sent by Mulubha to Dwarka Police Station and on the strength of it, an offence was registered by P. S. I. Borse and he commenced investigation. Pursuant to a yadi sent by the Police to the Taluka Magistrate for recording the dying declaration of Mukta, Ujhamlal Soni Mamlatdar and Taluka Magistrate of Dwarka came to the Hospital and recorded the dying declaration of Mukta Ex. II at 8.15 a. m. in the presence of Dr. Karani and Nandi Sheth. This dying declaration was in the form of question and answer. Thereafter, according to the prosecution, another dying declaration was made by Mukta to her brother on the same day, that is, 10/04/1970 and this was followed by a detailed statement of Mukta taken down by P. S. I. Borse sometime in the afternoon. This statement was not produced in evidence by the prosecution, since, according to the prosecution, it was a statement made by Mukta in the course of investigation and was hit by S. 162. of the Code of Criminal Procedure but the appellant insisted on bringing it on record as a dying declaration of Mukta and it was accordingly marked Ex. 45. Mukta finally succumbed to her injuries on 11/04/1970. On these facts, the appellants were tried before the learned Sessions Judge for the offence under S. 304 read with S. 34 of the Indian Penal Code.

(3.) The prosecution case against the accused rested principally onthe evidence of Shantilal, Karsan Natha and Nandi Sheth and the various dying declarations made by Mukta before different persons at different times. The learned Sessions Judge did not accept the evidence of Shantilal Karsan Natha and Nandi Sheth and so far as the dying declarations were concerned, he thought 'that they were discrepant, one from the other and did not inspire any confidence. He agreed with the prosecution that this was not a case of suicidal death and he was also inclined to rule out the possibility of accidental death, but, in the absence of evidence which he could regard as satisfactory, he found it difficult to come to the conclusion that the accused were responsible for causing the death of Mukta and in this view, he acquitted the accused.