KOLI CHUNILAL SAVJI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) These two appeals arise out of Judgment dated 21/24-6-1996 of the High Court of Gujarat at Ahmedabad in Criminal Appeal Nos. 236 and 105 of 1989 and are being disposed of by this common Jugment. The two appellants were tried for having committed an offence under Section 302/34, IPC on the allegation that on 28-6-84 at 4 A.M., while deceased Dhanuben was sleeping on her bed, the two accused persons namely her husband and mother-in-law poured kerosene and set fire with match box. Along with the deceased, her son Ajay was also there and both, the deceased and Ajay were burnt. They were taken to the hospital for treatment. In the hospital, Police recorded the statement of Dhanuben which was treated as F.I.R. and then after registering the case, investigation started. In the hospital, both Dhanuben and her son Ajay died and as such the accused persons stood charged for offence under Sections 498 A and 302/34 of the IPC. Apart from the statement by deceased Dhanuben to P.W. 14, which was treated as F.I.R., a Magistrate also recorded her statement which was treated as a dying declaration. On scrutiny of the prosecution evidence, the learned Sessions Judge did not rely upon the dying declaration made by the deceased Dhanuben and in the absence of any other evidence to connect the accused appellants with the murder of the deceased, acquitted them of the charge under Section 302/34, IPC. The learned Sessions Judge however came to the conclusion that the offence under Section 498A has been established beyond reasonable doubt and as such convicted them under the said Section and sentenced them to rigorous imprisonment for two years and imposed a penalty of Rs. 250/-, in default, further imprisonment for two months. The State of Gujarat preferred an appeal against the acquittal of the accused persons of the charge under Section 302/34, IPC and the accused persons preferred against their conviction under Section 498A. The High Court by the impuged Judgment set aside the order of acquittal, relying upon the two dying declarations Exh. 45 and Exh. 41 and convicted the appellants of the charge under S. 302/34, IPC and State's appeal was allowed. The appeal filed by the accused persons, assailing their conviction under Section 498A however stood dismissed and the conviction under Section 498A and the sentence passed thereunder was maintained. It may be stated that while admitting the appeal of the accused persons against their conviction under Section 498A, the High Court had suo motu issued notice as to why the sentence imposed for the offence punishable under Section 498A should not be enhanced. But while disposing of the criminal appeals, the High Court did not think it proper to enhance the sentence and accordingly notice of enhancement stood discharged.

(2.) On the basis of the post-mortem report conducted on the dead bodies of Dhanuben and her son Ajay and the evidence of doctor PW 9, who conducted the autopsy over the dead bodies, the conclusion is irresistible that both the persons died on account of burn injuries but the defence however raised a contention that the two persons died on account of suicide and the house was set fire by the deceased herself. The prosecution witnesses to whom deceased had made oral dying declaration, implicating the accused persons, did not support the prosecution during trial and, therefore, with the permission of the Court the Public Prosecutor cross-examined them. The High Court accordingly, placed no reliance on their testimony. The High Court however examined the two dying declarations namely Exh. 45, recorded by the Sub-Inspector PW 14 and the dying declaration Exh. 41, recorded by the Magistrate PW 12 and came to the conclusion that both these dying declarations are truthful and voluntarily made and, therefore, can safely form the basis of conviction of the accused persons under Section 302/34, IPC. With the aforesaid conclusion the order of acquittal passed by the learned Sessions Judge of the charge under Section 302/34 was set aside and the accused appellants were convicted of the said charge and were sentenced to imprisonment for life. The High Court also relying upon the dying declaration and other materials, further came to the conclusion that the prosecution case, so far as the charge under Section 498A, IPC is concerned, has been proved beyond reasonable doubt and, therefore, upheld the conviction and sentence passed thereunder by the learned Sessions Judge.

(3.) Mr. Keshwani, the learned counsel appearing for the appellants argued with vehemence that the two dying declarations cannot be relied upon inasmuch as the doctor was not present while the dying declaration was recorded by the Magistrate and further, there is no endorsement by the doctor, indicating the mental condition of the deceased to the effect that she was in a fit condition to make the statement. The learned counsel also further urged that the doctor himself has not been examined in this case which makes the position worse. Mr. Keshwani also made a submission that the deceased was surrounded by her own relations before the dying declaration was recorded by the Magistrate and as such has sufficient opportunity to be tutored and consequently the dying declaration recorded by the Magistrate becomes vitiated. Mr. Keshwani also submitted that the incident having taken place at 4 A.M. and the dying declaration having been recorded by the Magistrate at 9 A.M. five hours after the occurrence, there has been gross delay which makes the dying declaration doubtful and as such should not have been accepted. Mr. Keshwani lastly submitted that the learned Sessions Judge having recorded an order of acquittal, the same should not have been interfered with by the High Court without justifiable reasons and on this score also the conviction of the appellants under Section 302/34, IPC cannot be sustained.