JAYANTIBHAI JAVABHAI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) Instant appeal filed under Section 374(2) of the Code of Criminal Procedure, 1973 is directed against judgment dated August 27, 1996, rendered by the learned Additional Sessions Judge, Ahmedabad city, in Sessions Case No.96 of 1995, by which the appellant is convicted of the offences punishable under Sections 302, 307 as well as Section 304 of the Indian Penal Code and sentenced to suffer R.I. for life and fine of Rs.2000/-, in default, R.I. for six months for commission of offence punishable under Section 302 I.P.C. and R.I. for five years for commission of offence punishable under Section 307 I.P.C. as well as R.I. for seven years for commission of offence punishable under Section 304 I.P.C. It may be stated that the learned Additional Sessions Judge has directed that substantive sentences imposed on the appellant shall run concurrently.

(2.) Shantaben Hirabhai, who is complainant in the case, is resident of village Shihi, Taluka : Sidhpur, District:Mehsana. Name of her husband was Hirabhai Govabhai. The record shows that Hirabhai Govabhai expired before the incident. During the subsistence of her marriage with deceased Hirabhai, Shantaben had given birth to four children, out of whom two were sons and two were daughters. Name of the eldest daughter was Dinaben, who was married to the appellant 20 years before the date of the incident which is December 8, 1994. During the subsistence of her marriage with the appellant, Dinaben had given birth to five children, out of whom two were sons and three were daughters. Name of one of her sons is Vinod, whereas name of the other is Naresh. Dinaben was staying with the appellant at Jay-Chamunda Chawl, Ramapir Tekra, Nava Vadaj, Naranpura, Ahmedabad. The appellant, at the time of the incident, was doing business of selling fruits at Manek Chowk. It may be stated that second daughter of Shantaben i.e. Dahiben was given in marriage to Somabhai Khemabhai of village Hansapur, Taluka : Patan, District : Mehsana. Ten days prior to the date of incident, Dahiben and her husband Somabhai had come to the house of Shantaben situated in village Shihi because Somabhai was ill. During the stay of Dahiben with her husband at the house of her mother, it was learnt that Ramjibhai, brother of Shantaben Hirabhai, residing at Ahmedabad, was also ill. Therefore, on the day prior to the date of incident, Shantaben, in the company of her daughter Dahiben and her son-in-law Somabhai, had come to Ahmedabad to inquire about the health of her brother Ramjibhai. During the night time all the three had stayed at the house of Ramjibhai. At about 4.00 P.M. on the day of incident, Shantaben, in the company of her daughter Dahiben and son-in-law Somabhai, had gone to the house of Dinaben, who was staying in Jay-Chamunda Chawl, Ramapir Tekra, Nava Vadaj, Ahmedabad. At that time, Dinaben and her children were present in the house, but the appellant was not present, as he had gone out of house for the purpose of doing business. Dinaben had prepared dinner for all and all were waiting for the appellant to return home after doing business. At about 9.00 P.M. Dinaben was sitting on the floor near the place of cooking and just near her, Dahiben i.e. her sister was also sitting; whereas Somabhai was chit-chatting with Vinod i.e. son of the appellant, on the cot lying in the room and Shantaben was sitting outside the room in the osari. The evidence on record shows that the appellant had bad habit of consuming liquor and was not giving any amount to his wife Dinaben to enable her to meet household expenses. The appellant had come to his house at about 9.00 P.M. and ignoring the presence of his mother-in-law, sister-in-law and brother-in-law, had started abusing his wife Dinaben in filthiest language. Dinaben had tried to pacify the appellant and requested him to behave nicely, as her mother, her sister and her brother-in-law were present in the house. However, the appellant, who had consumed liquor, was in no mood to listen to the entreaties of his wife Dinaben. After sometime, the appellant had demanded tea. Therefore, Dinaben had lighted a stove which was operating through wicks. Before she could place utensil on stove for preparing tea, the appellant, who was in an inebriated state, picked up a Can filled with kerosene and poured kerosene over Dinaben as well as Dahiben, who was sitting on the floor quite near Dinaben. The appellant thereafter kicked the lighted stove, as a result of which polyester Sari, which was put on by the deceased, caught fire. The deceased was engulfed in fire within no time. Dahiben, who was sitting quite near the deceased on the floor, also sustained serious burn injuries. Somabhai i.e. husband of Dahiben, and Vinod, son of the deceased, who were sitting on the cot, had made an attempt to extinguish the fire and in that process, Vinod had received serious burn injuries. Immediately thereafter, the appellant had gone away from his house after bolting the door of the house from outside. The fire had spread in the room rapidly endangering lives of those who were in the room and, therefore, shouts for help were raised by all. One Jashvantrai Ishwarbhai Shrimali, who was residing in the house adjoining to that of the appellant, had immediately come to the rescue of deceased Dinaben and poured water on her from an earthen-pot, but as fire had engulfed the whole room, Jashvantrai had also received serious burn injuries on his chest etc. Meanwhile, several persons of the locality had collected near the place of incident and put out the fire. Bhikhabhai Maganbhai Shrimali, uncle of Jashvantrai Ishwarbhai, had called Ambulance on telephone. Because of the message sent by Bhikhabhai, two vehicles were sent at the place of incident and those who had received burn injuries, were removed to V.S.Hospital for treatment. At the V.S.Hospital, Dr.Niranjan Gupta, who was C.M.O. of the Hospital, had treated the injured. Dr.Gupta had informed Vishnuprasad M.Pandya, who was then Head Constable on duty at V.S.Hospital, that five persons, namely, (i) Somabhai Khemabhai, (ii) Jashvantrai Ishwarbhai, (iii) Vinod Jayantilal, (iv) Dinaben Jayantilal, and (v) Dahiben Somabhai, had received burn injuries because of the act of Jayantibhai Javabhai i.e. the appellant in setting on fire his hut, and were admitted in the hospital for treatment. The Head Constable had noted down the information conveyed to him by Dr.Gupta in Vardhi-book and informed P.S.O. of Naranpura Police Station accordingly. P.S.O. of Naranpura Police Station had handed over extract of Vardhi to Mr.K.C.Patel, who was then P.S.I. of the Police Station. Thereupon, Mr.K.C.Patel had gone to V.S.Hospital and recorded first information report as narrated by Shantaben. He had prepared a yadi to be sent to the Executive Magistrate requesting him to record dying declarations of the injured and obtained an endorsement on yadi itself from the Doctor to the effect that injured were conscious. The said yadi was thereafter despatched to Executive Magistrate. On receipt of Yadi, Mr.Jagdishbhai S.Parmar, who was then Executive Magistrate, had come to the hospital for recording dying declarations of the injured. It was found by Mr.Parmar that Dinaben had sustained serious injuries and was rendered unconscious. Therefore, her dying declaration was not recorded. However, dying declarations of Jashvantrai and Vinodbhai Jayantilal were recorded. Mr.G.H.Patel, who was then P.I. of Naranpura Police Station, had taken over investigation of the case from P.S.I. Mr.K.C.Patel. He had drawn panchnama of place of incident and visited the hospital. P.I. Mr.G.H.Patel had recorded police statements of Jashvantrai and Vinod. During the course of treatment, Dinaben succumbed to her injuries on December 9, 1994; whereas injured Jashvantrai and injured Vinod succumbed to their injuries on December 14, 1994. P.I.Mr.Patel had made necessary arrangements for sending three dead bodies for postmortem examination. During the course of investigation, the appellant was arrested on December 13, 1994. The investigating officer had also recorded statements of those persons who were found to be conversant with the facts of the case. The incriminating articles such as clothes of the deceased, clothes of the injured, clothes of the appellant etc. seized during the course of investigation were sent to Forensic Science Laboratory ["F.S.L" for short] for analysis. On completion of investigation, the appellant was chargesheeted in the Court of learned Metropolitan Magistrate, Ahmedabad of the offences punishable under Sections 302 & 307 of the Indian Penal Code. As the offences punishable under Section 302 & 307 I.P.C. are exclusively triable by a Court of Sessions, the case against the appellant was committed to City Sessions Court, Ahmedabad for trial, where it was numbered as Sessions Case No.96 of 1995.

(3.) The learned Additional Sessions Judge, Ahmedabad city to whom the case was made over for trial, had framed charge against the appellant at Exh.2 of the offences punishable under Sections 302 & 307 I.P.C. The charge was read over and explained to the appellant, who had pleaded not guilty to the same and claimed to be tried. The prosecution had, therefore, examined (1) Dr.Dilip Manubhai Desai as PW.1 at Exh.6, (2) Jagdish Sunderlal Parmar as PW.2 at Exh.14, (3) Bipinchandra Jethalal Chauhan as PW.3 at Exh.18, (4) Shantaben Hirabhai Govabhai as PW.4 at Exh.20, (5) Somabhai Khemabhai as PW.5 at Exh.22, (6) Madhusudan Manilal as PW.6 at Exh.23, (7) Dahiben Somabhai as PW.7 at Exh.28, (8) Vishnuprasad Manilal Pandya as PW.8 at Exh.29, (9) Bhikhabhai Maganbhai Shrimali as PW.9 at Exh.31, (10) Kiritbhai Chhotalal Patel as PW.10 at Exh.32, (11) Dr.Jayesh Vaghjibhai Limbachiya as PW.11 at Exh.36, (12) Govindbhai Hirabhai Patel as PW.12 at Exh.42, and (13) Kiritbhai Amthabhai Shrimali as PW.13 at Exh.54, to prove its case against the appellant. The prosecution had also produced documentary evidence such as postmortem notes of deceased Jashvantrai Ishwarbhai at Exh.7, postmortem notes of deceased Dinaben Jayantilal at Exh.8, postmortem notes of Vinod Jayantilal at Exh.9, dying declaration of Jashvantrai at Exh.15, yadi received by Executive Magistrate for recording dying declarations of the injured at Exh.16, dying declaration of deceased Vinod Jayantilal Parmar at Exh.17, panchnama of place of occurrence at Exh.19, First Information Report lodged by Shantaben at Exh.21, arrest panchnama of the appellant at Exh.24, inquest panchnama relating to deceased Jashvantrai at Exh.25, inquest panchnama of Dinaben at Exh.26, inquest panchnama of Vinod at Exh.27, Vardhi sent by police constable Vishnuprasad to P.S.O. of Naranpura Police Station at Exh.30, intimation given to competent officer to make report under Section 157 of the Code at Exh.33, injury certificate of witness Somabhai Khemabhai at Exh.37, certificate indicating injuries sustained by witness Dahiben at Exh.38, medical case papers of deceased Dinaben at Exh.39, medical case papers of deceased Jashvantrai at Exh.40, medical case papers of deceased Vinod at Exh.41, statement of Jashvantrai Shrimali recorded by P.I. Mr.Patel at Exh.43, statement of deceased Vinod Jayantilal recorded by P.I. Mr.Patel at Exh.44, map of place of incident at Exh.45, report of analysis forwarded by F.S.L. at Exh.47, entry made in the diary maintained at the police station pursuant to the information given by Head Constable Vishnuprasad at Exh.49, panchnama of seizure of clothes of the injured and the deceased at Exh.55 etc. in support of its case against the appellant.