BACHUBHAI VALJIBHAI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) . This Criminal Appeal under Sec. 374 of the Cr.P.C. is directed against the order of conviction and sentence passed against the appellant in Sessions Case No. 89 of 1988 on 12-3-1990 whereby the appellant herein, namely, Bachubhai Valjibhai was convicted under Sec. 3p2 of the I.P.C. and sentenced to life imprisonment by the Addl. Sessions Judge, Surendranagar.

(2.) The case of the prosecution is that the present-appellant Bachubhai Valjibhai married one Baluben about 10 years prior to the date of the incident GR. 189 i.e. 5-8-1988. No child was born out of this wedlock and while the couple was residing at village Ratanpar, Taluka Wadhwan, District Surendranagar on 5-8-1988 at about 10.30 P.M. to 11.00 P.M. when the appellant's mother and sister namely Ratanben and Paluben were not in the house and had gone to the appellant's other sister's house, and while the appellant's wife Baluben was asleep, the appellant poured kerosene upon her and set her ablaze and ran away. When Baluben raised an alarm Arvind Valjibhai i.e. brother of the appellant and some other persons reached the spot. Having noticed that Baluben was under fire, he was able to push his hand inside the room through the space between the two doors and opened the bolt and noticed that Baluben was under fire and crying and was rubbing her body with the mattress. Said Arvind Valjibhai and one Pravin took Baluben to the Government Hospital in the burnt condition. Dr. Parmar was on duty in the said Government Hospital. At that time Baluben was fully conscious and was able to speak. Dr. Parmar recorded the declaration of Baluben wherein she disclosed that about half an hour back her husband Bachubhai Valjibhai had poured kerosene over her and burnt her. At that time her clothes were giving smell of kerosene and only little portion of the cloth was left on her body as rest of the clothes had already burnt. Except the skin of the head and the bottom of her feet. the entire body had been burnt and thus she had suffered the burn upto 98%, but the burn injuries were not deep. She was admitted as an indoor patient in the Government Hospital of Surendranager and the Doctor informed the Police Station, Joravarnagar. Dt : 11-10-1999

(3.) Dr. Parmar recorded the declaration of Baluben as above and obtained her thumb impression thereon at 11.55 P. M. Dr. Parmar also put his signatures. This declaration Exh. 10 is also signed by Dr. G. P. Kotecha. This dying declaration Exh. 10, which is the first dying declaration in the point of time, shows that deceased Baluben had stated in clear terms that while she was asleep her husband Bachubhai Valjibhai poured kerosene over her and set her to fire. She has also stated that this had happened an hour before, that she was literate but was not able to sign (because of burns), and therefore, she was putting her thumb impression and the thumb impression of her right hand, as was put on this declaration, has been attested by Dr. Parmar and Dr. Kotecha as the Medical Officers of Mahatma Gandhi Government Hospital, Surendranagar. The deceased has also stated therein at the very beginning that she was making this declaration with full consciousness. The police reached the Hospital thereafter at about 12 O'clock ('0' hours) and the police persons were taken to the deceased by Dr. Parmar. The Head Constable of Joravarnagar Police Station also recorded the declaration of deceased Baluben in presence of Dr. Parmar vide Exh. 37, which bears the date of 6-8-1988. In this declaration she has stated that she was married about 10 years back and prior to last three months, she was living at her father's house out of annoyance and while being at Ahmedabad, she used to go on labour work with her father wherefrom she was brought at Ratanpar. She has also stated that on the date of the incident her father-in-law and mother- in-law had gone to her sister-in-law Ratan's house and she was sleeping in the house. Between 10.30 and 11.00 P.M. her husband Bachubhai Valjibhai poured kerosene on her and set her to fire by throwing a matchstick. She has stated that at that time there was no one else in the room (orda) where she was sleeping except her husband, that her mother-in-law Paluben and sister-in-law Ratan used to torture her off and on, they used to abuse her and were also not giving food. for the reason that she had no issues. She has also verified that whatever was recorded in this declaration had been correctly and truly recorded as given out by her. This statement also bears the thumb impression of the right hand of the deceased and the same is signed by Police Head Constable, Joravarnagar Police Station. Whereas Joravarnagar Police had informed the Executive Magistrate, he also came down to the Hospital to record the dying declaration of the deceased and according to the Executive Magistrate, he had gone to the Hospital to record the declaration of the deceased. Dr. Parmar had taken the Executive Magistrate to the deceased and he was told that the deceased was conscious. The Executive Magistrate also verified and recorded that deceased was conscious, and thereafter, recorded the dying declaration as given out by the deceased from 00.30 hours to 1.00 A.M. on 6-8-1999 (Exh. 17). The Executive Magistrate recorded this dying declaration in his own hand-writing and obtained the thumb impression of the deceased, after the same had been read over and admitted to be correct by the deceased. In this dying declaration she has stated that on the night of 5-8-1988 she was sleeping in her room (orda). She had no issues although she was marred 10 years earlier; because she had no issue her husband used to come drunk and beat her. On that day i.e. 5-8-1988 while she was asleep her husband Bachubhai Valjibhai between 10.30 to 11.00 P.M. poured kerosene on her and set her to fire by throwing a match- stick, that no one other than her husband could come to that orda and only her husband had done this, that her mother-in-law and sister-in-law used to torture her daily, would not give food and abuse her. She has referred to some of her gold and silver ornaments and had stated that they may be handed over to her father and mother. She has also requested for appropriate action against her husband and that 'my parents may not be harassed'. At the end of this dying declaration it was recorded by the Medical Officer Dr. Parmar as under