Gujarat High Court

Chhaganbhai Limjibhai Palas vs State Of on 20 November, 2013

In the aforesaid decision this Court while referring to the decision of the ConstitutionBench in
Laxman case reiterated that there is no requirement of law that the dyingdeclaration must necessarily
contain a certification by the doctor that the patient was in a fit state of mind specially when
the dying declaration was recorded by a Magistrate. It was also held in the said decision that it is the
testimony of the Magistrate that the declarant was fit to make statement gains the importance and
reliance can be placed upon declaration even in the absence of the doctor's certificate provided the court
ultimately holds the same to be voluntary and truthful.
CHHAGANBHAI
LIMJIBHAI
GUJARAT....Opponent(s)/Respondent(s)

PALAS....Appellant(s)V/SSTATE

R/CR.A/806/2011
JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL APPEAL NO. 806 of 2011
With
CRIMINAL APPEAL NO. 1623of 2010
FOR
APPROVAL AND SIGNATURE:
HONOURABLE
MR.JUSTICE KS JHAVERI
and
HONOURABLE
MR.JUSTICE K.J.THAKER

CHHAGANBHAI LIMJIBHAI
PALAS....Appellant(s)
Versus
STATE OF
GUJARAT....Opponent(s)/Respondent(s)
================================================================
Appearance
In Criminal Appeal No. 806 of 2011:
MR
MADANSINGH O BAROD, ADVOCATE for the Appellant(s) No. 1
MS
CM SHAH, ADDL PUBLIC PROSECUTOR for the Opponent/Respondent.

OF

Appearance
In Criminal Appeal No. 1623 of 2010:
MR
PRATIK BAROT, ADVOCATE for the Appellant(s) No. 1
MS
CM SHAH, ADDL PUBLIC PROSECUTOR for the Opponent/Respondent.
================================================================
CORAM:
HONOURABLE
MR.JUSTICE KS JHAVERI
and
HONOURABLE
MR.JUSTICE K.J.THAKER
Date : 20/11/2013
ORAL JUDGMENT
(PER : HONOURABLE MR.JUSTICE K.J.THAKER)
1. The appellants original accused were convicted of the offence punishable under section 302 and 114 of
Indian Penal Code by impugned judgement and order dated 27.08.2010 in Sessions Case No. 148 of 2009
by the Third Additional Sessions Judge, Panchmahal, Godhra. The appellants were inter alia sentenced to
undergo imprisonment for life and fine of Rs. 1000/- in default rigorous imprisonment for one month for
offence punishable under section 302 of Indian Penal Code whereas no separate sentence was awarded
under section 114 of Indian Penal Code.
2. It is required to be noted that this Court on 18.10.2013 had passed the following order:
These appeals arise out of a common judgment dated 27.08.2010 passed by the learned Additional
Sessions Judge, Panchmahal at Godhra in Sessions Case No.148 of 2009.
While taking up for hearing all these appeals, we notice that appellant of Criminal Appeal No.1623 of 2010
original accused No.2 Pankaj Chhaganbhai Palas was stated to be about 19 years of age at the time of
incident. When looked more closely, we realize that no verification of his age as on the date of incident
appeared to have been undertaken during the course of the trial. We were not sure whether he was above
18 years of age and, therefore, liable to be prosecuted before a Court of law. If he was below 18 years of
age, he would have to be treated as juvenile under the provision of the Juvenile Justice (Care & Protection
of Children) Act, 2000. We also notice that deceased Ramilaben who happened to be mother of accused
No.2 had in her complaint at Ex.49 stated that her son Pankaj was aged about 10 years. This by itself may
not be conclusive of the age of the accused. In our opinion, this issue requires proper examination.
Under the circumstances, we had requested learned Additional Public Prosecutor to record the statement
of the convict whether he had been admitted in any school and if so which one. She pointed out that

accused Pankaj himself has jumped parole and is currently absconding. However, his father Chhaganbhai
Limjibhai Palas, accused No.1 is presently in Vadodara Central Jail and as per his statement dated
17.10.2013 his son Pankaj had studied upto 7th Standard in one Devpura Primary School, Ranuja, District
: Jamnagar. Learned Additional Public Prosecutor is requested to obtain, through police agency, certified
copies of the school records of Pankaj Chhaganbhai Palas particularly indicating his date of birth and
record the statement of responsible officer of the school including on the question on the basis of which
information, if available on record, such date of birth was mentioned in the school record. It shall be done
by the next date of hearing.
S.O to 20th November 2013.
A copy of this order be made available to the learned Additional Public Prosecutor Ms.H. B. Punani.
3. However, it appears that the aforesaid observation regarding the age of accused no. 2 has not been
taken very seriously by the accused as no such contention was raised before the learned trial judge nor is it
now pursued and therefore the same is given up. Accused no. 2 Pankaj Chhaganbhai Palas is absconding
as per the jail report produced before this Court and as per the settled provisions of law, we have taken up
these appeals for final disposal at the behest of the learned advocates for the appellants.
4. Accused no. 1 is the first husband of the deceased and accused no. 2 is the son of accused no. 1. As per
the prosecution case, on 05.06.2009, at around 03.00 am while the deceased was sleeping on a cot
outside her house along with her three year old daughter, she felt something cool poured on her. When
she woke up, she saw that accused persons were present there and they had poured petrol on her. It is the
prosecution case that accused no. 1 immediately lighted a matchstick and set her ablaze. The deceased
started shouting and therefore her husband who was asleep nearby woke up and immediately poured
water on her. Thereafter the deceased was taken to hospital where she succumbed to the injuries during
the course of treatment.
4.1 The appellants were apprehended and after investigation charge sheet was submitted. The case was
committed to the Court of Sessions. To sustain its case, the prosecution relied upon the following
witnesses whose evidences were read before us:
P.W.
1 Anil Ratansinh Makwana Ex. 07 P.W.
2 Tersingbhai Dindor Ex. 12 P.W.
3 Babubhai Sangada Ex. 14 P.W.
4 Bharatbhai Sangada Ex. 16 P.W.
5 Kanubhai Manjibhai Ex. 26 P.W.
6 Dariyaben Shankarbhai Ex. 27 P.W.
7 Pravinbhai Shankarbhai Ex. 30 P.W.
8 Lalitaben Dindor Ex. 32 P.W.
9 Nanubhai Rana Ex. 35 P.W.
10 Arjunsinh Khant Ex. 39 P.W.

11 Mehulkumar Kikani Ex. 41 P.W.

12 Lakhabhai Ravjibhai Ex. 48 4.2 The prosecution also relied upon the following documents which were
perused by us during the course of hearing:
P.M.
Note

Ex. 08

Cause
of death certificate

Ex. 09

Inquest
panchnama

Ex. 11

Panchnama
of scene of offence
Panchnama
of seizure of muddamal Ex. 15
Muddamal
slips
Dying
declaration
Yadi
for recording D.D
Janvajog
entry no. 24/09
Index
Primary
report by FSL
Yadi
for sending muddamal to FSL

Ex. 13

Ex. 17

24

Ex. 36
Ex. 37
Ex. 40
Ex.
Ex. 43
Ex. 44

Muddamal
dispatch note

Ex. 45

Receipt
of muddamal by FSL

Ex. 46

FSL
letter and report

Ex. 47

Original
Complaint

Ex. 49
Death

panchnama
4.3

Ex. 50

At

the end of the trial and after recording the statement of the accused under section 313 of Cr.P.C., and
hearing arguments on behalf of prosecution and the defence, the learned Sessions Judge convicted the
appellants as mentioned aforesaid. Being aggrieved by and dissatisfied with the aforesaid judgement and
order passed by the Sessions Court the appellants have preferred the present appeals.
5. Mr Madansingh Barod and Mr. Pratik Barot for the appellants submitted that the prosecution has failed
to prove the case against the appellants beyond reasonable doubt. They submitted that there are serious

discrepancies in the evidence of witnesses and therefore the appellants deserve to be granted benefit of
doubt.
5.1 Learned advocates submitted that the alleged offence occurred on 05.06.2009 whereas the deceased
had expired on after about 28 days of the alleged incident. It is submitted that in fact the deceased had
died due to septicemia and considering the burns sustained by the deceased, it cannot be said that the
burns proved to be fatal to the deceased. It is submitted that therefore the appellants deserve to be
acquitted of the offence charged against them.
5.2 It is further submitted on behalf of the appellants that the trial court has erred in not appreciating that
the prosecution failed to prove that there was no independent witness and that nobody had seen the
appellant pouring petrol or setting the deceased ablaze or for that matter proved the motive for the alleged
offence.
5.3 Mr.
Barod and Mr. Barot jointly submitted that if the first part of the arguments is not accepted by this Court,
in the alternative, without prejudice to the submissions made hereinabove, considering the medical
evidence and the fact that the deceased had survived for around 28 days after the incident, the Court may
consider the case of the appellants under section 304 (Part I) of Indian Penal Code.
5.4 In support of his submissions, learned advocates have relied upon the decisions of the Apex Court in
the case of B.N. Kavatakar and Another vs. State of Karnataka reported in 1994 Supp (1) SCC 304 and in
the case of Maniben vs. State of Gujarat reported in (2009) 8 SCC 796.
6. Ms.
CM Shah, learned APP appearing for the respondent State has supported the order of the trial court and
has submitted that the trial court has gone into the evidence in detail and has come to the conclusion that
the appellants are guilty of the offence so convicted of. She has submitted that considering the barbaric act
committed by the appellants, the trial court has rightly convicted the appellants. She also submitted that
the sentence imposed upon the appellants is just and proper and does not deserve to be reduced or
quashed.
6.1 Ms.
Shah submitted that going by the contents in the dying declaration and the complaint, it is amply clear
that the accused-appellants are guilty of the offence charged against them. She further submitted that the
dying declaration recorded by the Executive Magistrate is in accordance with law and in fact does not
need any corroboration. She has relied upon a decision of the Apex Court in the case of Krishan vs. State
of Haryana reported in (2013) 3 SCC 280. She submitted that the prosecution witnesses have supported
the case of the prosecution.
7. We have heard learned advocates appearing for both the sides and have also gone through the materials
placed on record. At the outset it shall be relevant to note that the present case rests on circumstantial
evidence and it has been consistently laid down by this Court that where a case rests squarely on
circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and
circumstances are found to be incompatible with the innocence of the accused or the guilt of any other
person.
8. In the present case there are dying declarations in the form of complaint before the police Ex. 49 and
the dying declaration recorded by the Executive Magistrate Ex. 36.

8.1 As far as the dying declaration Ex. 36 is concerned, the same was recorded by an Executive Magistrate.
In the dying declaration, the role of the accused persons is mentioned. The deceased has stated in the
dying declaration that she was set on fire by the accused persons while she was sleeping on a cot outside
her house at around 03.00 am. She has narrated that her present husband thereafter poured water on her
and took her to hospital for treatment.
8.2 In the case of Gopal vs. State of Madhya Pradesh reported in (2009) 12 SCC 600, the Apex Court in
para 13 has observed as under:
13. Law relating to appreciation of evidence in the form of more than one dying declaration is well settled.
Accordingly, it is not the plurality of the dying declarations but the reliability thereof that adds weight to
the prosecution case. If a dying declaration is found to be voluntary, reliable and made in fit mental
condition, it can be relied upon without any corroboration. The statement should be consistent
throughout. If the deceased had several opportunities of making such dying declarations, that is to say, if
there is more than one dying declaration they should be consistent. However, if some inconsistencies are
noticed between one dying declaration and the other, the court has to examine the nature of the
inconsistencies, namely, whether they are material or not. While scrutinising the contents of various dying
declarations, in such a situation, the court has to examine the same in the light of the various surrounding
facts and circumstances.
8.3 In the case of Shudhakar vs. State of Madhya Pradesh reported in (2012) 7 SCC 569, the Apex Court
has held that a dying declaration is the last statement made by a person at a stage when he is in serious
apprehension of his death and expects no chances of his survival. At such time, it is expected that a person
will speak the truth and only the truth and that normally in such situations, courts attach intrinsic value of
truthfulness to such statement. It is also held that once such statement has been made voluntarily, it is
reliable and is not an attempt by deceased to cover up truth or falsely implicate a person, then courts can
safely rely on such dying declaration and it can form the basis of conviction, more so where version given
by other prosecution evidence, there is no reason for courts to doubt truthfulness of such dying
declaration.
8.4 As far as the veracity of the dying declaration before the Executive Magistrate is concerned, it is
required to be noted that the Executive Magistrate P.W. 9 Nanubhai Rana in his deposition vide Ex. 35
has stated that he had seen the opinion of the doctor as to fitness of the deceased on the yadi sent to him
by Godhra Town Police Station for recording dying declaration and that the doctor had stated that the
deceased was conscious. He stated that he went to the room where the deceased was being treated and
asked everyone present there to go out of the room.
He has supported the averments made by the deceased in the dying declaration. He has stated that he
took the thumb impression of the deceased after recording the dying declaration. He has categorically
stated that the victim was conscious and oriented enough to give her dying declaration.
8.5 In the present case, when the Executive Magistrate recorded the dying declaration pursuant to the
Vardhi received by him after taking opinion from the doctor, this Court finds no reason to disbelieve him
more particularly when he has no axe to grind against the accused and being a public officer we find no
reason as to why he will implicate a person falsely. The yadi at Ex. 37 mentions the endoresment by the
Medical Officer, General Hospital, Godhra that the deceased is conscious and able to give D.D which was
made at around 08.35 pm on 15.06.2009. The recording of dying declaration was started by the Executive
Magistrate at 08.55 pm on 15.06.2009.
8.6 It shall not be out of place to mention that the courts have to be on guard to see that the dying
declaration is not the result of either tutoring or prompting or a product of imagination and that due care
and caution must be exercised in considering weight to be given to the dying declaration.
8.7 In this regard, the Apex Court in the case of Kamalavva and another vs. State of Karnataka reported in
(2009) 13 SCC 614 has held as under:

18. In the aforesaid decision this Court while referring to the decision of the Constitution Bench in
Laxman case reiterated that there is no requirement of law that the dying declaration must necessarily
contain a certification by the doctor that the patient was in a fit state of mind specially when the dying
declaration was recorded by a Magistrate. It was also held in the said decision that it is the testimony of
the Magistrate that the declarant was fit to make statement gains the importance and reliance can be
placed upon declaration even in the absence of the doctor's certificate provided the court ultimately holds
the same to be voluntary and truthful.
19. In the backdrop of the aforesaid legal principles laid down by this Court, we will now examine the
admissibility of the dying declaration in the case in hand.
20. PW-17 (Tahsildar) has stated that he was asked by the police to record the dying declaration of the
deceased Shoba who was undergoing treatment in the hospital. He proceeded to the hospital and recorded
the statement in the presence of Dr. M.S. Sangolli (PW-18) which was marked as Ext. P.17. The aforesaid
statement was recorded in the form of questions and answers. From the nature of the answers the
deceased has given, it cannot be said that she has not understood the questions and has not given proper
answers. Therefore, it is not difficult to conclude that the mental capacity of the deceased was sound and
she was capable of giving answers to the questions put forth by PW-17. The aforesaid dying declaration
was recorded by PW- 17 in the presence of PW-18 who is a doctor attached to the same hospital. He has
categorically stated in his evidence that the doctor had given the certificate to the effect that the injured
was in a position to give the declaration. P.W. 18 also signed Ext. P. 17 (Dying Declaration). The thumb
impression of the deceased Shoba was also taken on Ext. P.17. The doctor (PW-18) who was present at the
time of recording the dying declaration has also attached a certificate to the effect that the said dying
declaration was recorded in his presence.
21. In view of the aforesaid clear and unambiguous factual position we are of the considered opinion that
the High Court was totally justified in relying upon the dying declaration recorded by the Taluka
Executive Magistrate (PW-17) The technical objection raised by the counsel for the appellant regarding
the unavailability of doctor's certification and endorsement as to mental fitness of the deceased, is liable
to be rejected in as much as the same has been held by this Court in numerous decisions as a mere rule of
prudence and not the ultimate test as to whether or not the said dying declaration was truthful or
voluntary.
22. PW-17, who recorded the dying declaration had in his deposition categorically stated that the deceased
while making the aforesaid statement was conscious and in a fit mental condition to make such a
statement. PW- 17 being a Public Officer, we find no reason as to why he will implicate a person falsely.
Accordingly, the aforesaid dying declaration could be relied upon as the same was truthfully recorded and
the said statement gave a vivid account of the manner in which the incident had taken place. The same
also corroborates in all respect with the statement given by the deceased to the police on 10.04.1995. The
said statement was also recorded by the police officer of the rank of ASI and the deceased also put her LTI
in it. In our considered opinion, the dying declaration is reliable and trustworthy and gives an accurate
version of the manner in which the incident had taken place.
[Emphasis Supplied]
9. In the complaint, Ex. 49, the deceased has stated that she was married to accused no. 1 for around six
years pursuant to which she got married to P.W. 5. She has stated that accused no. 2 is her son from first
marriage and that from the second marriage she bore two daughters. The deceased has stated in her
complaint that on 05.06.2009 at around 03.00 am while she was sleeping on a cot outside her house
along with her younger daughter Urvashi, she felt something cool poured on her and that on waking up
she found the accused persons standing there and pouring petrol over her. When she realised this,
accused no. 1 immediately lit the matchstick in his hand and set her ablaze. The deceased has stated that
she started screaming for help and at that time her husband who was sleeping nearby woke up and
immediately grabbed a pot of water lying nearby and poured water on her. She has stated that she was

thereafter taken in 108 Emergency Service to Santrampur Government Hospital and then to Godhra Civil
Hospital.
9.1 Considering the aforesaid discussion, more particularly the dying declaration recorded before the
Executive Magistrate and the complaint, the role of the appellant is clearly enunciated by the deceased.
Even otherwise, looking to the facts and circumstances of the case it cannot be said that the death was not
homicidal.
10. The post mortem report gives the details of the injuries on the body of the deceased and the same
reads as under:
17. After removal of the Hospital Bandage following injury are found all over body.
Singing of Hair present.
Blackening & exfoliation of skin present Line of Redness present.
Rt Upper limb - 7% except palm & finger Lt Upper limb - 7% except palm & finger Rt Lower limb - 12% Lt
Lower limb - 14% Front of Chest - 9% Back Chest 6 % Back of abdomen 4% Ext.
Genitals Head and neck 8% Total 73% 10.1 P.W.
1, Dr. Anil Makwana vide his evidence (Ex. 07) has stated that he performed the post mortem on the body
of deceased and has opined the cause of death to be septicemic shock due to extensive burns over her
body . He stated that the total burnt area was around 73%. He has mentioned that there were burn
injuries on the limbs, chest, abdomen and neck of the deceased and that the skin had blackened and
exfoliated. In the cross examination, this witness has denied the suggestion that the injuries sustained by
the deceased could not have led to the death of the deceased.
11. From the panchnama of scene of offence, it is borne out that the incident actually occurred outside the
house of deceased as stated by the deceased in her complaint. There were two cots lying at the scene of
offence of which one was in a half burnt condition. It is mentioned that two half burnt mattresses along
with an underskirt, vest and a shawl were also found lying nearby. A burnt matchstick was also found
from the scene of offence. In the present case, we do not find any doubt in the nature of the dying
declaration recorded. The same is also corroborated by the panchnama and other evidence on record.
12. In the case of Panneerselvam vs. State of Tamil Nadu reported in (2008) 17 SCC 190, the Apex Court
has observed as under:
7. This is a case where the basis of conviction of the accused is the dying declaration. The situation in
which a person is on his deathbed, being exceedingly solemn, serene and grave, is the reason in law to
accept the veracity of his statement. It is for this reason that the requirements of oath and crossexamination are dispensed with. Besides should the dying declaration be excluded it will result in
miscarriage of justice because the victim being generally the only eye-witness in a serious crime, the
exclusion of the statement would leave the Court without a scrap of evidence.
8. Though a dying declaration is entitled to great weight, it is worthwhile to note that the accused has no
power of cross- examination. Such a power is essential for eliciting the truth as an obligation of oath could
be. This is the reason the Court also insists that the dying declaration should be of such nature as to
inspire full confidence of the Court in its correctness. The Court has to be on guard that the statement of
the deceased was not as a result of either tutoring or prompting or a product of imagination. The Court
must be further satisfied that the deceased was in a fit state of mind after a clear opportunity to observe

and identify the assailant. Once the Court is satisfied that the declaration was true and voluntary,
undoubtedly, it can base its conviction without any further corroboration. It cannot be laid down as an
absolute rule of law that the dying declaration cannot form the sole basis of conviction unless it is
corroborated. The rule requiring corroboration is merely a rule of prudence.
12.1 On the other hand, in the case of Ongole Ravikanth vs. State of Andhra Pradesh reported in (2009) 13
SCC 647, the Apex Court has held as under:
28. It is well settled and needs no restatement at our hands that dying declaration can form the sole basis
for conviction. But at the same time due care and caution must be exercised in considering weight to be
given to dying declaration inasmuch as there could be any number of circumstances which may affect the
truth.
29. It has been repeatedly held by this Court that the courts have always to be on guard to see that the
dying declaration was not the result of either tutoring or prompting or a product of imagination. It is the
duty of the courts to find that the deceased was in a fit state of mind to make the dying declaration. In
order to satisfy itself that the deceased was in a fit mental condition to make the dying declaration, the
courts have to look for the medical opinion. [See: Smt. Paniben Vs. State of Gujarat (1992)2 SCC 474, K.
Ramachandra Reddy and Anr. Vs. The Public Prosecutor( 1976) 3 SCC 618, Darshan Singh @ Bhasuri
& Ors. Vs. State of Punjab (1983) 2 SCC 411, Kanchy Komuramma Vs. State of A.P. ( 1995) Supp. 4
SCC 118, Maniram Vs. State of M.P. ( 1994) Supp. 2 SCC 539, Laxman Vs. State of Maharashtra ( 2002) 6
SCC 710 & Nallapati Sivaiah Vs. Sub-Divisional Officer, Guntur, A.P. AIR 2008 SC 19].
12.2 In the case of M.
Sarvana Alias K.D. Sarvana vs. State of Karnataka reported in (2012) 7 SCC 636, the Apex Court has held
in para 16 as under:
16. In Laxman v. State of Maharashtra (2002)6 SCC 710, the Court while dealing with the argument that
the dying declaration must be recorded by a magistrate and the certificate of fitness was an essential
feature, made the following observations. The court answered both these questions as follows:
3. The juristic theory regarding acceptability of a dying declaration is that such declaration is made in
extremity, when the party is at the point of death and when every hope of this world is gone, when every
motive to falsehood is silenced, and the man is induced by the most powerful consideration to speak only
the truth. Notwithstanding the same, great caution must be exercised in considering the weight to be
given to this species of evidence on account of the existence of many circumstances which may affect their
truth. The situation in which a man is on the deathbed is so solemn and serene, is the reason in law to
accept the veracity of his statement. It is for this reason the requirements of oath and cross-examination
are dispensed with. Since the accused has no power of cross-examination, the courts insist that the dying
declaration should be of such a nature as to inspire full confidence of the court in its truthfulness and
correctness. The court, however, has always to be on guard to see that the statement of the deceased was
not as a result of either tutoring or prompting or a product of imagination. The court also must further
decide that the deceased was in a fit state of mind and had the opportunity to observe and identify the
assailant. Normally, therefore, the court in order to satisfy whether the deceased was in a fit mental
condition to make the dying declaration looks up to the medical opinion. But where the eyewitnesses state
that the deceased was in a fit and conscious state to make the declaration, the medical opinion will not
prevail, nor can it be said that since there is no certification of the doctor as to the fitness of the mind of
the declarant, the dying declaration is not acceptable. A dying declaration can be oral or in writing and
any adequate method of communication whether by words or by signs or otherwise will suffice provided
the indication is positive and definite. In most cases, however, such statements are made orally before
death ensues and is reduced to writing by someone like a Magistrate or a doctor or a police officer. When
it is recorded, no oath is necessary nor is the presence of a Magistrate absolutely necessary, although to
assure authenticity it is usual to call a Magistrate, if available for recording the statement of a man about
to die. There is no requirement of law that a dying declaration must necessarily be made to a Magistrate

and when such statement is recorded by a Magistrate there is no specified statutory form for such
recording. Consequently, what evidential value or weight has to be attached to such statement necessarily
depends on the facts and circumstances of each particular case. What is essentially required is that the
person who records a dying declaration must be satisfied that the deceased was in a fit state of mind.
Where it is proved by the testimony of the Magistrate that the declarant was fit to make the statement
even without examination by the doctor the declaration can be acted upon provided the court ultimately
holds the same to be voluntary and truthful. A certification by the doctor is essentially a rule of caution
and therefore the voluntary and truthful nature of the declaration can be established otherwise.
In that view of the matter, it is clear that the dying declaration being voluntary and made in a fit state
cannot be discarded.
13. P.W.
5 Kanubhai Manji is the husband of deceased and this witness in his deposition vide Ex. 26 has stated on
the date of incident while he was sleeping on a cot outside his house along with his wife and daughters, he
heard a blast and screams and when he woke up he saw that his wife was in burns. This witness has stated
that he immediately called 108 Emergency service and rushed the deceased to hospital and therefore
informed the local police station where the Janva Jog entry no. 6/1 was recorded. This witness has stated
that during treatment after about a week the deceased regained consciousness and informed him that the
accused persons had poured petrol on her and set her on fire and the police was accordingly informed.
13.1 P.W.
7 Pravinbhai Shankarbhai is the brother-in-law of deceased and a hear-say witness and this witness has
supported the prosecution case. He reached the scene of offence after hearing the screams of the accused
and this witness has stated that he was informed by P.W. 5 that the accused persons had set the deceased
on fire.
13.2 P.W.
8 Lalitaben Dindor is the aunt-in-law of the deceased who has also supported the prosecution case. This
witness also reached the scene of offence after hearing the screams of the deceased. This witness has
stated that after the deceased was taken to hospital for treatment, the deceased had told this witness that
her son accused no. 2 had set her on fire and ran away.
14. Considering the contents of dying declaration, the evidence of Executive Magistrate, evidence of
witnesses and other corroborating documentary evidence such as panchnama of scene of offence, inquest
panchnama we are of the opinion that the fact that the deceased died a homicidal death as a result of the
action of the accused is proved beyond reasonable doubt.
15. It appears from the record that the learned Sessions Judge noticed the vital aspects of the case while
holding that the prosecution had proved the offence as committed by the appellants accused. The
prosecution has been able to prove the case against the appellants accused and therefore we see no reason
to interfere so far as the case of the prosecution that the appellants are the ones who committed the
alleged offence.
16. As per the latest decision of the Apex Court, we have appreciated, re-appreciated and re-evaluated the
evidence led before the trial court in its entirety but we are unable to persuade ourselves to take a different
view than the one taken by the trial court that the appellants are the perpertrators of the alleged offence.
17. However, we have also not lost sight of the fact that the deceased had died after about 28 days of
treatment. From the medical reports, it is clear that the deceased suffered from Septicemia which
happened due to extensive burns.

17.1 In the case of the B.N. Kavatakar and another (supra), the Apex Court in a similar case of septicemia
where the deceased therein had died in the hospital after five days of the occurrence of the incident in
question, converted the conviction under section 302 to under section 326 and modified the sentence
accordingly.
17.2 Similarly, in the case of Maniben (supra), the Apex Court has observed as under:
18. The deceased was admitted in the hospital with about 60% burn injuries and during the course of
treatment developed septicemia, which was the main cause of death of the deceased. It is, therefore,
established that during the aforesaid period of 8 days the injuries aggravated and worsened to the extent
that it led to ripening of the injuries and the deceased died due to poisonous effect of the injuries.
It is established from the dying declaration of the deceased that she was living separately from her
mother-in-law, the appellant herein, for many years and that on the day in question she had a quarrel
with the appellant at her house. It is also clear from the evidence on record that immediately after the
quarrel she along with her daughter came to fetch water and when she was returning, the appellant came
and threw a burning tonsil on the clothes of the deceased. Since the deceased was wearing a terylene cloth
at that relevant point of time, it aggravated the fire which caused the burn injuries.
There is also evidence on record to prove and establish that the action of the appellant to throw the
burning tonsil was preceded by a quarrel between the deceased and the appellant. From the aforesaid
evidence on record it cannot be said that the appellant had the intention that such action on her part
would cause the death or such bodily injury to the deceased, which was sufficient in the ordinary course of
nature to cause the death of the deceased. Therefore, in our considered opinion, the case cannot be said to
be covered under clause (4) of Section 300 of IPC. We are, however, of the considered opinion that the
case of the appellant is covered under Section 304 Part II of IPC.
18. In the present case, we have come to the irresistible conclusion that the role of the accused no. 1 & 2 is
clear from the dying declaration and other records. However, the point which has also weighed with this
court are that the deceased had survived for around 28 days in the hospital and ultimately died of
septicemia. In fact she had sustained about 73% burns. In that view of the matter, we are of the opinion
that the conviction of the appellants under section 302 of Indian Penal Code is required to be converted to
that under section 304(I) of Indian Penal Code. The conviction of the appellants under section 114 is
however upheld.
19. Accordingly, the conviction of the appellants - original accused no. 1 & 2 under Section 302 of the
Indian Penal Code vide judgment and order dated 27.08.2010 passed by the Third Additional Sessions
Judge, Panchmahal at Godhra in Sessions Case No. 148 of 2009 is converted to conviction under Section
304 (Part I) of Indian Penal Code. The conviction of the appellants under section 114 of Indian Penal Code
is, however, confirmed. Accordingly, the appellants are ordered to undergo rigorous imprisonment for ten
years with fine of Rs. 1,000/-, in default, rigorous imprisonment for one month under section 304 (Part I)
of Indian Penal Code. The sentence awarded by the court below stands altered accordingly. The
judgement and order dated 27.08.2010 is modified accordingly. The period of sentence already
undergone shall be considered for remission and set off in accordance with law. Appeals are allowed to the
aforesaid extent. R & P to be sent back forthwith.
(K.S.JHAVERI, J.) (K.J.THAKER, J) divya Page of 23