Raju, J. -
(1.)The appellant, head of the family which consisted besides himself, his wife, four daughters and a son aged about 5 years, stood charged for committing a brutal and cold blooded murder of his wife and four daughters by setting them on fire, when they were stated to be fast asleep under an impression that they were safe in their own house, and convicted for the offence of murder under S. 302, I. P. C. and awarded death sentence by the learned trial Judge which in turn was also confirmed by the High Court. Though charged with an offence under S. 201, I. P. C. also, the trial Court acquitted him of the same. Before the High Court, confirmation case No. 3 of 2000 and Criminal Appeal No. 540 of 2000 filed by the appellant came to be disposed of together and while confirming the conviction and imposition of the death sentence, the appeal came to be dismissed by a Division Bench of the Gujarat High Court at Ahmedabad.
(2.)The area of controversy is very narrow in that as to whether it is homicidal as per the prosecution version or by sheer accident, as sought to be contended on behalf of the appellant. The occurrence was in the very house where the family lived wherein the appellant, the five members who died and his son lived and the manner in which the five members met their gruesome end is due to flames which engulfed them when they were asleep at 3 a.m. in the early morning hours on 22-5-99. Whether the said fire broke out accidentally or was the making of the appellant deliberately, alone is the dispute since that he struck a match which resulted in the huge fire due to the spilling of petrol accidentally near the cots on which the victims were sleeping is the fact which gives the turn or twist to the whole case. In short whether the appellant designedly sprinkled the petrol which he admittedly procured and kept in the house, though a controversy was raised as to the quantity procured by him, on the sleeping members of the family and set fire to them or that it was a mere case of accidental spill, as the appellant would try to make others to believe.
(3.)The skeletal facts necessary to appreciate the claims on behalf of the appellant are that the appellant was a fruit vendor selling mainly bananas in his hand cart in the city of Rajkot, that he got married to Savitaben, and through her had four daughters - Raju Ben alias Nirmala, Harshidd, Usha and Guddi and a son Kishan. Eight months prior to the date of occurrence, the appellant purchased the house from his nephew PW-14, for Rs.1,75,000/- prior to which he was living in Ashapura Nagar locality in Rajkot. A portion of the price Rs. 40,000/- remained yet to be paid and though the family started living in the house, it appears the wife and daughters did not like the house and started pressurising him to sell and purchase another house in some other locality. The appellant who got agitated by all these seems to have purchased five litters of petrol in a plastic can 'Car boy' from Jayanth Petrol Pump, Rajkot and kept the same in the kitchen. On 21-5-99, after dinner at about 9 p.m. the appellant and his son had gone to sleep on the terrace of the house and other members slept in the rear room of the size 9' x 10' on the ground floor. At about 3 a.m. early next morning, the appellant collected the petrol in a steel bowl and sprinkled the same on his wife and daughters who were sleeping and by light in a match set them on fire and in the process was said to have also sustained burn injuries on his left ear, left shoulder and right thumb. There was huge fire in the room in which the deceased members of the family were sleeping and apprehending that he may also get burnt, ran away from the room by closing the door from outside and went to HUDCO Police Chowky. He seems to have stated that when he was lighting a lamp of petrol he sustained burn injuries and his wife and daughters seriously got caught in the big fire in the house and that they should be saved. On the direction of the chowkidar to go to the hospital for treatment he went by an autorickshaw to the hospital and got examined by the doctor PW-9 around 3.30 p.m. and the statement then made by him was that he sustained burn injury while preparing tea at his house. The huge fire resulted in the destruction of television set and other articles. Neighbours gathered and the brother of the appellant PW-13 brought the dead bodies to the hospital and identified them to be that of the wife and daughters of the appellant. Post mortem was conducted and the medical opinion as to the cause of death was due to shock and extensive burns and failure of cardio respiratory system due to those extensive burns. A dying declaration was also recorded from the appellant by the Executive Magistrate between 10.30 a.m. and 11 a.m. with an endorsement of the doctor that the appellant/patient remained conscious throughout. The appellant was later discharged on 3-6-99 when he came to be arrested in connection with the case registered against him under S. 302, I. P. C.