IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No 770 of 1996 For Approval and Signature: HON'BLE MR.JUSTICE J.M.PANCHAL and HON'BLE MR.JUSTICE J.R.VORA ============================================================ 1. Whether Reporters of Local Papers may be allowed : YES to see the judgements? 2. To be referred to the Reporter or not? : YES 3. Whether Their Lordships wish to see the fair copy : NO of the judgement? 4. Whether this case involves a substantial question : NO of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the concerned : NO Magistrate/Magistrates,Judge/Judges,Tribunal/Tribunals? -------------------------------------------------------------- VIRAMJI MOHATJI THAKORE Versus STATE OF GUJARAT -------------------------------------------------------------- Appearance: 1. Criminal Appeal No. 770 of 1996 MR PK JANI for Appellant. MR UR BHATT, ADDL.PUBLIC PROSECUTOR for Respondent -------------------------------------------------------------- CORAM : HON'BLE MR.JUSTICE J.M.PANCHAL and HON'BLE MR.JUSTICE J.R.VORA Date of decision: 03/08/2004 ORAL JUDGEMENT (Per : HON'BLE MR.JUSTICE J.M.PANCHAL) Instant appeal filed under Section 374 of the Code of Criminal Procedure, 1973 is directed against judgment dated August 7, 1996, rendered by the learned Additional Sessions Judge, Mehsana, in Sessions Case No.95 of 1996, by which the appellant is convicted of the offence punishable under Section 302 of the Indian Penal Code and sentenced to suffer R.I. for life and fine of Rs.500/-, in default, R.I. for three months. 2. Deceased Manjuben Ramaji Thakor was married to Ramaji Mansangji Thakor before 8 years of the incident which took place on February 5, 1996 and was residing with her husband and three minor daughters at village Sundhia, Taluka : Kheralu, District : Mehsana. On February 4, 1996, a religious discourse was arranged in front of house of one Thakor Kavaji in the Maholla where house of deceased Manjulaben Thakor was situated. The appellant, who is neighbour and family nephew of the deceased, had approached the deceased and asked the deceased to submit to his sexual desires. The deceased had spurned the offer upon which the appellant had got enraged and annoyed. On the day of incident i.e.February 5, 1996, a quarrel had taken place between the appellant and the deceased, as the deceased had refused to submit herself to illegal and improper demands made by the appellant to have sex with her. At about 8.00 P.M. the appellant had gone inside the house of the deceased, who was sleeping with her three minor daughters, with a can containing kerosene. The appellant had poured kerosene over the deceased and set her ablaze. The deceased had put on polyester Sari which had caught fire immediately. Because of burn injuries, the deceased had raised shouts. Her husband Ramaji, who was not present, was also informed about the same and he with the help of othershad extinguished fire by covering the body of the deceased with a quilt. The deceased was thereafter removed to General Hospital, Visnagar for treatment. Dr.Bhogilal Amthalal, who was then Medical Officer of the Hospital, had treated her and noted history of assault as narrated by the deceased. The doctor had given telephonic information at Visnagar Police Station, which was noted down by P.S.O. of the Police Station. P.S.O. of the Police Station had sent a yadi to Executive Magistrate Mr.Rasiklal Jivabhai Patel and requested him to record dying declaration of the deceased. Accordingly, the Executive Magistrate had gone to the hospital and tried to ascertain from the doctor as to whether the deceased was conscious and in a fit state of mind to make statment or not. The doctor, whose office was situated quite near the Ward in which the deceased was admitted for treatment, had examined the deceased and certified that the deceased was conscious and in a fit state of mind to make statement. The doctor had made necessary endorsement below the yadi itself which was addressed by the police officer in charge of Visnagar Police Station to the Executive Magistrate requesting him to record dying declaration of the deceased. The Executive Magistrate had also satisfied himself that the deceased was conscious and in a fit state of mind to make statement. Accordingly, the Executive Magistrate had recorded the dying declaration of the deceased in questions and answers form and obtained right hand thumb impression of the deceased after recording of dying declaration was over. The police officer in charge of Visnagar Police Station had infomred the 2nd Grade Jamadar Mr.Shambhuji Pradhanji that the deceased was admitted in Visnagar General Hospital for treatment of burn injuries and that appropriate steps should be taken by him. Accordingly, the 2nd Grade Jamadar had gone to General Hospital, Visnagar and recorded complaint of the deceased as narrated by her. In view of disclosure made by the deceased that the appellant had set her on fire after pouring kerosene over her, initially offence punishable under Section 307 I.P.C. was registered against him. The complaint lodged by the deceased was investigated by Mr.G.K.Desai, who was then P.I. of Kheralu Police Station because the offence had taken place within the jurisdiction of Kheralu Police Station. The investigating officer had drawn panchnama of place of occurrence as pointed out by Sartanji, who was brother of husband of the deceased. The investigating officer had also recorded statements of those persons, who were found to be conversant with the facts of the case. Meanwhile, the appellant had surrendered before the police on February 7, 1996 with a plastic Can which was smelling of kerosene and, therefore, the appellant was arrested; whereas the Can smelling kerosene was attached. As condition of the deceased had deteriorated, she was referred to Civil Hospital, Ahmedabad for better treatment. During the course of treatment, the deceased had succumbed to her injuries on February 11, 1996 and, therefore, offence punishable under Section 302 I.P.C. was registered against the appellant. The investigating officer had made arrangements for sending the dead body of the deceased to Civil Hospital, Ahmedabad for postmortem examination. The autopsy on the dead body of the deceased was held by a panel of doctors comprising Dr.Pratimaben Bharatkumar and Mr.B.B.Oza. The investigating officer had thereafter held inquest on the dead body of the deceased and sent incriminating articles such as control earth seized from the place of incident plastic Can produced by the appellant etc. for analysis to Forensic Science Laboratory. On conclusion of investigation, the appellant was chargesheeted in the Court of learned Judicial Magistrate, First Class, Kheralu of the offence punishable under Section 302 I.P.C. As the offence punishable under Section 302 I.P.C. is exclusively triable by a Court of Sessions, the case was committed to Sessions Court, Mehsana for trial, where it was numbered as Sessions Case No. 95 of 1996. 3. The learned Additional Sessions Judge, Mehsana, to whom the case was made over for trial, had framed charge against the appellant of the offence punishable under Section 302 I.P.C. at Exh.2. The charge was read over and explained to the appellant, who pleaded not guilty to the same and claimed to be tried. The prosecution, therefore, examined (1) Dr. Pratimaben Bharatkumar as PW.1 at Exh.9, (2) Ramaji Mansangji as PW.2 at Exh.11, (3) Patel Rasiklal Jivabhai as PW.3 at Exh.12, (4) Bakaji Sartanji as PW.4 at Exh.15, (5) Sartanji Mansangji as PW.5 at Exh.16, (6) Shambhuji Pradhanji as PW.6 at Exh.21, (7) Khodaji Bhikhaji as PW.7 at Exh.23, (8) Ghemarji Amaji as PW.8 at Exh.25, (9) Gandabhai Kalabhai Desai as PW.9 at Exh.26, and (10) Dr.Bhogilal Amthalal as PW.10 at Exh.28, to prove its case against the appellant. The prosecution also produced documentary evidence such as map of place of occurrence at Exh.8, postmortem notes at Exh.10, yadi sent to Executive Magistrate requesting him to record dying declaration of the deceased at Exh.13, dying declaration of the deceased recorded by Executive Magistrate at Exh.14, panchnama of place of occurrence at Exh.17, panchnama of person of the deceased at Exh.18, panchnama indicating seizure of clothes of the deceased at Exh.19, inquest report at Exh.20, complaint of deceased Manjuben as recorded by witness Shambhuji Pradhanji at Exh.22, arrest panchnama of the appellant at Exh.24, certificate indicating injuries sustained by the deceased which was issued by Dr.Bhogilal Amthalal at Exh.29 etc. in support of its case against the appellant. 4. After recording of evidence of prosecution witnesses was over, the learned Judge explained to the appellant the circumstances appearing against him in the evidence of prosecution witnesses and recorded his further statement as required by Section 313 of the Code of Criminal Procedure, 1973. In his further statement case of the appellant was that of general denial and in answer to last question the appellant contended that he was falsely involved in the case. However, neither the appellant examined himself on oath nor examined any other witness to substantiate his defence that he was falsely involved in the case. 5. On appreciation of evidence adduced by the prosecution, the learned Judge held that the husband of the deceased and other relatives of the deceased, to whom the deceased had narrated the incident, had deserted her because a compromise had taken place with the appellant, but the dying declaration made by the deceased in the form of history of assault narrated before Dr.Bhogilal as well as dying declaration recorded by Executive Magistrate Mr.Rasiklal Jivabhai Patel and complaint which was recorded by police constable Shambhuji Pradhanji and which was liable to be treated as her dying declaration after her death, were consistent, cogent as well as trustworthy which, in turn, established that two days prior to the date of incident the appellant had asked the deceased to submit herself to his sexual desire and on refusal by the deceased, the appellant was enraged, as a result of which on February 5, 1996 at about 8.00 P.M. the appellant had murdered her by pouring kerosene over her and setting her ablaze. In view of abovereferredto conclusions, the learned Judge has convicted the appellant under Section 302 I.P.C. and imposed sentence referredto above by judgment dated August 7, 1996, giving rise to instant appeal. 6. Mr.P.K.Jani, learned counsel of the appellant, contended that the evidence on record goes to show that bandage was applied on hands of the deceased, which makes the claim of the Executive Magistrate as well as that of the police officer that the deceased had put her right hand thumb impression on the dying declaration as well as on the complaint recorded by 2nd Grade Jamadar Shambhuji, thoroughly unreliable and, therefore, those dying declarations should not be acted upon by this Court. According to the learned counsel of the appellant, contents of panchnama Exh.18 indicate that the deceased was not able to speak at 11.30 P.M. and, therefore, claim advanced by the Executive Magistrate as well as by the police constable that the deceased was conscious and in a fit state of mind to make statement should be disbelieved by the Court. What was emphasised by the learned counsel of the appellant was that even if the Court were to come to the conclusion that the deceased was conscious and in a fit state of mind to make statement, dying declaration recorded by the Executive Magistrate shows that the deceased was dragged out of the room where she was sleeping and thereafter the appellant had poured kerosene over her and set her ablaze, but no traces of kerosene were found outside her house and there being material discrepancy about the scene of offence, both the dying declarations should be rejected by this Court. What was maintained was that no independent witnesses were examined, though the incident is alleged to have taken place outside the house and, therefore, after drawing adverse inference against the prosecution, the judgment impugned should be set aside. It was argued that the testimony of Executive Magistrate establishes that he had to ask every question to the deceased twice which, in turn, further establishes that she was neither in a position to understand the questions nor in a fit state of mind to make statement and, therefore, the so-called dying declaration recorded by the Executive Magistrate should not have been relied upon by the learned Judge for basing conviction of the appellant under Section 302 I.P.C. The learned counsel pointed out that in the medical case papers the doctor had failed to note the time and date of arrival of Executive Magistrate at the hospital for recording dying declaration of the deceased and in absence of any such corroborative piece of evidence on record, dying declaration of the deceased recorded by the Executive Magistrate should have been disbelieved. It was asserted that the testimony of the head constable shows that he had gone to the hospital at 12.05 hours of February 6, 2006 for recording complaint of the deceased and had remained there upto 12.35 hours; whereas testimony of the Executive Magistrate also shows that he had gone to the hospital at 12.10 hours of February 6, 1996 for recording dying declaration of the deceased, and as the dying declaration of the deceased and her complaint could not have been recorded at the one and the same time, both the dying declarations should have been discarded by the learned Judge of the trial Court as thoroughly unreliable. According to the learned counsel of the appellant, the Head Constable has specifically stated in his testimony that he was in the hospital upto 12.35 hours of February 6, 1996, but, nobody had come near the deceased at all and, therefore, the assertions made by the Executive Magistrate that he had gone to the hospital and recorded dying declaration of the deceased should have been disbelieved by the Court of first instance. It was also argued that no endorsement was made by the doctor on the dying declaration of the deceased about the state of mind of the deceased and, therefore, having regard to the nature of injuries sustained by the deceased, the Court should have held that the deceased was not in a fit state of mind to make statement and that her dying declaration as propounded by the Executive Magistrate was not a reliable piece of evidence. It was urged that the conduct of the appellant of running away with Can and producing the same before the police is highly improbable and, therefore, seizure of Can smelling kerosene should not have been taken into consideration by the trial Court as one of the circumstances established against the appellant. What was maintained was that the doctor was not present when dying declaration was recorded by the Executive Magistrate and, therefore, the dying declaration of the deceased should not have been used as a piece of evidence against the appellant. In the alternative, it was argued that the burn injuries sustained by the deceased were not sufficient in the ordinary course of nature to cause her death, as the deceased had sustained 1st and 2nd degree burns over chest, both upper limbs, right thigh, face about 50%, whereas she had died after six days of the incident and as it was not the intention of the appellant to cause murder of the deceased, conviction of the appellant under Section 302 I.P.C. should be converted into one punishable under Section 304 Part-I or Part-II of the Indian Penal Code, as the case may be, and the punishment already undergone by him by this time should be imposed on him for commission of offence punishable under Section 304 I.P.C. 7. Mr.U.R.Bhatt, learned A.P.P., contended that though the close relatives of the deceased had deserted her, truth has come out in form of her dying declarations, which are cogent as well as trustworthy and, therefore, instant appeal should be dismissed. According to the learned counsel of the State Government, history of assault as narrated by the deceased before the doctor, which is referredto by the doctor in his substantive evidence before Court is not challenged by the defence at all and, therefore, conviction of the appellant must be sustained on the basis of said evidence which is of sterling quality. The learned counsel of the State Government emphasised that all the three dying declarations which are on record of the case are not only consistent with each other, but no major part of any of the dying declarations is demonstrated to be false with reference to other reliable evidence on record and, therefore, well-founded conviction of the appellant under Section 302 I.P.C. recorded on the basis of dying declarations should be upheld by this Court. It was argued that the plea that thumb impression of the deceased could not have been obtained either on the dying declaration recorded by the Executive Magistrate or on the complaint recorded by the 2nd Grade Jamadar has no substance whatsoever because the record does not indicate that in fact the deceased had sustained any burn injury on the thumb on her right hand. What was argued was that neither the Executive Magistrate nor the Doctor, who had initially treated the deceased at Visnagar General Hospital, nor the 2nd Grade Jamadar who had recorded complaint of the deceased is shown to be on inimical terms with the appellant or interested in the deceased who was belonging to lower strata of the society and, therefore, there is no reason for the Court to discard their reliable testimony, which establishes that dying declarations of the deceased and/or complaint of the deceased as narrated by her was recorded by the Doctor, Executive Magistrate and/or police constable and that commission of offence by the appellant is satisfactorily proved by the prosecution. The learned counsel emphasised that, in fact, there is no discrepancy about the place of incident at all, inasmuch as osari is also a part of the house of the deceased and as no major part of the dying declaration is demonstrated to be false with reference to other evidence on record, the learned Judge of the trial Court did not commit any error in convicting the appellant of offence punishable under Section 302 I.P.C. According to the learned counsel of the State Government, cogent reasons have been given by the learned Judge for convicting the appellant of the offence punishable under Section 302 I.P.C. and as the learned counsel of the appellant has failed to dislodge them, the appeal should be dismissed. 8. This Court has undertaken a complete and comprehensive appreciation of all vital features of the case and the entire evidence on record with reference to broad and reasonable probabilities of the case. It is true that close relatives of the deceased have deserted her and not supported the prosecution case before the Court. There is no manner of doubt that the prosecution heavily relies upon three dying declarations made by the deceased, viz. (i) history of assault narrated by the deceased before Dr.Bhogilal Amthalal implicating the appellant as author of injuries sustained by her; (ii) dying declaration recorded by Mr.Rasiklal Jivabhai Patel, who was then Executive Magistrate, and (iii)complaint of the deceased which was recorded by 2nd Grade Jamadar Shambhuji Pradhanji and which is treated as her dying declaration after her death. 9. Before appreciating the evidence of the witnesses and the contents of dying declarations, it would be relevant to notice the law relating to dying declaration. Section 32(1) of the Indian Evidence Act, 1872 is an exception to the general rule that hearsay evidence is not admissible evidence and unless evidence is tested by cross-examination, it is not creditworthy. Under Section 32 when a statement is made by a person as to the cause of death or as to any of the circumstances, which result in his death, in cases in which the cause of that person's death comes into question, such a statement, oral or in writing made by the deceased to the witness is a relevant fact and is admissible in evidence. The statement made by the deceased, called the dying declaration, falls in that category provided it has been made by the deceased while in a fit mental condition. It is well settled that conviction can be based on the dying declaration itself provided it is satisfactory and reliable. A dying declaration made by a person on the verge of his death has a special sanctity, as at that solemn moment, a persons is most unlikely to make any untrue statement. The sanctity attached to dying declaration is that a person on the verge of death would not commit sin of implicating somebody falsely. The shadow of impending death is by itself the guarantee of truth of the statement made by the deceased regarding cause of circumstances leading to his death. The general principle on which this species of evidence is admitted is that they are declarations made in extremity, when the person is at the point of death and when every hope of this world is gone. At that point of time every motive to falsehood is silenced and the mind is induced by the most powerful consideration to speak the truth. Such a solemn situation is considered by the law as creating an obligation equal to that which is imposed by a positive oath administered in a court of justice. A dying declaration, therefore, enjoys almost a sacrosanct status as a piece of evidence, coming as it does from the mouth of the deceased victim. Once the statement of dying person and the evidence of the witnesses testifying to the same passes the test of careful scrutiny of the Courts, it becomes very important and reliable piece of evidence and if the Court is satisfied that the dying declaration is true and free from any embellishment such a dying declaration by itself can be sufficient for recording conviction even without looking for any corroboration. However, if there are any infirmities of such nature warranting further assurance then the Courts have to look for corroboration. The rule of corroboration requires that the dying declaration be subjected to close scrutiny since the evidence is untested by cross-examination. The declaration must be accepted, unless such declaration can be shown not to have been made in expectation of death or to be otherwise unreliable. Any evidence adduced for this purpose can only detract from its value, but does not affect its admissibility. It is also well settled that it is not necessary that recording of dying declaration should be in the form of question and answer. One of the important tests of reliability of dying declaration is that the person who recorded it must be satisfied that the deceased was in a fit state of mind. Generally, the following three tests have been devised in judicial pronouncements in order to answer the question whether the dying declaration is true:- (1) Was the victim in a position to identify the assailant/s? (2) Whether the version narrated by the victim is intrinsically sound and accords with probabilities? (3) Whether any material part is proved to be false by other reliable evidence? (See : (1) Khushall Rao v. State of Bombay (1958) SCR 552; (2) Tarachand Damu Sutar v. State of Maharashtra (1962) 2 SCR 775; (3) Kusa and Ors. v. State of Orissa, (1980) 2 SCC 207; (4) Meesala Kundulal Bala Subrahmaniyam and another v. State of A.P., (1993) 2 SCC 684; (5) Meesala Ramkrishna v. State of A.P., (1994) 4 SCC 181; (6) Govardhan Raoji Ghyare v. State of Maharashtra, 1993 Suppl. 4 SCC 316; (7) Gangotri Singh v. State of U.P. 1993 Suppl. 1 SCC 387; (8) Smt.Paniben v. State of Gujarat, A.I.R. 1992 SC 1817; (9) State of Rajsthan v. Kishore, JT 1996 (2) SC 595; and (10) State of U.P. v. Ameer Ali, JT 1996 (4) SC 123,(11) Laxman v.State of Maharashtra, (2002)6 SCC 710). 10. In light of above principles, this Court will have to consider three dying declarations produced by the prosecution in instant case and ascertain the truth with reference to those dying declarations made by the deceased. Dr. Bhogilal Amthalal is examined as PW.10 at Exh.28. He has stated in his testimony that on February 5, 1996 he was on