CR.A/835/2000 1/17 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 835 of 2000 For Approval and Signature: HONOURABLE MR.JUSTICE C.K.BUCH HONOURABLE MR.JUSTICE D.N.PATEL ========================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================= DEVATSINGH @ DEVENDRASINGH AJITSINGH JADEJA - Appellant Versus STATE OF GUJARAT - Opponent ========================================= Appearance : MR RR TRIVEDI for the Appellant. MR HL JANI, APP for the Opponent. ========================================= CORAM : HONOURABLE MR.JUSTICE C.K.BUCH and HONOURABLE MR.JUSTICE DN PATEL Date : 11/12/2008 CR.A/835/2000 2/17 JUDGMENT ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE D.N.PATEL) 1. The present appeal has been preferred against the judgment and order of conviction and sentence dated 30th June,2000 passed by the learned Additional Sessions Judge, Rajkot in Sessions Case No.35 of 1999, whereby the present appellant has been convicted for an offence punishable under Section 302 read with Section 34 of the Indian Penal Code and sentenced to undergo life imprisonment and to pay a fine of Rs.10,000/-, in case of default, further rigorous imprisonment for two years has been awarded. No separate sentence has been awarded for an offence punishable under Section 498-A of the Indian Penal Code. Against this order, the present appeal has been preferred by the appellant. 2. Brief facts of the present case are as under: On 22nd September,1998 at about 7:00 p.m. at Majothinangar in city of Rajkot, Bhavnaben wife of the appellant- accused was ablazed by the present appellant as well as by two juvenile daughters of his maternal uncle, at the parental house of the deceased Bhavnaben. F.I.R. bearing C.R.No.I-587 of 1998 was registered at Rajkot City “B” Division Police Station on 22nd September,1998 at 19:00 hours. It is a case of the prosecution that the present appellant-accused was residing in the city of Rajkot. His wife Bhavnaben had gone at her parental house because of cruelty CR.A/835/2000 3/17 JUDGMENT made by her husband and, therefore, she did not want to go to her husband's house. Ultimately, husband came to the parental house with two other co-accused - juvenile daughters of his maternal uncle, the appellant poured kerosene upon Bhavnaben and two juvenile caught hold of Bhavnaben. The present appellant set fire on Bhavnaben. Immediately she came out of the house in burning condition at that time, her mother i.e. P.W.No.7, who had gone to purchase milk returned to her house. She asked her daughter as to what happened. Bhavnaben informed her mother that she was set on fire by her husband and two juvenile daughters of maternal uncle of her husband. Thereafter, she was taken to Civil Hospital at Rajkot, where police i.e. P.W.No.4 – Chaturbhai Dhanjibhai also asked her about cause of burn injuries and she also stated the same facts before P.W.No.4. This police witness made entry in the Hospital Choki Register at Exh-24 on 22nd September,1998 and immediately informed Rajkot City “B” Division Police Station. In Police station also, separate Register is maintained and in that Register, name and role played by the appellant-accused is also mentioned. The said entry is at Exh-22. Thereafter, Doctor, who gave emergency treatment i.e. P.W.No.5 also asked the deceased about the cause of burn injuries and the same is reduced in writing in case papers at 7:35 p.m. on 22nd September,1998. As per this case papers, case history recorded by P.W.No.5 also reveals involvement of the present appellant-accused (Exh-32). Treatment papers are at Exh-33, which CR.A/835/2000 4/17 JUDGMENT also reveal involvement of the present appellant-accused and also fact that the deceased was conscious when she was brought for emergency treatment at 7:35 p.m. Thereafter, police yadi was sent to Executive Magistrate for recording of dying declaration. When Executive Magistrate came at 8:40 p.m. on 22nd September,1998, as per P.W.No.6 – Dr.Mohmadbhai Usmanbhai Khebar (of Civil Hospital), patient was not in a position to give answer and, therefore, dying declaration was not recorded by the Executive Magistrate. Thereafter, Bhavnaben, wife of the appellant-accused expired at 4:40 a.m. on 23rd September,1998. Therefore, initially an offence, which was recorded under Section 498-A read with Section 114 of Indian Penal Code, a report was given by the police (P.W.No.10) for an additional offence punishable under Section 302 of the Indian Penal Code. The appellant-accused was arrested on 24th September,1998 at 22:00 hours and upon recording of the statements and various panchnamas, charge-sheet was filed. For juveniles also a separate charge-sheet was before competent Court. Sessions Case No.35 of 1999 was registered against the appellant- accused. Looking to the evidence given by 10 prosecution witnesses and other documentary evidence, prosecution has proved the offence beyond reasonable doubt and, therefore, the Trial Court has convicted the present appellant for the offence of murder of his wife Bhavnaben. Against this order, the present appeal has been preferred by the appellant. CR.A/835/2000 5/17 JUDGMENT 3. We have heard learned counsel for the appellant, who has mainly submitted that the Trial Court has not properly appreciated the evidence on record. There are lot of omissions, contradictions and improvements in the deposition of the prosecution witnesses and, therefore, the judgement and order of conviction and sentence passed by the Trial Court deserves to be quashed and set aside. 4. Learned counsel for the appellant further submitted that dying declaration has not been reduced in writing. The whole case is based upon oral dying declaration. The same is not recorded in the words of the deceased. It is further submitted that it was doubtful that the patient was conscious and, therefore, no reliance can be placed on oral dying declaration as the same is not trustworthy and reliable. This aspect of the matter has not been properly appreciated by the Trial Court and, hence also, the judgement and order of conviction and sentence passed by the Trial Court deserves to be quashed and set aside. 5. Learned counsel for the appellant heavily relied upon the deposition of Dr.Mahmadbhai Usmanbhai Khebar - P.W.No.6, who is a Medical Officer in Rajkot Civil Hospital. He has submitted that the patient was not in a position to give correct answer. He has also relied upon the fact that there is remarkable difference between handwritings at Exh-32 and Exh-33 and pointed out that CR.A/835/2000 6/17 JUDGMENT because of deposition given by P.W.No.6 and documentary evidence at Exh-32 and Exh-33, benefit of doubt ought to be given to the appellant. 6. We have heard learned Additional Public Prosecutor for the respondent, who has submitted that the prosecution has proved the offence beyond reasonable doubt. There are mainly three witnesses, who are P.W.Nos. 4, 5 and 7. Oral dying declarations were made by the deceased before these three witnesses. There is also contemporary documentary evidences in the form of FIR at Exh-41, Hospital Register Entry at Exh- 24, Police Station Register Entry at Exh-22, case history recorded by P.W.No.4 at Exh-32 and treatment papers at Exh-33, he has submitted that there is clear, cogent and convincing evidence given by trustworthy and reliable witnesses and, therefore, there is correct appreciation of the evidence by the Trial Court. Prosecution has put reliance upon FSL Report at Exh-63, scene of offence panchnama at Exh-46, postmortem note at Exh-10 and Inquest panchnama at Exh-16 provide enough corroboration to the depositions of P.W.Nos. 4, 5 and 7. No error has been committed by the Trial Court in appreciating these evidence. Lastly, it is submitted that there is no material to show that oral dying declaration is a result of product of imagination, tutoring and prompting and, therefore, this Court may not interfere with the judgment and order of conviction and sentence passed by the Trial Court. CR.A/835/2000 7/17 JUDGMENT 7. Having heard the learned counsel for both the sides and looking to the evidence on record, the offence has taken place on 22nd September,1998 at about 7:00 p.m. at Majothinangar in the city of Rajkot. Deceased Bhavnaben had married with the appellant- accused approximately 4 months prior to the date of incident. Thus, marriage life is of only four months. It appears from the deposition of P.W.No.7, who is Krushnaba Juvansinh examined at Exh-40 (mother of the deceased), there was lot of harassment caused by the appellant-accused to her daughter Bhavnaben and, therefore, she was coming at the parental house and she has staying for some time. Mother was sending back Bhavnaben at her husband's house. Looking to her deposition, on more than one occasions, there was cruelty by the husband upon Bhavnaben and, therefore, lastly when she came to parental house, relatives of the husband of Bhavnaben came to take Bhavnaben. It is stated by this witness that unless husband of Bhavnaben comes personally to take her daughter, she will not send her daughter to her husband's house. On 22nd September,1998, when this witness had gone to purchase milk, husband of Bhavnaben came along with two juvenile co-accused (daughters of his maternal uncle). The appellant-accused poured kerosene upon her and other two juvenile co-accused caught hold of Bhavnaben and appellant-accused set her on fire. Accused ran away, leaving Bhavnaben burning. She rushed out of the house in burning condition. This information was given by P.W.No.9 to CR.A/835/2000 8/17 JUDGMENT Krushnaba- P.W.No.7. Therefore, she rushed to her house, asked her daughter as to what happened and she narrated before P.W.No.7 that she was set on fire by her husband and two daughters of maternal uncle of her husband. This witness immediately took her to Civil Hospital at Rajkot. Looking to the deposition given by P.W.No.7, it appears that she was trustworthy witness. There is no reason for this Court to disbelieve this witness. Her presence in her own house is natural one. She is complainant and she has filed FIR immediately on 22nd September,1998 at Exh- 41, wherein, she has narrated the role played by the present appellant-accused. Her deposition is corroborated by several other documentary evidence viz. Exh Nos.22, 24, 32, 33, 46, 10, 16 and 63. All these documents are referred hereinbelow. Suffice it to say that this witness is trustworthy and reliable witness. There was oral dying declaration by the deceased before this witness. 8. Bhavnaben was taken by this witness i.e. P.W.No.7 at Civil Hospital at Rajkot, where Chaturbhai Dhanjibhai- P.W.No.4, who is examined at Exh-23 had asked Bhavnaben about the cause of burn injuries and she clearly stated before this P.W.No.4, who is police officer and is maintaining Register at Civil Hospital, which is known as Hospital Chowki of Rajkot City “B” Division Police Station. Before this witness, there is oral dying declaration that she was ablazed by her husband and two minor daughters of maternal uncle of her husband. This fact was reduced in writing in CR.A/835/2000 9/17 JUDGMENT Hospital Register at Exh-24. The entry was made on 22nd September,1998 at 19:55 hours. Thus, immediately after the incident, in Civil Hospital at Rajkot, there is oral dying declaration by the deceased before this P.W.No.4 and contemporary evidence in Hospital Register Entry at Exh-24. Looking to the deposition of this witness and cross-examination of this witness i.e. P.W.No.4, nothing is coming out in favour of the appellant-accused. On the contrary, this witness is an independent witness – a police witness, he has to maintain Hospital Choki Register, in such type of cases and, therefore, it is part and parcel of his duty to ask the patient about cause of burn injuries. Thus, Hospital Register entry corroborates P.W.No.4 with the oral dying declaration made by the deceased. This witness is trustworthy and reliable witness. His presence in Civil Hospital is natural one as he was performing his duty at Civil Hospital, which is known as Hospital Chowki of Rajkot City “B” Division Police Station. Thus, upto 19:55 hours, the patient was conscious and able to give answer. 9. Looking to the deposition given by P.W.No.5 i.e. Dr.Jasvantrai Shantilal, who is examined at Exh-31, who had given emergency treatment to the Bhavnaben at Civil Hospital at Rajkot. This witness had asked the patient about cause of burn injuries and it was stated by the deceased that she was set on fire by her husband and two minor daughters of maternal uncle of her husband. Looking to the deposition of this witness, he has clearly CR.A/835/2000 10/17 JUDGMENT stated that the patient was conscious. Blood pressure of the patient was also normal one. Pulse rate was also normal one i.e. respiratory system was also normal one. It is also stated by this witness that he examined Bhavnaben at 7:35 pm on 22nd September,1998. Thus, oral dying declaration made by Bhavnaben before this Doctor is also reduced in writing as case history at Exh-32 and also in treatment papers at Exh-33. There is no reason for this Doctor to falsely implicate the present appellant-accused. Bhavnaben made oral dying declaration before the independent witness i.e. Dr.Jasvantrai Shantilal – P.W.No.5. Treatment was also given by this witness. Thus, looking to the deposition of this witness as well as examination-in-chief and cross-examination, we found him trustworthy and reliable witness. Thus, third oral dying declaration was made by the deceased before this witness. Thus, the patient was conscious at 7:00 p.m. and oral dying declaration was made by the deceased at 7.00 p.m. before her mother (P.W.No.7); second dying declaration was made by the deceased at 7:35 p.m. before Dr.Jasvantrai (P.W.No.5) and third dying declaration was made by the deceased at 7:55 p.m. before police witness Chaturbhai Dhanjibhai (P.W.No.4) on 22nd September,1998. All these depositions given by these three witnesses are corroborated by documentary evidence viz, F.I.R. at Exh-41, Hospital Register Entry at Exh-24, Police Station Register Entry at Exh-22 and case history recorded at Exh-32 and recording made CR.A/835/2000 11/17 JUDGMENT about the reason of burn injuries in the treatment papers at Exh-33. Thus, looking to these deposition given by P.W.Nos. 4, 5 and 7, no error has been committed by the Trial Court in believing the fact that because of cogent, convincing, reliable and trustworthy evidence, prosecution has proved the offence beyond reasonable doubt as oral dying declarations were made by deceased Bhavnaben before these three witnesses. Once oral dying declaration is found trustworthy and reliable, there is no need of any corroboration. Corroboration is rule of prudence. If there is any doubtful circumstance, then, corroboration is required. Looking to the evidence on record, all these three witnesses have categorically and consistently stated that deceased Bhavnaben had stated before these three witnesses that the present appellant had ablazed her with help given by two juvenile co-accused, as stated hereinabove. There is enough corroboration to these depositions by FIR, Hospital Register Entry, Police Station Register Entry, Case history recorded at Exh-32 and treatment papers at Exh-33. Likewise, there is also corroboration by scene of offence panchnama proved by Ibrahim Ismail P.W.No.9, who is examined at Exh-45. Scene of offence panchnama provides corroboration to the deposition given by P.W.No.7. Likewise, postmortem note at Exh-10 also reveals that Bhavnaben had expired due to burn injuries, as per column no.23 of the postmortem note. Postmortem was performed by Dr.Bharatbhai - P.W.No.1, who is examined at Exh-9. There were 95% of burns of second and third degree. Postmortem was performed on 23rd CR.A/835/2000 12/17 JUDGMENT September,1998. Looking to the Inquest panchnama at Exh-16, which is proved by Jivanbhai Dhulabhai (P.W.No.10), examined at Exh-53 also provides corroboration to the deposition given by P.W.Nos. 4, 5 and 7. 10. It was vehemently submitted by learned counsel for the appellant that dying declaration is not recorded in the words of the deceased, therefore, it is not reliable. This contention is not accepted by this Court mainly for the reason that the case of the prosecution is not based upon written dying declaration. As stated hereinabove, P.W.No.7 (mother), P.W.No.5 (Doctor) and P.W.No.4 (police at Civil Hospital) are three witness, before whom, the deceased had stated the fact that she was set on fire, by her husband and by two minor daughters of maternal uncle of her husband, chronologically at 7 p.m., 7:35 pm and lastly at 7:55 pm on 22nd September,1998. Thus, there witnesses are the witnesses, who directly asked the deceased about the cause of her burn injuries and as stated hereinabove, they are trustworthy and reliable witnesses. We have no reason to disbelieve these oral dying declarations made by the deceased before her mother- P.W.No.7 and two independent witnesses viz- one is police witness and another is Doctor, who are examined as P.W.Nos. 4 and 5 respectively. There is no material to show that the dying declaration was result of product of imagination, tutoring and prompting. What is stated by these witnesses is also getting CR.A/835/2000 13/17 JUDGMENT corroboration from documentary evidences. Dying declaration can be sole basis of conviction, even without corroboration. If it is found to be true, reliable, trustworthy and inspires confidence and free from any infirmity, imagination, tutoring and prompting, corroboration is not required, but, in the facts of the present case, there is enough corroboration as stated hereinabove and, therefore, arguments canvassed by learned counsel for the appellant that dying declarations were not recorded in the words of the deceased and, therefore, dying declaration is not reliable, is not helpful to the appellant-accused because the prosecution is not relying upon any written dying declaration. 11. Learned counsel for the appellant submitted that it was doubtful whether the patient was conscious when the case history was registered at Exh-32 and 33 and Hospital Register entry at Exh-24 was registered by P.W.No.4. This contention is not accepted by this Court looking to the deposition given by P.W.No.4 and 6 and documentary evidences at Exh-32 and 33. Looking to the overall evidence before the Trial Court, it appears that the incident has taken place on 22nd September,1998 at 7:00 p.m.. At that time, she was conscious and she made oral dying declaration before P.W.No.7 (mother). Thereafter, she was taken to Civil Hospital at Rajkot and at 7:35 p.m. before Doctor (P.W.No.5), she made another oral dying declaration, which is a consistent one. This doctor has stated in his deposition that Blood pressure and pulse CR.A/835/2000 14/17 JUDGMENT rate was normal and the patient was conscious. This has been reduced in writing in the case papers of deceased Bhavnaben as case history (Exh-32). It has been recorded that husband of the Bhavnaben had set her on fire. Likewise, P.W.No.4 also recorded in Hospital Register Entry (Exh-24), the present appellant set Bhavnaben on fire. Looking to the deposition given by P.W.No.6 that at 8:40 pm on 22nd September,1998, the patient was conscious and, therefore, yadi was sent for recording dying declaration by the Executive Magistrate. This police yadi was received by Executive Magistrate at 8:55 pm on 22nd September,1998 and when Executive Magistrate came for recording dying declaration, the endorsement was made by P.W.No.6 that the patient is unable to give answer and, therefore, dying declaration was not recorded by Executive Magistrate. Looking to this deposition of P.W.No.6, it appears that condition of patient was deteriorating from 8:55 pm and, ultimately expired at 4:40 a.m. on 23rd September,1998. Looking to this deposition and documentary evidence at Exh-32 and 33, looking to the deposition of P.W.Nos.4, 5, 6 and 7, the patient was conscious when she made oral dying declarations before P.W.Nos.4, 5 and 7. Exh-32 case history was recorded by P.W.No.5- Dr.Jashwantrai Shantilal, who gave emergency treatment. Exh-32 is indoor case papers. Thereafter, Bhavnaben was shifted to burns ward. Further treatment is recorded at Exh-33. P.W.No.5 and P.W. No.6 are the Doctors, who treated Bhavnaben therefore, two types handwritings are there in Exh-33. CR.A/835/2000 15/17 JUDGMENT 12. It has been held by Hon'ble Supreme Court in the case of Balbir Singh & Anr. V/s. State of Punjab reported in AIR 2006 SC 3221 in para 19, reads as under: “19. The law does not provide that a dying declaration should be made in any prescribed manner or in the form of questions and answers. Only because a dying declaration was not recorded by a Magistrate, the same by itself, in our view, may not be a ground to disbelieve the entire prosecution case. When a statement of an injured is recorded, in the event of her death, the same may also be treated to be a First Information Report.” 13. It has been held by Hon'ble Supreme Court in the case of State of Karnataka V/s. Shariff reported in AIR 2003 SC 1074 especially in paras 21 and 24, read as under: “21. It is true that PW 11 and PW 14 were Police personnel and a Magistrate could have been called to the hospital to record the dying declaration of Muneera Begum, however, there is no requirement of law that a dying declaration must necessarily be made to a Magistrate. In Bhagirath v. State of Haryana, AIR 1997 SC 234 on receiving message from the hospital that a person with gun shot injuries had been admitted a head constable rushed to the place after making entry in the police register and after obtaining certificate from the doctor about the condition of the injured took his statement for the purposes of registering the case. It was held that the statement recorded by the head constable was admissible as dying declaration. Similar view was taken in Munnu Raja and Anr. v. State of Madhaya Pradesh, 1976 (2) SCR 764, wherein the statement made by the deceased to the investigating officer at the police station by way of First Information Report, which was recorded in writing, was held to be admissible CR.A/835/2000 16/17 JUDGMENT in evidence. [1996 AIR SCW 4406 : 1997 Cri LJ 81 AIR 1976 SC 2199 : 1976 Cri LJ 1718] 24. We are a little surprised that the High Court took the view that having regard to the nature of injuries sustained by the deceased she could not have been in a position to make a statement. PW12 Dr.K.M.Nagabhushan clearly recorded in the Accident Register that the patient was conscious, her orientation was good and that she answered well to the questions. He also noted that her pulse was 86/minute, CVS/RS was NAD. PW 5 Dr. Rangarajan before whom the statements of the victim were recorded by PW 11 and PW 14 on 24th and 26th July, 1986 respectively deposed that she was able to speak. He clearly stated that it is not true that the victim was not in a condition to make statement or that she was unconscious. In view of this clear statement of the Doctor that the victim was in a position to make a statement, the High Court, in our opinion erred in discarding the dying declarations merely on the basis of her injury report and post-mortem examination report. PW4 Dr.K.H.Manjunath who had performed the post mortem examination, had merely stated that he was not in a position to say if the victim was in a position to talk after sustaining the injuries and till she died. The last ground given by the High Court is regarding the language spoken by the deceased. PW 5 Dr.Rangarajan has stated in paras 2 and 3 of his statement that the victim was answering in Kannada language in which language her statement was recorded by PW 11 and PW 14. We are therefore of the opinion that the view taken by the High Court is wholly perverse and also contrary to settled principles of law and therefore cannot be sustained.” (Emphasis supplied) No error has been committed by the Trial Court in convicting the appellant-accused for the offence of murder of Bhavnaben. CR.A/835/2000 17/17 JUDGMENT 14. As a cumulative effect of the aforesaid reasons, we see no reason to take any deviation from the conclusion arrived at by the Trial