IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No 19 of 1991 For Approval and Signature: Hon'ble MR.JUSTICE S.M.SONI and MR.JUSTICE J.R.VORA ============================================================ 1. Whether Reporters of Local Papers may be allowed to see the judgements? 2. To be referred to the Reporter or not? 3. Whether Their Lordships wish to see the fair copy of the judgement? 4. Whether this case involves a substantial question 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 Civil Judge? -------------------------------------------------------------- ISHWARLAL LILADHAR BHOI Versus THE STATE OF GUJARAT -------------------------------------------------------------- Appearance: MR RM CHHAYA FOR MR ND NANAVATI for Petitioner MR KP RAVAL, APP, for Respondent No. 1 -------------------------------------------------------------- CORAM : MR.JUSTICE S.M.SONI and MR.JUSTICE J.R.VORA Date of decision: 18/04/98 ORAL JUDGEMENT(Per S.M.Soni, J.) The appellant, accused in Sessions Case No.115/89 is held guilty for the offence punishable under section 302 of the Indian Penal Code and is sentenced to undergo life imprisonment by the judgment and order of the Additional Sessions Judge, Junagadh of 19th December 1990. The appellant ('accused' for short) was charged under section 302 of Indian Penal Code for committing murder of his wife Manguben by putting her on fire after sprinkling kerosene on her at about 11 O'clock night on 9th October, 1989. Facts, in short, of the prosecution case are as under: Deceased Manguben was married with the accused and have 5 children out of that wedlock. The eldest child, a daughter, appears to be of about 9 years on the date of incident. On the date of incident, two of her daughters had gone to play 'Garba' and one daughter had remained with her. Her one son and daughter were residing at Bombay with her father. Accused had left two of his daughters to play in 'Garbi' and had returned home by about 11 O' clock night. When accused returned home, deceased was sleeping. Accused then inquired as to why is she sleeping and she replied that as she is tired, she had slept. Accused then told her that "allright, you may go and sleep" and she slept. After some time, accused took a tin which contained kerosene and poured the kerosene on the deceased and ignited her. After igniting, the accused came out of the house and chained the house from outside and ran away. Neighbourers on hearing shouts rushed to spot and opened the door and fire was extinguished by covering her with quilt and other clothes. Neighbours though gathered, no one removed her to hospital. However, one social worker removed her to Junagadh Civil Hospital. Junagadh Civil Hospital then sent yadi to City Police Station and the Police Sub-Inspector, Junagadh on reaching the Junagadh Civil Hospital recorded her complaint. Thereafter, the Executive Magistrate was called, who also recorded her dying declaration. Offence was registered and investigation was started. On completion of the investigation, chargesheet was submitted against the accused in the Court of Chief Judicial Magistrate, Junagadh, who in his turn committed the case of the accused to the Court of Sessions, as the charges were exclusively triable by the Court of Sessions. The learned Additional Sessions Judge framed charge against the accused. The accused pleaded not guilty and claimed to be tried. The prosecution led necessary evidence. The learned Judge after hearing the parties held the accused guilty of offence punishable under section 302 of the Indian Penal Code and passed the order of conviction and sentence as referred above. This judgment and order is under challenge in this appeal. Learned advocate Mr R.M.Chhaya, appearing for the appellant, has challenged the conviction on the grounds, namely, that the prosecution has failed to prove the guilt of the accused beyond reasonable doubt, that the learned Addl. Sessions Judge has erred in accepting the dying declaration Ex.16 as well Ex.26 and also Ex.35. Mr Chhaya has contended that all the witnesses of prosecution are either partisan or interested one and in absence of any independent corroboration, learned Judge has erred in accepting their evidence. Mr Chhaya further contended that the dying declaration Ex.16 is highly suspicious piece of document and should not have been relied upon by the learned Judge. The learned Judge has also erred in seeking corroboration from such piece of evidence like Ex.16 which is a weak piece of evidence to other evidence which, according to him, are also weak pieces of evidence. Mr Chhaya contended that the case is based on circumstantial evidence and the chain is not complete to lead to an inference of hypothesis of guilt of the accused. Mr Chhaya contended that the circumstances on record based on evidence on record lead to an inference that the deceased has committed suicide and the accused is not responsible for the same. He has, therefore, contended that the appeal should be allowed and the accused should be acquitted and set at liberty forthwith. Mr K.P.Raval, learned APP, supports the judgment under appeal. Mr Raval contended that the incident took place at night hours in the house of the deceased and except neighbours and some relations, no other witnesses would be available and unfortunately the witnesses being relatives or acquainted as neighbours to the accused have not come forward to support the prosecution case. He contended that whoever witnesses were available are examined and they cannot be said to be either partisan or interested witnesses. Mr Raval contended that there are as many as three dying declarations in the instant case, namely, Ex.16, Ex.26 and Ex.35 and they are all supporting each other. Mr Raval further contended that the circumstances relied on by the learned Judge do make a complete chain and it leads to an inference of hypothesis of guilt of the accused. Mr Raval, therefore, contended that the appeal should be dismissed. To appreciate the diverse contentions raised by the learned advocates, it will be relevant to refer to the evidence of one Ashwin Maniar, PW 5, who carried the victim to the hospital. PW 5 has stated that on the day of incident by about 11 O' clock at night, he was going towards Vanjari chowk from Panchhatdi chowk. When he reached near Old Masjid area, he saw a mob of about 100 to 150 persons. He was informed that a woman is burnt and no one is prepared to help her. He, therefore, parked his motor-bike on the side and asked someone to call for a rickshaw. There, he found one woman lying on the threshold of the house with some part of body in the house and head lying on the side of the threshold. The injured was craving for water. She was covered with a carpet. She was then removed in a rickshaw and someone from the mob was requested to accompany her to the Civil Hospital. He then followed them on his motor-bike to Civil Hospital and he got her admitted in the hospital. Doctor on admission in the hospital, asked her name and she disclosed as Manguben. Doctor asked him to get the case papers issued and his name was referred as a person who brought the injured in the hospital. PW 5 is cross-examined and he has admitted in the cross-examination that because of burn injuries, the lady was shouting and because of pain she was replying slowly after understanding the questions put by the doctor. Thus from the evidence of PW 5, it is clear that the deceased was removed to the hospital by him and in his presence, Doctor did ask her something which she was replying after understanding the same. After she being admitted in the hospital, she was examined by Dr.Makwana. Unfortunately, though Dr. Makwana had played a very important role to disclose the prosecution story, yet he was not examined before the Trial Court. The learned advocate Mr Chhaya contended that the doctor who first examined her at the time of admission in the hospital was not examined and therefore adverse inference must be drawn. Mr Chhaya contended that adverse inference should be drawn to the effect that she was not fully conscious and able to answer any of the questions rationally. Dr.Makwana has prepared the case papers at the time of her admission. Dr.Makwana is alleged to have certified the dying declaration to the effect that the patient is conscious during recording of dying declaration till completion of the same. Despite this fact, Dr.Makwana was not examined as a witness to prove the aspects about the consciousness of the patient and her ability to understand the questions that might be put despite the stress and pain. The learned APP then has filed an application being Criminal Misc. Application No.685/98 before this Court to allow them to lead additional evidence of Dr.Makwana. After hearing the parties, the said application was allowed and Dr.Makwana is examined by this Court. As Dr.Makwana was examined, further statement of the accused under section 313 of the Code of Criminal Procedure 1973 ('Code' for short) was also recorded. In the course of his further statement, the accused expressed desire to examine his daughter as defence witness and she is also examined before this Court. In the course of examination of Dr.Makwana as well as defence witness Hetalben, daughter of the accused, the accused was allowed to remain present before this Court and he has remained present before this Court. At the first time on 16th March, 1998 when Dr.Makwana was examined before this Court, accused was not present before this Court. However, his advocate had cross-examined the doctor. On 23rd March, 1998, when further statement of the accused was recorded, to rectify the irregularity, if any, that the accused was not present when Dr.Makwana was examined, this Court recalled Dr.Makwana and he was further cross-examined by his advocate in presence of the accused. Dr.Makwana in his evidence has stated that on 9th October, 1989, by about 11.50 at night, Manguben Ishwarlal was admitted in the hospital for treatment. On examination, it was found that she had burn injuries on her body. On inquiry, the cause of burns as stated by her is that she is burnt by her husband. Accordingly, he has made an entry in the case papers. The injured was fully conscious at that time. She was given necessary treatment and he then informed the police that the dying declaration may be recorded. She was then removed to Burns Ward from Emergency Ward. Dr.Makwana has further stated that after an hour of his intimating the police, Mamlatdar/Executive Magistrate had come to the hospital with yadi and he was asked to accompany him as he told him that dying declaration of Manguben was to be recorded. Dr. Makwana had accompanied him to the Burns Ward. The Mamlatdar had asked Dr.Makwana whether the injured Manguben is conscious or not. On preliminary inquiry and interrogating the injured, he had replied that the patient is conscious and is in fit state of mind to reply. Except the patient, Mamlatdar and himself (doctor), there was none in the ward. All the relations of the patient were removed out of the ward till the dying declaration was completed. He was present till the completion of recording of dying declaration. The patient was conscious from the beginning till the end of recording of dying declaration. He has put an endorsement to the effect that the injured put her thumb mark in his presence. The witness has stated in the cross-examination that the time when the patient was brought to the hospital is not stated in Ex.35. He further stated that such patient is normally given intravenous drip and antibiotics and Manguben was given intravenous drip by performing venesection on her leg. Manguben was given injection pentojosin, a pain killer. The witness has cleared that the same was given after dying declaration was recorded. The witness has stated that a note is made in Ex.35 accordingly. The witness has stated that all the instructions stated in Ex.35 which would be part of Ex.36 must have been carried out. Under the provisions of section 114 of the Evidence Act, all the officials act are presumed to have been regularly performed. If the defence wants to suggest that the said instructions in Ex.35 have not been followed, to rebut the presumption, the defence was required to place something on record on the basis of which it can be said that presumption is rebutted. In the instant case, from the cross-examination of this witness Dr. Makwana nothing transpires from which one can say that the presumption of officials acts being regularly performed is rebutted. Thus when doctor says that pain-killer pentajosin was given after recording of dying declaration, it is required to be accepted in absence of any material on record. The doctor has assigned the reason why the said pain-killer injection was required to be taken after recording the dying declaration. Doctor has said that the same is given after recording of dying declaration because it has a sedative effect. The doctor has also denied any mental effect on victim by intravenous drip or antibiotic. Based on this evidence, when Doctor has stated before the Court and has also endorsed the dying declaration that the patient was conscious, we do not find any reason to disbelieve the same. The defence has not been able to place any material on record which may entitle us to disregard this say of the doctor that the patient was conscious when dying declaration was recorded. Keeping the above evidence of Dr. Makwana in mind, we will now refer to Ex.35, the case papers. The said papers are of Manguben Ishwarbhai, aged about 25 years. In the column of diagnosis, it is stated that "patient gave h/o (history of) burns by her husband. On examination, patient is conscious. 1st and IInd degree burns all over body on her. Pulse 90/125, blood pressure 100/80, temperature normal". In the margin of caption date, it is mentioned that "informed police and DD". Ex.36 are the case papers of ward where on the reverse of it some comments are made about pulse. In case paper Ex.35, it is specifically mentioned the prescription pentajosin (after dying declaration). The patient was brought immediately in the hospital by PW 5 and Dr.Makwana has examined her. As it is normally asked about the history of injuries, Dr. Makwana has asked the history of injuries in the present case also and the patient has replied that she was burnt by her husband. It is very clear from the evidence of PW 5 that though a mob of about 100 to 150 persons gathered, no one from the mob was prepared to take her to hospital. One can assume that in the mob many of the residents of that very locality must have been there. Yet no one has shown any humanitarian approach and taken the injured to hospital. It is only PW 5 who was simply a passerby has taken her to hospital. We are referring this aspect for the reason that PW 5 is not known to the injured nor he knows the injured. But he has carried the injured to the hospital in the name of humanity. It is nowhere suggested in the cross-examination of PW 5 that PW 5 has any acquaintance in any form either with the injured or with her husband or any of the relations. Thus it is clear on reading of evidence of PW 5 and Dr.Makwana that on inquiry by doctor, the injured was able to understand the question and reply the same and accordingly on inquiry by Dr.Makwana, she has replied that she was burnt by her husband. We do not find any reason to disbelieve this part of evidence of Dr.Makwana. Simply because Dr. Makwana was not examined initially and is examined at the appellate stage, does not taint his evidence in any manner whatsoever more particularly when he is deposing on the basis of the case papers. This will now bring us to another circumstance of a statement made before the Police which also amounts to a dying declaration. Dr.Makwana immediately on examination of the patient and preparing case papers and prescribing medicines has written a yadi to Police Inspector, Junagadh City Police Station. That yadi is at Ex.13-A. In that yadi also Doctor has stated that dying declaration is required to be taken. The injured was removed to the hospital after the incident which took place at 11 O'clock at night. No doubt, time of entry in the hospital in case paper Ex.35 is not stated. But time is stated when the patient was removed to burns ward and it appears to be at 11.50 p.m. on that very day. We can say that Dr.Makwana must have transferred the patient to burns ward and must have simultaneously written yadi to the Police Station. The police on receiving yadi has immediately reached to the hospital and has recorded her statement, Ex.26. Ordinarily this statement would not be admissible in evidence being a statement under section 162 of the Code as the yadi sent by the doctor would amount to an information disclosing cognizable offence. However, the same is admissible in evidence under the provisions of section 32 of the Evidence Act. PSI Rangalsing, PW 10, on receipt of that yadi has immediately rushed to the hospital where it seems that he reached at 00.20 hours of 10th October, 1989. Looking to the time mentioned in the case paper of burns ward, it can be said that PW 10 reached earliest in the hospital. PW 10 has stated that he went to burns ward. He further stated that "in burns ward Manguben was there. She was in burnt condition. I talked with Manguben. She was fully conscious and she gave complaint in his presence which is Ex.7/1. The same was read over to her and her thumb mark was taken below it as she was not able to sign as both her hands were burnt". Recording of complaint was over by 12.40, meaning thereby, 00.40 hours and one Anil Premji, PW 6, has identified her thumb mark. It will be relevant to state that when PW 10 recorded the complaint, Dr. Makwana was not present there. But PW 10 has talked with her and after he found that she is fully conscious, he has recorded the complaint. Keeping this in mind, we will now refer to his cross-examination. He has stated that he did not know Manguben either personally or by name before the incident. However, he got introduction of Manguben from nurse on duty. He has denied that some of the relations were there near the cot of Manguben. When he reached the hospital, treatment of Manguben was going on. He has stated that he had realised that Manguben was suffering from pain. Looking to the injuries of Manguben he had not doubted that she may die. When he started recording complaint, he found that the condition of Manguben was serious. He has stated that he did not find it necessary to get certificate from the doctor that she will be able to answer the questions on understanding as she was fully conscious. An attempt was made by the defence to show that there is some manipulation about the timing of entry of the injured in the hospital recording of statement by the police and recording of dying declaration by the Executive Magistrate. This argument is founded on one over-writing in Ex.27. At the bottom of Ex.27, below date 10.10.89, 0.50 hour is written. Below the date and time, there is signature of PSO of Junagadh City. Ex.27 is a complaint and it is admitted in the register on 10th October 1989 at 0.50 hours. In this writing, 0 of 10 of the date and 0 of hour 0.50 are over-written. We have made an attempt to see what was the original writing and we found that the original writing was 9th October, 1989 and hours 1.00. Thus 9 is corrected to 10 by overwriting 9 to 0 and 1.00 is corrected to 0.50 by correcting 1 to 0. The injured was admitted in the Burns Ward at 11.50. Dr.Makwana has communicated to the Junagadh Police Station by yadi Ex.13-A. On receipt of yadi, PSI, Rangalsing, PW 10, has reached the hospital and has recorded the complaint and sent it to the Police Station for registering the same. It is not known as to what is the distance between the Junagadh Civil Hospital and the Police Station. The complaint is registered at 0.50 hours in the Police Station. Assuming that the original writing of 1.00 hours is correct, then it can be said that the complaint was registered in the Police Station at 1.00 a.m. early morning, 10 minutes after as recorded by the Police. But this entering of complaint in the FIR in our opinion, be it 0.50 hours or be it 1.00 hours does not in any manner affect much less adversely to the case of the prosecution. Thus, his cross-examination, in our opinion is of no significance. It is clear from the evidence of PW 10 that when he reached the hospital, he had gone to the victim on being identified by the nurse on duty, recorded her statement, which was treated as a complaint and was sent to the Police Station for registering offence. Dr.Makwana has written a yadi to the Police Station, but has also simultaneously stated below the yadi that dying declaration is required to be taken and accordingly necessary communication was sent to the Executive Magistrate to record dying declaration. We will now further test about the timing from the evidence of the Executive Magistrate. When Junagadh City Police Station received yadi from Dr.Makwana, it appears that they have simultaneously communicated to the Executive Magistrate to go to the Junagadh Civil Hospital to record the dying declaration of Manguben. The Executive Magistrate has immediately reached the Civil Hospital. The Executive Magistrate, PW 1, has stated that on receipt of the yadi, he immediately reached the Civil Hospital. From yadi he learnt that Manguben is admitted in burnt condition and her dying declaration is to be recorded. He carried with him the doctor on duty to Burns Ward. From there he directed the police personnel and relations of Manguben to go out of the ward. We may state at this juncture that when the Executive Magistrate reached the Hospital, the Police has already reached the hospital and Police was attending Manguben. The Executive Magistrate asked the police personnel and relations to go out. The doctor then examined Manguben and she was found conscious and he started recording her dying declaration at 0.45 hours. He first asked her name and he recorded the dying declaration in question and answer form. PW 1 in his cross-examination has denied to have seen that the Police was recording her statement when he reached the Burns Ward. According to the evidence of PW 1, both the palms, thumbs and fingers of Manguben were burnt. This witness has denied that she was semi-conscious when her statement was recorded. He has denied that Manguben had pain and was sighing. Thus we do not find anything from the evidence of PW 1 to infer any irregularity in recording dying declaration of Manguben which would entitle the rejection of the same. Taking of Manguben and admitting her in the hospital by PW 5, her examination on admission in the hospital by Dr.Makwana, prescribing necessary treatment after inquiring about the injuries, intimating the Police Station about the incident simultaneously with a request to record dying declaration, Junagadh City Police responding immediately to the yadi of Dr.Makwana and PSI reaching the hospital and simultaneously informing the Executive Magistrate to record dying declaration and recording of complaint and then of dying declaration, in our opinion, are in a proper sequence which does not overlap either of the incident to damage the other. If the timings of registering complaint in