IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 691 of 1996 For Approval and Signature: HON'BLE MR.JUSTICE J.M.PANCHAL and HON'BLE MR.JUSTICE D.P.BUCH ============================================================ 1. Whether Reporters of Local Papers may be allowed : YES to see the judgements? 2. To be referred to the Reporter or not? : NO 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? -------------------------------------------------------------- HEMTAJI MANCHHAJI MARWADI & ANR. Versus STATE OF GUJARAT -------------------------------------------------------------- Appearance: 1. Criminal Appeal No. 691 of 1996 MR HN JHALA, Sr.Adv. with MR YV VAGHELA for Appellants MR SUDHANSHU S PATEL, APP for Respondent -------------------------------------------------------------- CORAM : HON'BLE MR.JUSTICE J.M.PANCHAL and HON'BLE MR.JUSTICE D.P.BUCH Date of decision: 30/06/2004 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 July 5, 1996 rendered by the learned Additional City Sessions Judge, Court No.10, Ahmedabad, in Sessions Case No.43 of 1995 by which the appellants are convicted of the offences punishable under Sections 302, 452 read with 114 of Indian Penal Code ("IPC" for short), and sentenced to suffer R.I. for life for having committed offence punishable under Section 302 IPC as well as R.I. for one year and fine of Rs.200=00, in default, R.I. for one month for having committed offence punishable under Section 452 IPC. It may be stated that the learned Judge has directed that the substantive sentences shall run concurrently. 2. Deceased Divaben alias Divaliben, wife of Bhomaji Markaji, was residing with her husband, brother-in-law and two children in the area known as `Somnath Bhodar No Aro', Jamalpur, Ahmedabad. The appellants were also residing in a hut in the same area. It may be stated that the deceased and her husband as well as the appellants are Marwadi by caste. One Pepiben, wife of Masharaji Marwadi, who is also residing in the neighbourhood, had told the appellant No.2 that she was moving around with her husband and was flirting with him. On inquiry being made by the appellant No.2 as to who had given such information to her, Pepiben had replied that the information was given by deceased Divaben. Thereupon, a quarrel had ensued between the appellants and Pepiben wherein Pepiben was assaulted by the appellants. However, no complaint regarding the incident of assault on Pepiben was filed as they were of the same caste. The incident in question had taken place on November 18, 1994. On that day, the deceased was cooking food in her house at about 7.00 a.m. whereas her husband and brother-in-law had gone to the market and two young children were playing in the neighbourhood. When the deceased was cooking food, the appellant No.2 in the company of the appellant No.1 had come to the house of the deceased and started hurling abuses at her. The grievance made by the appellant No.2 was that the deceased was a cunning lady and had defamed the appellants by informing Pepiben that the appellant No.2 was flirting with the husband of Pepiben. After abusing the deceased, the appellant No.1 had picked up a kerosene can lying in the house of the deceased and poured the same on Divaben whereas the appellant No.2 had picked up a burning firewood from hearth and set clothes of the deceased on fire. Within no time, the deceased was engulfed in fire. She had raised cries for help as a result of which, the appellants had run away whereas neighbours had collected in the house of the deceased. The women collected had poured water on the deceased to put out the fire. Bhomaji Markaji, who was husband of the deceased, was informed about the incident when he was at the market, and on learning about the incident, had rushed back home. In the meantime, some one had sought help of ambulance and on arrival of ambulance van, Divaben was removed to V.S.Hospital for treatment. In view of severe burn injuries sustained by her, the deceased was admitted as an indoor patient in the Burns Ward of the hospital at about 10.27 a.m. At about 10.55 a.m., a message was sent from V.S.Hospital to Gaekwad Haveli Police Station mentioning that Divaben Bhomaji Marwadi had received burn injuries at the hands of her neighbour Dipuben Hemtaji (the appellant No.2). On receipt of the message, PSI Mr.M.K.Paramar had gone to the hospital and visited Burns Ward where the deceased was being treated. He had asked the doctor on duty to state whether the deceased was conscious. The doctor had informed PSI Mr.Parmar that the deceased was conscious and able to speak. In view of the state of affairs of the deceased, as informed by the doctor, PSI Mr.Parmar had addressed a Yadi requesting Executive Magistrate to do the needful for recording dying declaration of the deceased. At the bottom of Yadi, an endorsement was obtained from the doctor to the effect that the deceased was conscious. On receipt of Yadi, Mr.Nanjibhai Karamshibhai Patel, who was then discharging duties as Deputy Mamlatdar in the office of City Mamlatdar, had gone to V.S.Hospital at about 12.15 p.m. for the purpose of recording dying declaration of the deceased. Mr.Patel had gone to the Burns Ward of the hospital, and after ascertaining that the deceased was conscious and in a fit state of mind to make a statement, had recorded dying declaration of the deceased as narrated by her. Meanwhile, Jivanbhai Vastabhai Desai, who was then Police Inspector of Gaekwad Haveli Police Station, had also gone to the V.S.Hospital in view of the message which was received earlier indicating that the deceased was burnt by the appellant No.2. PI Mr.Desai had also gone to Burns Ward of the hospital and after ascertaining that the deceased was conscious and in a fit state of mind to make a statement, had recorded her complaint as narrated by her. On the basis of the complaint of the deceased, offences were registered and further investigation into the said complaint was made by PI Mr.Desai. PI Mr.Desai had drawn panchnama of place of occurrence and taken into custody certain incriminating articles. The Investigating Officer had requisitioned services of officers of Forensic Science Laboratory and arrested the appellants. Further, the Investigating Officer had recorded the statements of those persons who were found conversant with the facts of the case. The deceased succumbed to her injuries on November 20, 1994 and, therefore, inquest on the dead body was held by PI Mr.Desai. On the same day, the offence under Section 302 IPC was registered against the appellants and further statements of witnesses were recorded. The Investigating Officer had also made necessary arrangements for sending dead body of the deceased for autopsy. The incriminating articles, which were seized during the course of investigation, were sent to Forensic Science Laboratory for analysis. After obtaining necessary reports and on completion of investigation, the appellants were chargesheeted of the offences punishable under Sections 302, 452, 307, 294 read with 114 IPC in the Court of learned Metropolitan Magistrate, Court No.12, Ahmedabad. As the offences punishable under Sections 302 and 307 are exclusively triable by a Court of Sessions, the case was committed to the City Sessions Court, Ahmedabad, for trial where it was numbered as Sessions Case No.43 of 1995. 3. The learned Additional City Sessions Judge, Ahmedabad, to whom the case was made over for trial had framed charge against the appellants at Exh.3 of the offences punishable under Sections 452, 307, 302, 114 IPC. The charge was read over and explained to the appellants, who had pleaded not guilty to the same, and claimed to be tried. The prosecution had, therefore, examined, (1) Dr.Dilip Manubhai Desai, P.W.-1 at Exh.7; (2) Pradhan Visabhai Dantani, P.W.-2 at Exh.10; (3) Bhomaji Markaji, P.W.-3 at Exh.12; (4) Samnaram Markaji, P.W.-4 at Exh.13; (5) Jatnaben Chhaganlal, P.W.-5 at Exh.14; (6) Pepiben Masraji, P.W.-6 at Exh.15; (7) Durgaprasad Sahdev Kahar, P.W.-7 at Exh.16; (8) Vikramsinh Banaji Solanki, P.W.-8 at Exh.18; (9) Vishnuprasad Manilal Pandya, P.W.-9 at Exh.24; (10) Mithabhai Kacharabhai Parmar, P.W.-10 at Exh.26; (11) Nanjibhai Karamshibhai Patel, P.W.-11 at Exh.29; (12) Jivanbhai Vastabhai Desai, P.W.-12 at Exh.33; and, (13) Dr.Tushar Bipinchandra Soni, P.W.-13 at Exh.42, to prove its case against the appellants. The prosecution had also produced documentary evidence such as; postmortem notes of the deceased at Exh.8, inquest report at Exh.9, map of scene of incident at Exh.11, panchnama of place of occurrence at Exh.17, report of analysis, entry from diary maintained at the Police Station at Exh.25, yadi sent to the Executive Magistrate for recording dying declaration at Exh.28, dying declaration recorded by the Executive Magistrate at Exh.31, complaint of the deceased recorded by PI Mr.Desai at Exh.34, medical papers from the hospital indicating as to how the deceased was treated and what was her condition during the relevant time, etc. in support of its case against the appellants. 4. After recording of evidence of the prosecution witnesses was over, the learned Judge had explained to the appellants the circumstances appearing against them in the evidence of prosecution witnesses and recorded their further statements as required by Section 313 of the Code of Criminal Procedure, 1973. In their further statements, the case of the appellants was that they were innocent and were falsely implicated in the case. However, none of the appellants had examined himself/herself on oath nor any witness was examined by any of them to substantiate the defence mentioned in their further statements. 5. On appreciation of evidence adduced by the prosecution, the learned Judge held that it was proved by the prosecution that deceased Divaben @ Divaliben had met with a homicidal death. According to the learned Judge, the deceased was conscious and in a fit state of mind to make a statement, as a result of which, her dying declaration, which was recorded by the Executive Magistrate, and her complaint, which was recorded by PI Mr.Desai, were trustworthy. What was noticed by the learned Judge was that the deceased had no motive or cause to implicate the appellants falsely in the case and though there were more than one dying declarations on record, they were consistent with each other, and it was safe to act upon them. In view of abovereferredto conclusions, the learned Judge further held that it was proved by the prosecution that the appellants had committed criminal trespass in the hut of the deceased with an intent to make an attack on her life and the appellant No.1 had poured kerosene over her whereas the appellant No.2 had set clothes of the deceased on fire by burning firewood as a result of which, the deceased had died and, therefore, the appellants were liable to be convicted of the offences punishable under Sections 302, 452 read with 114 IPC. On the basis of these conclusions, the learned Judge has convicted the appellants under Sections 302, 452 read with 114 IPC and imposed the sentences on the appellants which are referred to earlier by judgment dated July 5, 1996, giving rise to instant appeal. 6. Mr.H.N.Jhala, learned Senior Advocate assisted by Mr.Y.V.Vaghela, learned counsel, of the appellants, contended that neither the dying declaration was recorded by the Executive Magistrate Mr.Patel in presence of doctor nor the complaint was recorded by PI Mr.Desai in presence of doctor, nor any certificate was obtained by either Mr.Patel or Mr.Desai to the effect that the deceased was conscious and in a fit state of mind to make a declaration though the doctor was very much available and, therefore, it was hazardous to base the conviction of the appellants on the basis of those dying declarations. The learned counsel pointed out that endorsement made on Exhs.28 & 30, which are Yadis sent by PSI and PI respectively to the Executive Magistrate requesting him to record dying declaration bear endorsement to the effect that the patient was conscious, but this does not satisfy the requirement of law, namely, that the dying declaration must bear the endorsement of medical officer to the effect that the declarant was conscious and in a fit state of mind to make a statement and, therefore, those dying declarations should not have been relied upon by the learned Judge. What was asserted was that the medical papers on record establishes that on November 18, 1994, the deceased was drowsy whereas her general condition was poor and pulse rate was above normal and, therefore, it was highly improbable that the deceased had made dying declaration as claimed by the Executive Magistrate or lodged detailed complaint as asserted by PI Mr.Desai and, therefore, the two dying declarations should not have been relied upon by the learned Judge for recording conviction of the appellants. It was argued that the deceased had sustained 100% burns of second degree and, therefore, the two dying declarations should not have been acted upon more particularly when there was absence of any endorsement by the medical officer to the effect that the deceased was conscious and in a fit state of mind to make a statement. According to the learned counsel of the appellants, morphine injection was administered to the deceased to minimise the pain which was bound to cause drowsiness and as Dr.Tushar B.Soni was not able to state that the injection was administered before or after recording of dying declaration, it was hazardous to rely upon so-called dying declaration recorded by Executive Magistrate, Mr.Patel. While attacking veracity of the two dying declarations, it was emphasised that as per the evidence of PI Mr.Desai, first information report was recorded between 12.15 p.m. and 12.40 p.m. whereas according to the Executive Magistrate, dying declaration was recorded between 12.30 p.m. and 1.05 p.m., and as inconsistency about the time of recording dying declaration and first information report is not explained by the prosecution, both the documents should have been ignored from the consideration. The learned counsel of the appellants emphasised that it is not the case of any one that at the same time, the Executive Magistrate was recording dying declaration of the deceased whereas PI Mr.Desai was recording the complaint of the deceased, and as inconsistency regarding time of recording of the two documents raises serious doubts about their genuineness, the conviction of the appellants should be set aside. It was further argued by the learned counsel of the appellants that the incident in question had taken place at about 7.00 a.m. or 7.15 a.m. in the morning whereas so-called dying declaration was recorded by the Executive Magistrate as well as first information report was noted down by PI Mr.Desai in the hospital when the deceased was surrounded by her close relatives and as tutoring of the deceased by her close relatives is not ruled out, both the documents should have been ignored while considering the case of the prosecution against the appellants. What was stressed was that the deceased had not mentioned the name of the appellants as assailants at the first earliest opportunity available to her when history of assault was sought to be ascertained by the doctor at the time of her admission into hospital and, therefore, dying declaration and the complaint should not be acted upon by this Court. According to the learned counsel of the appellants, the evidence of witness, Samnaram Markaji, indicating that the deceased had made oral dying declaration before him was not trustworthy and reliable inasmuch as his testimony suffers from vital contradictions as he had not referred to oral dying declaration in his previous police statement and, therefore, the same should not have been relied upon by the learned Judge. According to the learned counsel of the appellants, the evidence of husband of the deceased would indicate that the deceased had never regained consciousness after she was admitted in the hospital and, therefore, assertion made by witness, Samnaram, that the deceased had made oral dying declaration before him implicating the appellants, should be disbelieved. It was asserted by the learned counsel of the appellants that the learned Judge of the trial Court has not appreciated the evidence on record in its true perspective and, therefore, the appeal should be allowed. In support of these submissions, the learned counsel of the appellants has placed reliance on the decisions rendered in (1) Mohar Singh & Ors. v. State of Punjab, A.I.R. 1981 SC 1578, (2) Darshan Singh & Ors. v. State of Punjab, A.I.R. 1983 SC 554, (3) Paparambaka Rosamma & Ors. v. State of Andra Pradesh, A.I.R. 1999 SC 3455, (4) Panchdeo Singh v. State of Bihar, (2002) 1 SCC 577, and (5) Chacko v. State of Kerala, A.I.R. 2003 SC 265. 7. Mr.Sudhanshu S.Patel, learned Additional Public Prosecutor, contended that recording of dying declaration in presence of the doctor and getting it certified that declarant is conscious and in a fit state of mind to make statement is a rule of prudence, but not requirement of law and as the Executive Magistrate and PI Mr. Desai had satisfied themselves that the deceased was conscious and in a fit state of mind to make a statement, absence of certificate from the doctor to the effect that the deceased was conscious and in a fit state of mind to make statement is of no consequence. It was argued that the endorsement made by the doctor on Police Yadi indicated that the deceased who was in injured condition was fully conscious and, therefore, the assertion of the two officers, i.e. the Executive Magistrate and the Police Inspector, that the deceased was conscious and was in a fit state of mind to make statement does not get vitiated merely because the statements were not recorded by those two officers in presence of the doctor or that none of the statements was certified by the doctor to the effect that the deceased was conscious and in a fit state of mind to make statement. The learned counsel of the State Government pointed out that over and above the reliable and cogent testimony of the Executive Magistrate and PI Mr.Desai indicating that the deceased was conscious and in a fit state of mind to make statement, there is evidence of doctor as well as that of other witnesses which establishes beyond reasonable doubt that the deceased was conscious as well as in a fit state of mind to make statement and, therefore, it would not be correct to contend that the learned Judge has committed error in placing reliance on those dying declarations while recording the conviction of the appellants. What was maintained by the learned counsel of the State Government was that the questions put by the Executive Magistrate as well as the answers given by the deceased and the information recorded by PI Mr.Desai unerringly establishes that the deceased was not only conscious, but was in a fit state of mind to make statement and, therefore, those documents should be acted upon by this Court while confirming the conviction of the appellants. The learned Additional Public Prosecutor argued that there is nothing suspicious about recording of dying declaration or complaint of the deceased and, therefore, those vital documents cannot be brushed aside on specious plea that there is absence of certificate from the medical officer to the effect that the deceased was conscious and in a fit state of mind to make statement. The learned counsel further pointed out that it is not the case of the defence that any close relatives of the deceased was on inimical terms with the appellants and had, therefore, tutored the deceased to implicate the appellants falsely though they were innocent and, therefore, the plea that there was possibility of the deceased being tutored should not be accepted by the Court. The learned counsel argued that the deceased who had sustained severe burn injuries would be the last person to spare her assailants and involve innocent persons falsely and, therefore, implication of the appellants by her should not be doubted on so-called remote possibility that the relatives had tutored the deceased. According to the learned Additional Public Prosecutor, in fact, there is no inconsistency about the time of recording of the dying declaration and the complaint inasmuch as time of recording the dying declaration and the complaint are stated by the witnesses approximately before the Court and that too after a long period and, therefore, so-called inconsistency about the time of recording of the dying declaration and the complaint of the deceased would not got to show that those two documents are not genuine. The learned Additional Public Prosecutor took pains to point out to the Court that the evidence of Dr.Soni establishes beyond reasonable doubt that the deceased was conscious for twenty-four hours from the time of her admission into hospital, which rules out the possibility that she had lost consciousness or was not in a position to understand the questions put to her by the Executive Magistrate or the Police Officer and, therefore, neither recording of dying declaration nor recording of first information becomes doubtful merely because her general condition was poor or that she was drowsy or that her blood pressure was above normal. According to the learned Additional Public Prosecutor, the evidence of Dr.Soni read together with the contents of history of assault recorded by him as well as evidence of witness, Mr.Parmar, would show that the deceased was conscious as well as in a fit state of mind to make statement and, therefore, the claim advanced by the Executive Magistrate that the deceased had made dying declaration as well as claim made by PI Mr.Desai that he had recorded the complaint of the deceased as narrated by her, deserve acceptance. It was also argued that the evidence of the Executive Magistrate, who had recorded dying declaration, as well as that of Police Officer, who had recorded first information report, would indicate that not only the deceased was writhing in pain, but also demanding water which, in turn, establishes that the deceased was fully conscious and, therefore, it would not be correct to say that she was not able to make any statement as claimed by the Executive Magistrate or the Police Officer because her general condition was poor or that she was drowsy or that her blood pressure was above normal or that she had sustained 100% burns of second degree. The learned counsel emphasised that the evidence tendered by witness, Samnaram Markaji, P.W.-4, Exh.13, regarding oral dying declaration inspires confidence as the same is corroborated by other evidence on record and as the dying declarations of the deceased produced on record of the case are consistent as well as cogent with each other, well recorded conviction of the appellant should be upheld by this Court. It was pointed out that the deceased herself was not on inimical terms with the appellants nor had any motive to implicate them falsely in such serious case and, therefore, well reasoned judgment of the trial Court convicting the appellants of major offence should be confirmed by this Court. In support of his submission, the learned Additional Public Prosecutor has relied upon decisions in (1) Laxman v. State of Maharashtra, (2002) 6 SCC 710, (2) Sohanlal alias Sohan Singh & Ors. v. State of Punjab, 2004 SCC (Cri.) 226, (3) State v. Rabari Pancha Punja & Ors. 22 G.L.R. 426, and (4) Habib Usman v. The State of Gujarat, A.I.R. 1979 SC 1181. 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. 9. The fact that the deceased had died a homicidal death is not in dispute. Though before the trial Court, an attempt was made by the appellants to show that the deceased had died