IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No 976 of 1993 For Approval and Signature: Hon'ble MR.JUSTICE J.M.PANCHAL and Hon'ble MR.JUSTICE SHARAD D.DAVE ============================================================ 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 Civil Judge? : NO -------------------------------------------------------------- PRAJAPATI JAYANTILAL AMARSINHBHAI Versus STATE OF GUJARAT -------------------------------------------------------------- Appearance: MR KB ANANDJIWALA for Petitioners Ms.Harsha Devani, learned A.P.P. for Respondent No. 1 -------------------------------------------------------------- CORAM : MR.JUSTICE J.M.PANCHAL and MR.JUSTICE SHARAD D.DAVE Date of decision: 27/04/2001 ORAL JUDGEMENT (Per : MR.JUSTICE J.M.PANCHAL) 1. The appellants who are son and mother respectively have filed this appeal under sec. 374 of the Code of Criminal Procedure and questioned the legality of the judgment dated August 7, 1993 rendered by the learned Sessions Judge, Surendranagar in Sessions Case no. 97 of 1992 by which they are convicted under Sec. 302 read with 114 of I.P.C. and sentenced to R.I. for life and fine of Rs.100/-, in default S.I for 8 days for murder of wife of appellant no. 1. 2. Deceased Jayaben who was wife of appellant no. 1 was residing in Street no. 16, Ratanpar, Jorawar nagar, Taluka : Vadhvan, District : Surendranagar with the appellants and her two minor children. Her marriage with the appellant no. 1 had taken place prior to 10 years of the date of incident which is July 12, 1992. The appellant no. 1 was a clerk in a commercial firm in life. The appellant no. 1 had received the salary from his employer but had not given any amount to the deceased even after 10 to 12 days to enable the deceased to purchase necessary articles needed in the house. Though the deceased was entreating the appellant to give the amount, no amount was given by the appellant no. 1 and he was pressurizing the deceased to keep food ready to be served. On July 12, 1992, the deceased had prepared tea and bhakhri (thick hard bread) for appellants and children. The deceased had invited the appellants to take tea and bhakhri but the said offer was spurned by the appellants on the ground that they were not inclined to eat things prepared by the deceased. It is the case of the prosecution that thereafter the appellant no. 2 had poured kerosene over the deceased and the appellant no. 1 had set her on fire by lighting a match stick. On receiving burn injuries, the deceased had raised shouts for help and therefore witness Ishwarbhai Nanji, witness Ramjibhai Khimji and witness Ghelabhai Varjangbhai had rushed to the place of the incident and an attempt was made to extinguish the fire by means of a cotton bed.The deceased was thereafter removed to Mahatma Gandhi hospital, Surendranagar at about 8.30 a.m., where she was treated by Dr.Lalitbhai Maganlal Priyadarshi who was on duty as Medical Officer. The doctor had found the deceased conscious and therefore tried to know the history of burn injuries from the deceased. The deceased informed the doctor that her husband and her mother-in-law together had poured kerosene over her and had set her on fire. The history as narrated by the deceased was noted by the doctor on medical papers and the doctor had informed Smt.Bhanumatiben Gangadas who was then Police Officer in-charge of Jorawarnagar police station at about 9.05 a.m. that the deceased was admitted in the hospital with burn injuries and that she had stated that her husband and her mother-in-law had set her on fire. The information conveyed by Dr.Priyadarshi was noted down by Smt.Bhanumatiben in station dairy and she had informed about the same to Sub-Inspector of the police station. She had prepared a copy of the said entry and handed over the same to P.S.I. of the police station for investigation. At the same time, she had also reported to Executive Magistrate to record the dying declaration of the deceased. On receipt of the copy of entry made in station dairy from Smt.Bhanumatiben, P.S.I. Mr.A.R.Zhala of Jorawarnagar police station had gone to Mahatma Gandhi hospital. Before going to the hospital, P.S.I.Mr.Zhala had informed Smt.Sharmistaben Trivedi who was then the Chairman, Nari Kendra, Surendranagar about the incident and requested her to go to Mahatma Gandhi hospital. On receipt of the information, Smt. Sharmistaben had also gone to the hospital. After going to the hospital, Shri Zhala had ascertained from Dr.Arun Pragji Lathia whether the deceased was conscious and in a fit state of mind to make statement. Dr.Lathiya, after examining the deceased, had informed P.S.I.Mr.Zhala that deceased was conscious and in a fit state of mind to make the statement. Therefore, P.S.I.Mr.Zhala had recorded the complaint of the deceased in the presence of Chairman of Nari Kendra wherein also it was stated by the deceased that the appellant no.2 had poured kerosene over her and the appellant no. 1 had set her on fire. The complaint of the deceased was recorded between 9.45 a.m. to 10.10 a.m. After reducing the complaint of the deceased into writing, Mr.Zhala had obtained the thumb impression of the deceased as well as signature of Smt. Sharmistaben Trivedi thereon. On the complaint, Dr.Lathiya had made an endorsement to the effect that "Patient is conscious and cooperative and able to give answers with full consciousness". The complaint recorded by P.S.I.Mr.Zhala was sent to Joravarnagar police station for registration of offence along with forwarding letter and on receipt of the same, the offence was registered at Joravarnagar police station by Smt.Bhanumatiben who was Police Officer in-charge of Joravarnagar police station. Meanwhile, Mr.Tapubhai M Vaghela who was on duty as Dy.Mamlatdar in the office of Mamlatdar, Vadhvan had gone to Mahatma Gandhi Hospital for the purpose of recording dying declaration of the deceased. Mr.Vaghela had ascertained from Dr.Lathiya whether the deceased was conscious and in a fit state of mind to make statement. The doctor, after examining the deceased, had informed Dy.Mamlatdar Shri Vaghela that the deceased was conscious and was in a fit state of mind to make statement. Therefore, the Dy.Mamlatdar and Executive Magistrate Shri Vaghela had started recording the dying declaration of the deceased at 10.45 a.m. and completed the same at 11.10 a.m. In the dying declaration short history of the incident was given and it was stated by the deceased that the appellant no. 2 had poured kerosene over her and the appllent no. 1 had set her on fire. On the dying declaration an endorsement was made by Dr.Lathiya to the effect that "patient is conscious and cooperative and able to give answers with full consciousness". Meanwhile, the appellant no. 1 was insisting that the deceased should be removed to Ahmedabad hospital, but the doctors treating the deceased were not inclined to refer the deceased to Ahmedabad hospital. However the appellant no.1, against the medical advice, had decided to remove the deceased to Ahmedabad hospital. Therefore, transfer form was prepared by the authorities of Mahatma Gandhi hospital mentioning the history of assault stated by the deceased as well as the fact that the complaint and dying declaration were recorded. It was also mentioned in the medical papers that the deceased was being removed against the medical advice. The deceased was brought to Civil Hospital, Ahmedabad at about 5.10 p.m. with transfer memo by Kanjibhai Balubhai who is the elder brother of the appellant no. 1. Though in the transfer form, it was stated that the history as narrated by the deceased was noted, Dr.Shah had again tried to know the history of assault from the deceased and it is alleged that the deceased had stated before the doctor that she had received burn injuries because end of her sari had touched the flame of the stove while preparing Bhakhri. Dr.Shah did not make any arrangement for getting the dying declaration of deceased recorded because in the memo of transfer, it was mentioned that dying declaration of the deceased was already recorded. The history stated by the deceased before Dr.Shah was conveyed to Police Constable Mr.Ramjibhai who was on duty at O.P.D.Department of Civil Hospital which was noted down by him in the register. During the course of treatment, the deceased expired on July 16, 1992 at about 12.10 noon. Further investigation into the case was made by P.S.I.Mr.Zhala. The dead body of the deceased was sent for post-mortem examination and autopsy on her dead body was performed by Dr.Haresh B Palikar at Civil Hospital, Ahmedabad. At the conclusion of investigation, the appellants were chargesheeted for the offences punishable under Sec. 302, 498-A, 504 read with 114 of I.P.C. As the offence punishable under Sec. 302 of I.P.C. is exclusively triable by Court of Sessions, the case was committed to Sessions Court, Surendranagar for trial where it was numbered as Sessions Case no. 97 of 1992. The charge of the offences punishable under Sec. 302, 498-A, 504 read with 114 of I.P.C. was framed by the learned Sessions Judge at exh. 3 against the appellants. The charge was read over and explained to the appellants who pleaded not guilty to the same and claimed to be tried. The prosecution, therefore, examined in all 14 witnesses to prove its case against the appellants. They were (1)Executive Magistrate Tapubhai Maganlal Vaghela p.w.1 exh. 7, (2)Dr.Lalitbhai Maganlal Priyadarshi p.w.2 exh. 9, (3) Dr.Arun Pragjibhai Lathiya p.w.3 exh. 12, (4) Dr.Haresh D Palikar p.w.4 exh. 15, (5) Niranjan C Bhadeliya p.w. 5 exh. 18, (6) Dalpatbhai Nanubhai p.w.6 exh. 23, (7) Smt.Sharmistaben Trivedi p.w.7 exh. 25, (8) Ishwarbhai Nanjibhai p.w.8 exh. 26, (9) Ramjibhai Khimjibhai p.w.9 exh. 27, (10) Monghiben Kanjibhai p.w.10 exh. 28, (11) Ramjibhai Kalidas p.w.11 exh. 31, (12)I.O. Mr.A.R.Zhala p.w.12 exh. 33, (13)Dr.Rameshchandra Bhagubhai Shah p.w.13 exh. 38 and (14) Smt.Bhanumatiben Gangadas p.w.14 exh. 41. The prosecution also produced documentary evidence such as dying declaration of the deceased recorded by Executive Magistrate Shri Vaghela, medical papers prepared at Mahatma Gandhi hospital, Surendranagar, injury certificate of appellant no. 1, post mortem notes of the deceased, panchanama of place of occurrence, inquest report, complaint of the deceased recorded by P.S.I.Mr.Zhala etc. to prove its case against the appellants. After recording of evidence of prosecution witnesses was over, the learned Judge explained to the appellants the circumstances appearing in the evidence against them and recorded their statements under Sec. 313 of the Code of Criminal Procedure, 1973. In their respective further statement, the appellants claimed that the case of the prosecution against them was false. Further the appellants examined two witnesses in support of their defence. They were Gelabhai Varjangbhai D.w.1 at exh. 50 and Gordhandas Ukabhai D.w.2 at exh. 52. The appellants also jointly filed written statement offering their explanation about the incident. The appellant no. 1 pointed out his bad economic condition in the written statement and pleaded that the deceased had committed suicide where as the appellant no. 2 claimed that she was not present at the time of incident and had gone to asylum where she was serving. On appreciation of evidence, the learned Sessions Judge held that evidence of witness Ramjibhai Khimjibhai, witness Ishwarbhai Nanjibhai and defence witness Gelabhai Varjangbhai to the effect that appellant no. 1 had sustained injuries in an attempt to extinguish fire on the deceased by means of quilt (mattress made by joining small pieces of cloth together) and that the appellant no. 1 was found wearing a bath towel round the waist at the time of incident was not reliable at all. The learned Judge deduced that witness Mongiben Kanjibhai who was mother of the deceased had turned hostile to prosecution and her evidence was of little assistance to the prosecution. After referring to the evidence of P.S.I.Mr.Zhala, Smt. Sharmistaben Trivedi who was then Chairman of Nari Kendra, Surendranagar, Executive Magistrate Shri Tapubhai Vaghela, Dr. Lalitbhai M Priyadarshi who had recorded the history of incident as narrated by the deceased, medical papers etc. the learned Judge reasoned that oral dying declaration made by the deceased before Dr.Priyadarshi as well as complaint registered by P.S.I.Mr.Zhala and dying declaration recorded by Mr.Vaghela were trustworthy and reliable. The learned Judge held that the history of burn injury recorded by Dr. Shah at Ahmedabad hospital was contrary to circumstantial evidence proved in the case and was not reliable. The learned Judge in detail considered the question whether the deceased had committed suicide or received burn injuries accidentally and held that the deceased had neither committed suicide nor received burn injuries accidentally but was set on fire by the appellant no. 1 after kerosene was poured over her by the appellant no. 2. The learned Judge also held that the prosecution had failed to prove its case against the appellants under sec. 498-A and 504 of I.P.C. As the learned Judge relied upon the dying declarations of the deceased implicating the appellants, he has convicted the appellants under Sec. 302 read with 114 of I.P.C. and sentenced them to R.I. for life and fine of Rs.100/-, in default S.I. for 8 days by judgment dated August 7, 1993 giving rise to the present appeal. Mr.K.B.Anandjiwala, learned Counsel for the appellants, after taking us through the entire evidence on record, submitted that the evidence of witness Ishwarbhai, witness Ramjibhai, witness Mongiben and defence witness Gelabhai indicates that on hearing shouts of help raised by the deceased as well as appellant no. 1 those witnesses had rushed to the place of incident and found quilt on the deceased which unerringly establishes that an attempt was made by the appellant no.1 to extinguish fire on the deceased which is quite inconsistent with his guilt. The learned counsel referred to the injury certificate of the appellant no. 1 which is on record of the case at exh. 13 and urged that not only the appellant no. 1 had sustained injury on hand but his hair were also partly burnt as well as his bath towel which he was wearing was partly burnt, which in turn corroborates the case of the appellant no. 1 that he had tried to extinguish fire on the deceased and was innocent. After referring to the evidence of witnesses whose names are mentioned above in detail, the learned counsel for the appellants submitted that immediately after the incident, the appellant no. 1 had gone to the house of his mother-in-law wearing a bath towel and informed her about the incident which shows that the appellant no. 1 was totally innocent and this conduct of appellant no. 1 is inconsistent with the theory of homicidal death of the deceased. The learned counsel referred to the evidence of witness Mongiben and argued that as the appellant no.1 was not giving sufficient amount to the deceased for purchase of essential articles, the deceased was fed up with life and had committed suicide but had disclosed the name of appellant no. 1 falsely out of anger towards him. The learned counsel vehemently submitted that the history of assault as noted down by Dr.Priyadarshi as well as complaint recorded by P.S.I.Mr.Zhala and dying declaration recorded by Executive Magistrate, Shri Vaghela are inconsistent with contents of panchanama of place of occurrence and therefore they should not have been relied upon by the learned Judge. The learned counsel, referred to the panchanama of place of occurrence and pleaded that no smell of kerosene was coming out from the dough which was found at the place of incident nor any smell of kerosene was found from flour which was to be used for preparing Bhakhri and these facts establish that kerosene was never poured over the deceased. What was claimed was that Smt.Sharmistaben Trivedi has not stated a word in her deposition as to what was stated by the deceased before P.S.I.Mr.Zhala which indicates that she was not present at the time when complaint of the deceased was recorded but she had deposed before the court against the appellants only because her signature was obtained on the complaint subsequently. The learned counsel referred to the inquest report and submitted that the wardhi which is referred to in the report clearly mentions that as end of sari of the deceased had touched flame she had received the burn injuries and therefore the probability that the deceased might have received burn injuries accidentally is not ruled out. On reference to the medical papers, the learned counsel contended that the general condition of the deceased was poor and as she had received third degree burns, her vocal cord must have been affected rendering her speechless and therefore the three dying declarations should be discarded. The learned Counsel stressed that there was no reason to disbelieve the testimony of Dr.Rameshchandra Shah to the effect that deceased had stated before him that she had received burn injuries while preparing bhakhri, more particularly when the said history is supported by contents of the panchanama of place of occurrence and therefore the appeal should be accepted. According to the learned Counsel for the appellants, P.S.I. Mr.Zhala has gradually improved his version before the court regarding consciousness of the deceased as well as presence of Chairman of Nari Kendra at the time when complaint of the deceased was recorded and therefore his evidence is not trustworthy. Lastly, the learned counsel emphasized that in view of the conflicting evidence of prosecution witnesses, at least benefit of doubt should be given to the appellants and the appeal should be allowed. Ms.Harsha Devani, learned A.P.P. submitted that the oral dying declaration made by the deceased before Dr.Priyadarshi at 8.30 a.m. is amply proved by the trustworthy testimony of Dr.Priyadarshi and therefore the learned judge did not commit any error in placing reliance on oral dying declaration as recorded by Dr.Priyadarshi. According to learned A.P.P., complaint of the deceased was recorded by P.S.I. Mr.Zhala in presence of independent witness namely Smt.Sharmistaben Trivedi who was Chairman of Nari Kendra, Surendranagar, after ascertaining from the doctor that the deceased was conscious and in a fit state of mind to make statement and therefore the case of the prosecution against the appellants is also proved by the complaint of the deceased herself. What was emphasized was that the Executive Magistrate Mr.Vaghela had recorded the dying declaration of the deceased after ascertaining from the medical officer on duty that the deceased was conscious and in a fit state of mind to make statement and as this witness has no grudge against the appellants and as no animosity is even remotely suggested by the defence, the learned Judge was justified in relying upon the said dying declaration for convicting the appellants. The learned Counsel for the state pointed out the circumstance that against the medical advice, the deceased was removed by appellant no. 1 to Ahmedabad hospital and as deceased was in the company of relatives of appellants, there was all possibility that she was pressurized to make statement before Dr.Shah exonerating the appellants and therefore the learned Judge was right in discarding the alleged history as given by the deceased before Dr.Shah, more particularly when the said history completely stands contradicted by the proved evidence on record. The learned Counsel emphasized that the evidence of witness Ishwarbhai, witness Ramjibhai and defence witness Gelabhai does not inspire confidence at all and therefore their evidence should not be accepted by this court. It was argued on behalf of the state that no attempt worth name was made by the appellant to extinguish fire on the deceased and as its case against the appellants is proved by reliable and trustworthy evidence led by the prosecution, the appeal should be dismissed. We have taken into consideration the submissions advanced at the bar and reappreciated the whole evidence on record. 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 or that unless evidence is tested by cross-examination, it is not credit worthy. Under section 32(1) 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 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. If there are more than one dying declarations, then the Court has to scrutinise all the dying declarations to find out if each one of them passes the test of being trustworthy. The Court must further find out whether different dying declarations are consistent with each other in material particulars before accepting and relying upon the same. A dying declaration made by a person on the verge of his death has a special sanctity, as at that solemn moment, a person 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 or 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 Court, 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 Court has 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 dying 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. 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 pronouncement 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 ? and (3) Whether any material part is proved to be false by other reliable