CR.A/1100/1999 1/24 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 1100 of 1999 For Approval and Signature: HONOURABLE MR.JUSTICE J.R.VORA HONOURABLE MR.JUSTICE SHARAD D.DAVE ========================================= 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 ? ========================================= RAM TEJMAL TEKVANI Versus STATE OF GUJARAT ========================================= Appearance : MR MB AHUJA with MS SM AHUJA for Appellant MS ARCHANA RAVAL APP Respondent ========================================= CORAM : HONOURABLE MR.JUSTICE J.R.VORA and HONOURABLE MR.JUSTICE SHARAD D.DAVE Date : 04/12/2008 ORAL JUDGMENT: (Per : HONOURABLE MR.JUSTICE J.R.VORA) CR.A/1100/1999 2/24 JUDGMENT 1 Instant Appeal is preferred by the appellant under Section 374 of the Code of Criminal Procedure, 1973, against the judgment and order delivered by learned Additional Sessions Judge, City Sessions Court No.10 at Ahmedabad, on 18th of August, 1999, in Sessions Case No. 27 of 1999, whereby the present appellant, being accused of the said Sessions Case, came to be convicted by the Trial Court for the offence punishable under Section 302 of the Indian Penal Code and was sentenced to undergo life imprisonment and to pay fine of Rs. 500/-, in default, to undergo one month rigorous imprisonment. 2 The present appellant faced trial for the offences punishable under Sections 302 and 498(A) of the Indian Penal Code. Learned Trial Judge was pleased to acquit the appellant as the prosecution has failed to prove charge against him under Section 498(A) of the Indian Penal Code and there is no appeal against the order of acquittal. 3. As per the brief facts of the prosecution case, the present appellant married deceased Minaben alias Anita before two years of the incident. During these two years, deceased, according to prosecution case, was subjected to cruelty by the appellant and the appellant was in habit of taking liquor and harassed deceased. The deceased was elder than appellant in age which was not liked by the appellant and the CR.A/1100/1999 3/24 JUDGMENT appellant had some doubts about the conduct of the deceased. On 5th of December, 1998, at about 6.45 p.m., appellant came to the house in which both the husband and wife were residing and the appellant was under the influence of liquor. The deceased was doing her sewing work in the house. The appellant started taunting that the deceased was elder to him and that she was not liked by him and also threatened her not to go out of the house. He was excited and took out a tin of kerosene which he poured upon the deceased and set her to ablaze. The deceased started shouting and, therefore, neighbours came there and the deceased Minaben was shifted to the Civil Hospital, Ahmedabad. She was admitted in the causality ward. Dr. Rajendrakumar Joshi, PW- 11, noted the case history given by the patient that she was burnt by her husband and treatment was started. PW-6 Gautamkumar Maganlal, Head Constable, Sardarnagar Police Station, Ahmedabad, examined at Exhibit-18, was on duty at Civil Hospital and Dr. Rajendrakumar Joshi informed him and, therefore, he noted the Vardhi in writing, which is produced at Exhibit-19. In this Vardhi, Gautamkumar noted that Doctor informed him that Minaben was admitted in the hospital with burn injuries and according to case papers, she conveyed that her husband was harassing her, taking liquor and after pouring kerosene over her, set her to ablaze. Gautamkumar also informed Sardarnagar Police Station where PW-7 Mohbatsinh CR.A/1100/1999 4/24 JUDGMENT Govindsinh was in-charge of police station and he also noted the Vardhi as given by Police Constable Gautamkumar, which he produced at Exhibit-21. From this Vardhi, PW-8 Dhanjibhai Badaji Bodat, PSI of Sardarnagar Police Station, at about 20.15 hours with his Writer Constable, visited Civil Hospital. He met with the Doctor and wrote a Yadi to the Executive Magistrate. In pursuance of the said Yadi of PW-8 Dhanjibhai Badaji Bodat, PW-2 Sureshchandra Vasudev who was in Civil Hospital for recording of some other dying declaration, went to record the dying declaration of Minaben. PW-2 Sureshchandra Vasudev, Executive Magistrate received police yadi at 22.10 hours. He inquired from Minaben about the incident. He found that the patient was conscious and requested all other persons in the ward to go out and started recording dying declaration at 22.15 hours in question – answer forms. The dying declaration was completed at 22.30 hours wherein also the deceased stated that her husband appellant, under the influence of liquor, had beaten her and had poured kerosene from the tin. She was seriously injured on the face, hands, etc and she had 90% burns. Thereafter, PW-8 Dhanjibhai Badaji Bodat recorded the complaint of deceased Minaben, which is produced at Exhibit-24 wherein also deceased stated that her husband present appellant was in habit of taking liquor and was harassing her. On the day of the incident it was Sunday and it was leave for the appellant and while CR.A/1100/1999 5/24 JUDGMENT she was doing some sewing work, her husband came in the house and in the influence of liquor, started saying that she was elder than him and she was not liked by him. He doubted her conduct and thereafter took out a tin of kerosene, poured over her and ignited with match stick. A crime came to be registered upon this complaint and the complaint came to be recorded before 23.00 hours because in police station the crime was declared at 23.00 hours. Investigation was handed over to PW-9 Jayantilal Vachhani, who was PSI of Sardarnagar Police Station. He recorded the statement of witnesses and draw the panchnama of the scene of offence on 7th of December, 1998. The scene of offence was also visited by Officer of Forensic Since Laboratory and he had prepared report which he produced at Exhibits 30 and 31. In the meantime, on 7th of December, 1998, at 13.45 hours, Minaben died and, therefore, the offence was registered under Sections 302 and 498(A) of the Indian Penal Code, which was initially registered under Sections 307 and 498(A) of the Indian Penal Code. Inquest panchnama was done by PW-12 Executive Magistrate Savdhanji Vajaji Darbar and thereafter the postmortem of dead body was performed by PW-10 Dr. Jayantilal V Satapura of Civil Hospital at Ahmedabad. Muddamal was sent to Forensic Science Laboratory wherein clothes of the accused were found smelling of kerosene. Accused was arrested on 7th of December, 1998 and his clothes were seized and were sent to Forensic CR.A/1100/1999 6/24 JUDGMENT Science Laboratory. 4 In pursuance of the above investigation, a charge sheet came to be filed for the above said offence against the appellant and the said case was ultimately committed to the City Sessions Court at Ahmedabad which was registered as Sessions Case No. 27 of 1999 and was made over to the Trial Court. 5 The charge was framed by the Trial Court vide Exhibit-1 for the above said two charges on 12th of April, 1998 and was read over to the appellant. He pleaded not guilty. Prosecution examined as many as 12 witnesses and produced on record voluminous documentary evidence. Thereafter, the attention of the appellant was drawn to the circumstances appearing in the evidence against him and his statement was recorded by the Trial Court under Section 313 of the Code of Criminal Procedure. The defence of the appellant was of total denial and he explained that, when he reached home, he found his wife in burnt condition. 6 After hearing both the sides, the learned Trial Court came to the above conclusion that the prosecution has failed to prove charge under Section 498-A of the Indian Penal Code against the appellant but CR.A/1100/1999 7/24 JUDGMENT the appellant was found guilty for the offence punishable under Section 302 of the Indian Penal Code and, hence, this Appeal. 7 Learned Advocate Ms. S.M. Ahuja for the appellant vehemently urged that the prosecution has failed to prove that the deceased was conscious when she was shifted to the hospital and nowhere none of the witnesses certified the fitness of mind of the deceased to make any declaration. Even real brother of the deceased PW-1 Rajubhai Lalchand stated that when his sister Minaben was shifted to the hospital she was unconscious. The story narrated in all the three dying declarations appears to be improbable and inconsistent. PW-1 Rajubhai, brother of the deceased, has admitted that for two years the married life of appellant and deceased Minaben was smooth and they were happily living. There was no cause for the appellant to raise a dispute. Under the circumstances, the evidence of the Executive Magistrate PW-2 Sureshchandra Vasudev, who recorded dying declaration and the evidence of PW-8 Dhanjibhai Badaji Bodat, who recorded the complaint, both becomes doubtful and dying declaration recorded by both of them which are one in the form of dying declaration and the other in the form of First Information Report, are doubtful and in none of the dying declarations, endorsement or certification of the Doctor, about the fitness of mind could be obtained CR.A/1100/1999 8/24 JUDGMENT by either of both the witnesses. The history given by the deceased before PW-11 Dr. Rajendrakumar B. Joshi also is not reliable as the Doctor only opined that the patient was conscious and did not say anything about the fitness of mind of the patient and dying declaration which is at Exhibit-11 was recorded after two hours at 22.15 hours where the patient would not in all probability under the influence of drug and could not be conscious to give declaration. Therefore, the history as recorded by PW-11 Dr. Rajendrakumar Joshi is also not reliable. In all the three dying declarations, there are different versions. In history, in short, she stated that her husband had taken liquor and had burnt her while before the Executive Magistrate the deceased stated that the appellant went out and then came after taking liquor and straightaway poured kerosene and ignited her. While in FIR as recorded by Mr. Dhanjibhai Badaji Bodat, which is at Exhibit-24, she stated that appellant had beaten her and taunted her that she was elder than him and she was not liked by him and that he doubted her conduct and thereafter she was ignited and, therefore, these are inconsistent version rendering all the three dying declarations unreliable. It is submitted that it is the prosecution case since inception that the appellant accused had taken liquor, but there is no evidence at all in this regard either through the panchnama of scene of offence or by any cogent evidence that appellant was under the influence of liquor. CR.A/1100/1999 9/24 JUDGMENT When accused was arrested on the next day by arrest panchnama at Exhibit-32, which was drawn on the next day, it is specifically mentioned that no smell of alcohol was coming from the mouth of the accused and, therefore, in these circumstances, the defence of the accused is probable that he was not at all in the house when the incident occurred, for some unknown reasons, the deceased might have committed suicide and, therefore, in the further statement, it is stated by the accused that when he came at the house, he found that his wife was in burnt condition and was unconscious, except that, he did not know anything. It is submitted that the neighbours, according to even FIR, had gathered at the time of the incident, did not support the prosecution case as PW-3 Kailashben Bhagatsinh as well as PW-5 Punamben Vasudev, both turned hostile and did not support the prosecution case. The learned Trial Judge did not rely upon the First Information Report at Exhibit-24 but relied upon other two dying declarations and convicted the accused. It is submitted that in these circumstances, the learned Trial Judge committed error in appreciating the evidence as produced on record and the appellant is entitled to acquittal. Learned Advocate for the appellant has also relied upon certain decisions which will be referred to hereinafter. 6 As against that, learned APP Ms. Archana Raval submitted CR.A/1100/1999 10/24 JUDGMENT that there are three consistent dying declarations and the thread of the story that husband poured kerosene upon the deceased and set her to ablaze, is found consistent in all the three dying declarations. It is submitted that it is now well settled that certification of any medical expert as to fitness of mind is not sine qua non for appreciating the dying declaration of the deceased. It is submitted that it is for the courts to determine whether the evidence of the person who recorded dying declaration is credit worthy or not and from that it could be concluded that deceased was in fit state of mind or not. Learned APP has relied upon a decision in the matter of SHER SINGH vs. STATE OF PUNJAB, as reported in 2008 Cri. L.J., 2062 and a decision of the Constitutional Bench of the Supreme Court in the matter of LAXMAN vs. STATE OF MAHARASHTRA, as reported in AIR 2002 SC, 2973. Learned APP also submitted other decisions establishing that dying declaration alone can be the basis of conviction if found true and it does not require any corroboration. It is submitted that PW-2 Sureshchandra Vasudev, who is Executive Magistrate and recorded dying declaration in question – answer forms, which is at Exhibit-13; PW-8 Dhanjibhai Badaji Bodat, who recorded FIR at Exhibit-24 and PW-11 Dr. Rajendrakumar B. Joshi, who recorded history from deceased, which is at Exhibit-39, all the three are independent witnesses and from their evidence it is proved that deceased was in fit state of mind to offer dying declaration. There CR.A/1100/1999 11/24 JUDGMENT is nothing on record that these independent witnesses would join hands to implicate the accused falsely. It is, therefore submitted that the Appeal is required to be dismissed. 7 We have considered the rival contentions advanced in this Appeal. We have re-appreciated the whole evidence recorded during the trial. We have taken into consideration complete and comprehensive evaluation of all vital features of the case and the broad and reasonable probabilities arising out of the circumstances emerging from the evidence recorded and contentions raised. 8 Re-appreciating the evidence, it is found that the prosecution examined PW-1 Rajubhai Lalchand, examined at Exhibit-9, real brother of the deceased, who has turned hostile and prosecution has confronted him with his police statement. PW-2 Sureshchandra Vasudev, Exhibit-11, and according to him while on the day of the incident he was recording dying declaration in Civil Hospital, he was called by police yadi to record dying declaration in this case also and he recorded dying declaration from 22.15 hours to 22.30 hours and before that he ascertained that the patient was fully conscious though in Yadi at Exhibit-12 he had seen the endorsement of the Doctor that the patient was conscious and was able to speak. That Yadi is placed CR.A/1100/1999 12/24 JUDGMENT at Exhibit-12; dying declaration is at Exhibit-13 and below that he has given a certificate that he has satisfied himself that the patient was in fit state of mind. PW-3 Kailashben Bhagatsinh, examined at Exhibit-14, was neighbour, but did not support the prosecution case. PW-4 Dilip Nandlal, examined at Exhibit-15, happens to be panch of scene of offence panchnama at Exhibit-16, but he has not supported the prosecution case. PW-5 Punamben Vasudev, examined at Exhibit-17, is again a neighbour did not support the prosecution case. PW-6 Gautamkumar Maganlal, examined at Exhibit-18 was Police Constable at Shahibaug Police Station on 6th of December, 1998 and was informed by Dr. Rajendrakumar Joshi that Minaben was admitted and from his case papers he recorded a Vardhi, which is placed at Exhibit-19 and contents of the Vardhi denotes that the deceased was harassed by the appellant and appellant had poured kerosene upon her and set her to ablaze. PW-7 Mohbatsinh Govindsinh, examined at Exhibit-20 was the then PSO of Sardarnagar Police Station and according to him at 20.15 hours he received information from Constable Gautamkumar about the Vardhi at Exhibit-19 and he entered this Vardhi in police station register, which is placed at Exhibit-21, which also denotes that the deceased was set to ablaze by the appellant – husband. PW-8 Dhanjibhai Badaji Bodat, examined at Exhibit-22, deposed that at 20.15 hours on 6th of December, 1998, PSO informed him that he received CR.A/1100/1999 13/24 JUDGMENT Vardhi from Civil Hospital and, therefore, he reached at the Civil Hospital. The copy of the said Vardhi he produced at Exhibit-23 which is also in consonance with the Vardhi at Exhibit-19 and Exhibit-21. According to this witness, he met the Doctor and wrote a Yadi to the Executive Magistrate, which is produced at Exhibit-12, thereafter dying declaration was recorded and he also recorded the complaint of Minaben alias Anitaben and identified that complaint at Exhibit-24. According to witness, the complaint was dictated by deceased and he obtained right leg thumb impression of the deceased on complaint. The offence came to be registered, thereafter investigation was given to Jayantilal Vachhani. The registration of crime and entry in this respect is produced at Exhibit-25 and a map of scene of offence is produced at Exhibit-28. PW-9 Jayantilal Vachhani, examined at Exhibit-29, was the then P.I., of Sardarnagar Police Station and according to him he was entrusted with the investigation of the case on 7th of December, 1998, draw scene of offence panchnama, called FSL Officers to visit the scene of offence, recorded the statements of the witnesses and when deceased died, he requested the Executive Magistrate to perform inquest panchnama and filed charge sheet. Note of FSL officer who visited the scene of offence is placed at Exhibit-31. Exhibit-32 is the panchnama of arrest of the accused. Exhibit-33 is the forwarding note of the Forensic Science Laboratory and Exhibit-35 is the opinion of the Forensic CR.A/1100/1999 14/24 JUDGMENT Science Laboratory. PW-10 Dr. Jayantilal V. Satapura, examined at Exhibit-36, undertook postmortem of the deceased on 7th of December, 1998 from 11.00 a.m. to 12.00 p.m. He produced on recorded the Postmortem Note at Exhibit-37. According to him, the deceased had 80% burn injuries and cause of death was shock due to burns. The injuries were antemortem. PW-11 Dr. Rajendrakumar B. Joshi, examined at Exhibit-38, deposed that on 6th of December, 1998, when he was on duty as Medical Officer in Civil Hospital, Ahmedabad, Minaben was brought to him and she was admitted. She was having burns all over the body and witness was in-charge of Emergency Ward. It was 7.25 p.m. at that time the patient had given history by herself which he recorded in the words of patient. In Gujarati the patient stated that her husband was harassing her and on that day poured kerosene over her and set her to ablaze. He examined the patient and she was unconscious and was having burns over the chest, abdomen, back and both upper limbs. He had informed the Police Constable on duty, whose Buckle No. was 6644. He has been cross-examined by the defence. The case papers which indicates the history recorded by this witness is produced at Exhibit-39. Last witness,PW-12 Savdhanji Vajaji Darbar, examined at Exhibit-40 was the Executive Magistrate and had performed inquest and inquest panchnama is produced at Exhibit-42. This is all is the evidence of the prosecution. CR.A/1100/1999 15/24 JUDGMENT 9 Learned Trial Judge though relied upon the case history given by the deceased to PW-11 Rajendrakumar B Joshi at Exhibit-39 and that dying declaration recorded by PW-2 Sureshchandra Vasudev is at Exhibit-13, but did not place any reliance upon the complaint filed by PW-8 Dhanjibhai Badaji Bodat. 10 On re-appreciating the evidence on record with reference to the contentions raised on behalf of the appellant, it must be noted that it is settled law that the evidence of dying declaration can be basis of conviction solely without any corroboration. Corroboration is rule of prudence and not rule of law. What is required is to ascertain from the evidence recorded that dying declaration is credit worthy and reliable. A special sanctity is given to this piece of evidence in criminal trials. Once the statement of dying person and the evidence of witnesses testifying to the same passes the test of careful scrutiny of the Courts, it becomes very important and reliable piece of evidence and if the Court is satisfied that the dying declaration is true and free from any embellishment, such a dying declaration by itself can be sufficient for recording conviction even without looking for any corroboration. It is also settled law that no certification is required as to the fitness of mind of the deceased person but the circumstances must be scrutinized CR.A/1100/1999 16/24 JUDGMENT by the court to satisfy itself that the person who made declaration was in fit state of mind. It is also necessary, therefore, to ascertain that whether the victim was in position to identify the assailant, whether the version narrated by the victim is intrinsically sound and accords with probabilities and whether any material part is proved to be false by other reliable evidence. Considering legal as well as factual aspects of this Appeal, we found that three independent witnesses i.e. PW-2 Sureshchandra Vasudev, examined at Exhibit-11, who recorded the dying declaration at Exhibit-13; PW-18 Dhanjibhai Badaji Bodat, examined at Exhibit-22, who recorded the FIR at Exhibit-24 and PW-11 Rajendrakumar B. Joshi, examined at Exhibit-38, who recorded history in the form of dying declaration at Exhibit-39, are all independent witnesses and there is no reason that all these three witnesses could not be believed. In fact, the learned Advocate for the appellant could not point out a single circumstance to indicate that all the three independent persons have joined hands together to rope in the accused and recorded dying declaration even when declarant was not in fit state of mind. If we refer to the evidence of PW-11 Dr. Rajendrakumar Joshi, examined at Exhibit-38, it becomes clear that he was in-charge of Emergency Ward of the Civil Hospital and found that Minaben was admitted and was conscious. Not only that, the witness stated that he noted the history in the case papers verbatim what was stated by the CR.A/1100/1999 17/24 JUDGMENT deceased, which denotes the fitness of mind of the declarant. The witness has been cross-examined by the defence but nothing material is coming out. On the contrary, he denied the suggestion that patient was not in conscious state of mind at that juncture even no treatment at all was still administered to her, which is evident from the cross- examination that the patient was thereafter shifted to Causality Ward. The evidence of this witness could not be shaken by the defence. Like wise, PW-2 Sureshchandra Vasudev also is an independent witness and in his official capacity, on receiving the Yadi at Exhibit-12, went to the patient and ascertained that the patient was conscious. He recorded the dying declaration in question – answer forms, which denotes the fitness of mind of the patient and this witness has certified to this effect below at Exhibit-13. It must be noted that in Exhibit-12 Yadi there is an endorsement of the Doctor that the patient was conscious and able to speak. There is a signature below this and the time mentioned is 9.40 p.m. This Yadi is addressed by Mr. Bodat to the Executive Magistrate. Relying upon this endorsement and after verifying the consciousness and fitness of mind of the patient, PW-2 Sureshchandra Vasudev, recorded the dying declaration. Only because Sureshchandra Vasudev PW-2 stated that he received Yadi when he was in Civil Hospital to record other dying declaration and that Mr. Dhanjibhai Badaji Bodat stated that he had delivered Exhibit-12 Yadi to the house of CR.A/1100/1999 18/24 JUDGMENT Sureshchandra Vasudev, makes no