CR.A/70419/1999 1/11 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 704 of 1999 For Approval and Signature: HONOURABLE MR.JUSTICE C.K.BUCH HONOURABLE MR.JUSTICE H.B.ANTANI ========================================================= 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 ? ========================================================= JAMALABHAI HURSINGBHAI MEDA Versus STATE OF GUJARAT ========================================================= Appearance : MRS SHILPA R SHAH for Appellant. MS DARSHANA PANDIT, ADDL. PUBLIC PROSECUTOR for Respondent. ========================================================= CORAM : HONOURABLE MR.JUSTICE C.K.BUCH and HONOURABLE MR.JUSTICE H.B.ANTANI Date : 10/09/2008 CR.A/70419/1999 2/11 JUDGMENT ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE C.K.BUCH) The appellant has preferred this appeal through jail assailing the legality and validity of the order of conviction and sentence dated 14.06.1999 passed by learned Additional Sessions Judge, Panchmahals at Dahod Camp in Sessions Case No. 189 of 1997 whereby the learned Judge held the accused guilty of an offence punishable under section 302 of the IPC and sentenced him to undergo rigorous imprisonment for life and fine of Rs.5000/-, in default of payment of fine, further simple imprisonment for 3 months. The appellant-accused was originally charged for offence punishable under sections 303 and 75 of the Indian Penal Code. However, considering the law laid down by the Apex Court in the case of MITHU vs. STATE OF PUNJAB reported in 1983 CR.L.J. 811 whereby the Honourable Supreme Court has held section 303 of the Indian Penal Code to be violative of Article 14 and 21 of the Constitution, the appellant has been held guilty of offence punishable under section 302 of the Indian Penal Code. For the sake of brevity and convenience, we would firstly state the facts which are reflected in the charge framed against the accused by the learned trial Judge: According to the prosecution, on 6th July 1997, the accused assaulted his wife, Gangaben, with the pointed part of an umbrella as he was suspecting the character of CR.A/70419/1999 3/11 JUDGMENT his wife and he had given blows in her private part after taking out the clothes that she had put on her body. It is the say of the prosecution that the accused, on the date of the incident, was on parole leave granted to him as he was undergoing imprisonment for life for another offence. He had induced his wife to accompany him so that both can go to Dahod to see the ailing father of the accused. The deceased-wife had accompanied the accused to Dahod. When they reached near village Usarvan, the accused took out the clothes put on by his deceased-wife and blows were given in her private part with the pointed portion of an umbrella, knowing fully well that such an injury may cause her death. After the trial, the learned Additional Sessions Judge held the accused guilty of an offence punishable under section 302 of the IPC and sentenced him to undergo rigorous imprisonment for life and fine of Rs.5000/-, in default of payment of fine, further simple imprisonment for 3 months. Ms. Shilpa Shah, learned advocate appearing for the appellant has submitted that the conviction is mainly based on evidence of one police officer, PW.14, PSI Gharasiya and the FIR, treated as dyeing declaration given by the deceased. Learned trial Judge ought not to have placed reliance on the FIR as the deceased had succumbed to the injuries in a very short span from her admission in the hospital. Therefore, she may not be in a fit state of mind to give such a statement which has been recorded by the police. The recovery panchnama of the umbrella found blood stained is not a trustworthy piece of evidence, and, therefore, the Forensic Science CR.A/70419/1999 4/11 JUDGMENT Laboratory's report also should not be given any weightage. The view of the learned trial Judge appears to be more moral rather than legal. In response to the query raised by the Court, Ms. Shah has fairly accepted that as per the settled legal position, dyeing declaration, if found reliable, then the Court can hold the accused guilty but merely because the accused was undergoing imprisonment for a serious offence, nothing adverse could have been presumed by the trial Court. In response to the submissions made by the learned counsel appearing for the appellant, Ms. Pandit, learned APP has submitted that this is a case where the FIR being dyeing declaration has been rightly relied upon by the trial Judge. The recorder of the statement, PSO Gharasiya, has proved the statement, when Mr. Gharasiya has stood to the test of cross-examination so far as recording of complaint is concerned, there was no reason for the trial Judge to discard the evidence of either Mr. Gharasiya or the evidence available in the nature of dyeing declaration. One witness, who claims to be an eye witness, Maheshbhai Vijaybhai Bariya, ofcourse has stated that the statement was not recorded by the police. But, there is sufficient evidence to show that statement of Maheshbhai Vijaybhai Bariya was recorded by the investigating officer, and, therefore, he was cited as a witness. He was declared hostile. However, in the cross-examination, he has supported the case of prosecution, and has admitted that he has stated the facts suggested by Public Prosecutor during the cross examination and this fact clearly supports the story pleaded by prosecution. Surprisingly,t here is not detailed cross-examination of this witness. Therefore, CR.A/70419/1999 5/11 JUDGMENT the evidence of this witness should be evaluated in that prospective. Forensic Science Laboratory's report suggests that the umbrella recovered at the instance of the accused was having blood stains and the blood group on serological examination is found similar to the blood group which was found on the cloth of the deceased. The dyeing declaration is supported by one more corroborative piece of evidence, i.e history given by the deceased to the Doctor who treated the deceased in the hospital. The map produced and proved also indicates that the accused had taken his wife to somewhat interior side of the road but the place is not at that big distance. She therefore submitted that the learned trial Judge has rightly evaluated the evidence, and there is no error in appreciating the oral as well as documentary evidence produced by the prosecution. True it is, the panchas have not supported the case of the prosecution but this infirmity in evidence does not go to the root of the case of the prosecution and therefore, she submitted that the appeal deserves to be dismissed. We have heard Ms. Shilpa Shah for the appellant and Ms. Darshana Pandit, Additional Public Prosecutor for the State at length and in great detail. We have also perused the record and proceedings of the case and the evidence adduced in the matter. The learned trial Judge has evaluated the oral as well as documentary evidence. Total 15 witnesses were examined during the course of trial and reliance has been placed on relevant documents including FIR and report of FSL. We have carefully gone through the judgment under challenge and the deposition of the officer who has CR.A/70419/1999 6/11 JUDGMENT recorded the complaint of the deceased in the background of the medical evidence collected by the investigating agency and lead during the trial. On reading the deposition of PW.14, PSI Shantilal Kalabhai Garassia, it appears that he is the person who has recorded the complaint of the injured on 06.07.97. He has deposed that when he was in Dahod Rural Police Station, PSO Lakhabhai gave vardhi to him that one lady, in a nude condition, is lying near Star Quarry at village Usarvan and her condition is critical. He has deposed that upon receipt of the vardhi from PSO, he rushed to the spot and found that injured Gangaben, i.e. wife of the appellant was lying there. She gave her statement narrating the entire incident as to how she has received the injuries. After taking of the complaint, PSI Garasiya had taken her thumb impression. The complaint is on record at Exh.28. This document has the status of dyeing declaration. There was no reason to discard this part of evidence. On the strength of the total evidence, it is possible to infer that before any formal dying declaration could be recorded, the Gangaben succumbed to the injuries because of profuse bleeding and other complications on account of the injuries inflicted on the body of deceased Gangaben. According to Mr. Garasiya, he had arranged to send the injured to Government Hospital. Case papers shows the history given by the deceased. Senior officers were also informed through wireless. Formal panchnama of the scene of offence was also drawn and statement of one CR.A/70419/1999 7/11 JUDGMENT witness, Maheshbhai Vijaybhai Bariya, a resident of Usarvan village, was also recorded. According to the prosecution, this witness, during his cross-examination has unfolded the entire story, which directly corroborates the complaint of deceased Gangaben. The learned trial Judge has considered this complaint Exh.28 as dying declaration and has rightly placed reliance on it. The evidence of PSI Garasiya is also trustworthy who has proved the FIR [dyeing declaration] at Exh.28. According to us, this statement Exh.28 has been made by the deceased at the first available opportunity and to the person competent to record. There is no reason for PSI Garasiya to plant any witness namely Maheshbhai Vijay Bariya. Even then, he has acted very carefully and diligently by recording the statement of Maheshbhai Vijaybhai Bariya who witnessed the incident and at the time of recording statement of deceased in the form of a complaint. As per the settled legal position, if the dyeing declaration is found reliable, the accused can be linked with the crime on the strength of the dyeing declaration and there is no need to have any formal corroboration. Seeking corroboration to a dyeing declaration is a rule of prudence and not a rule of law. According to us, in the present case, the learned trial Judge has rightly treated the complaint given by Gangaben as dying declaration and the same is found corroborated by other evidence i.e. statement of the doctor who treated the deceased in hospital and the FSL report lead by the prosecution. According to us, there was no animosity between he accused and the police officer who recorded CR.A/70419/1999 8/11 JUDGMENT the complaint and there was no reason for the police officer to implicate the husband of the deceased in such a heinous crime. The evidence of bad character of accused is inadmissible in evidence unless the statute so permits. We are, therefore, not prejudiced that as the accused was undergoing imprisonment for another serious offence, the Court should jump to a conclusion against the accused. The case of the prosecution was that the accused was suspecting the character of deceased Gangaben and when deceased Gangaben herself has stated that her husband was suspecting her character. This becomes relevant. It proves the motive. Attempt by accused to take her to the place of incident automatically proves the element of inducement. She was taken out of her house to the place of incident. The accused would not be daring to kill his wife in a ruthless manner at her residence. There is some evidence on record to show that reason given by the accused to the deceased so that she can be induced to accompany him was a genuine reason, i.e. about ailment or sickness of his father. It appears that the accused fabricated a story so that the deceased may accompany the accused, who was on parole leave granted by the jail authorities. The weapon used and the part of the body selected for inflicting the injuries is also found relevant. As per the say of the prosecution, the accused had some doubt in his mind about the character of his wife, Gangaben. When no other apparent or probable reason is emerging, it would not be proper for the court to disagree with the findings that the accused, and only the accused, is responsible for the injuries that were seen on the body of the deceased Gangaben during autopsy CR.A/70419/1999 9/11 JUDGMENT performed. The deceased was admitted in the hospital in an injured condition. The case papers of the hospital is also produced by the prosecution and the same is at Exh.21. The injuries mentioned in the case paper are also reflected in the PM Note, Exh.10. She was taken to the hospital and she had survived for some time, meaning thereby that she was physically at the time when her statement, Exh. 28, in the form of a complaint, came to be recorded. There is nothing on record to show that when the injured was taken to the hospital and was admitted she was unconscious. The Doctor who has examined the Gangaben initially has narrated about the details of the injury, and 4 injuries were noticed, and two of them were near her private part. Therefore, according to us, the dying declaration Exh. 28, is very well corroborated by the evidence of PSI as well as two material documents, i.e. the case papers and the Post Mortem Note. The conduct of the accused is also found proved from the fact that he was out of jail on the date of incident. It is also possible to infer that he has induced the deceased to accompany him under the guise of visiting his father who was stated to be suffering from some sickness. Maheshbhai Vijaybhai Bariya ofcourse has not been examined by the prosecution. There is no need to duplicate the evidence. The spot of the incident has been proved by the panchnama of the scene of occurrence and the FSL report Exh. 30 also clearly helps the prosecution. The learned trial Judge has rightly appreciated the crucial documents, viz. report of Serological examination and the report of Chemical CR.A/70419/1999 10/11 JUDGMENT Analyser. The muddamal umbrella has been recovered at the instance of the accused, and as per the report of the Chemical Analyser, blood stains were found on the umbrella. Serological report shows that the blood on the umbrella was of group 'O'. The earth, which was collected from the spot of the incident at the time of drawing panchnama of the scene of offence is also found stained with 'O' group blood. In the same way, out of the two pieces of clothes, one was also having blood stains of the same group 'O'. Therefore, there is no reason to doubt the statement of the deceased about the manner in which the offence was committed, the person responsible for inflicting the injuries on the body of the deceased as also the article/weapon used for causing the injuries. In the circumstances, there is ample corroborative evidence which strengthens the statement at Exh.28, i.e. the complaint or dying declaration. It would, therefore, be difficult for us to agree with the submissions made by Ms. Shilpa Shah that the accused should be given benefit of doubt. According to Ms. Pandit, learned AGP, when there is no apparent error or perversity in the findings of guilt recorded by the learned trial Judge, the conviction should not be reversed on any 'ifs and buts'. As such, there was no clear-cut defence by the accused when the witnesses were cross-examined on behalf of the accused. We are, therefore, not inclined to interfere with the findings and conclusions arrived at by the learned trial Judge. The charge in the present case was framed against the accused for offences punishable under sections 303 CR.A/70419/1999 11/11 JUDGMENT and 75 of the IPC. The learned trial Judge has rightly held that the accused cannot be held guilty under section 303 of IPC as the said section has been held violative of Article 14 and 21 of the Constitution by the Hon'ble Supreme Court. The trial Judge has rightly convicted and sentenced the accused under section 302 of the IPC. In the circumstances, there is no merit in the appeal. The appeal is dismissed. [C.K.BUCH, J.] mathew [H.B.ANTANI, J.]