IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No 316 of 1994 For Approval and Signature: Hon'ble MR.JUSTICE M.H.KADRI and Hon'ble MR.JUSTICE SHARAD D.DAVE ============================================================ 1. Whether Reporters of Local Papers may be allowed : NO 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 @ DAVE KAUSHIKKUMAR PREMSHANKER Versus THE STATE OF GUJARAT -------------------------------------------------------------- Appearance: 1. Criminal Appeal No. 316 of 1994 MR JM PANCHAL for the appellant Mr. A.J. Desai, APP, for Respondent No. 1 -------------------------------------------------------------- CORAM : MR.JUSTICE M.H.KADRI and MR.JUSTICE SHARAD D.DAVE Date of decision: 24/06/2002 ORAL JUDGEMENT (Per : MR.JUSTICE M.H.KADRI) 1. Original accused No.1 has filed this appeal under Section 374(2) of the Code of Criminal Procedure, 1973, against the judgment and order dated February 9, 1994, passed by the learned Additional Sessions Judge, Mehsana, Camp at: Patan, in Sessions Case No.203 of 1993, by which judgment and order, the appellant was convicted under Sections 201, 498A and 302 of the Indian Penal Code and sentenced to undergo the imprisonment of life. 2. It is the case of the prosecution that the appellant along with his father and mother, Shantaben Premshanker Dave (original accused No.2), resided at village Narsinhpura, Taluka: Kadi, District: Mehsana. The marriage between the appellant and Dakshaben, daughter of P.W.4, Himmatlal Jatashanker Bhatt, was solemnized on May 19, 1991. Out of the wedlock, Dakshaben had given birth to a female child, Krupa, who was aged about one year on the date of the incident, i.e. June 6, 1993. As per the prosecution case, deceased Dakshaben was treated with cruelty by the mother-in-law and the appellant. She had written letters to her father and had also orally complained about the cruelty meted out to her by the appellant and his mother. It is alleged that, on June 6, 1993, at about 10 p.m. the original accused No.2, Shantaben Premshanker Dave, started quarreling with the deceased. At that time, the appellant was present in the house and he also started quarreling with deceased Dakshaben and told her to go to her parents house. The appellant, thereafter, got enraged and poured kerosene, which was filled in a small tin, on the body and clothes of deceased Dakshaben and set her ablaze. It is alleged that, when the deceased tried to come out of the kitchen, the appellant had pushed her into the kitchen. Thereafter, deceased Dakshaben was brought to Kadi in a jeep and was admitted in Bhagyoday Hospital, Kadi, and an accidental entry was made at the Kadi Police Station through the message conveyed by P.W.2, Dr. Tejas Patel (Exh.22). P.W.13, PSI, S.B. Trivedi, entered the incident as accidental entry at Case no.82/92 and went to Bhagyoday Hospital where he recorded the statement of deceased Dakshaben. Before going to the Hospital, P.W.13, PSI, S.B. Trivedi, informed a worker of Social Defence Organization, Ms. Ritaben Vyas, P.W.11, who had also accompanied the PSI to the Hospital. The statement of the deceased was recorded by the PSI wherein she had stated that, when she was preparing tea on a kerosene stove at her residence around 10 p.m., she sustained burn injuries as the polyster saree put on by her caught flames of the stove. The said statement was also endorsed by the social defence worker, Ms. Ritaben Vyas, P.W.11, who was also a practising advocate. P.W.13 PSI, S.B. Trivedi had also sent yadi to the Executive Magistrate, Kadi, and a dying declaration was recorded by the Executive Magistrate, Kadi, which was produced at Exh.71 on the record of the case. In the dying declaration also, deceased Dakshaben had made statement that she had sustained burn injuries while she was preparing tea in her house around 10 p.m. 3. As deceased Dakshaben had sustained serious burn injuries, Dr. Tejas Patel advised the appellant to take her to Ahmedabad and get her admitted in the Civil Hospital. Accordingly, deceased Dakshaben was taken to the Civil Hospital, Ahmedabad. It is the prosecution case that deceased Dakshaben was, thereafter, shifted to a private clinic, i.e. Dr. Jarmarwala Hospital, near Ambawadi, Ahmedabad, and was admitted in the said Hospital on June 7, 1993 at 11.00 a.m. The appellant had also sustained injuries on both the hands and, therefore, he was also admitted in the said Hospital and was discharged in the evening of June 11, 1993. The father and the brother along with other relatives of the deceased, on receipt of the information about the deceased having sustained burn injuries, went to Kadi and, thereafter, went to Civil Hospital, Ahmedabad, and, when they were informed that deceased Dakshaben was admitted in Dr. Jarmarwala Hospital, came to the Hospital of Dr. Jarmarwala. It is the prosecution case that the deceased, for the first time, on June 10, 1993, in the late night hours, informed the father and the brother that she had made a statement to the Executive Magistrate on June 6, 1993 that she had sustained burn injuries while she was preparing tea, since she was under the pressure of the appellant and she was threatened by the appellant to make such statement, otherwise, the life of the daughter of deceased Dakshaben would be in danger. She made the statement before her brother and father for the fist time that the appellant and his mother Shantaben had quarreled with her in the night of June 6, 1993; and the appellant had poured kerosene on her clothes and body and, thereafter, she was set ablaze. Thereafter, P.W.5, Prakash Himatlal Bhatt, brother of deceased Dakshaben, in the company of one Ashwinikumar Dave, went to the Kadi Police Station and lodged a report before the P.W.13 PSI, S.B. Trivedi, around 2.30 a.m. on June 11, 1993. P.W.13 PSI, S.B. Trivedi immediately informed the social defence worker, P.W.11 Ms. Ritaben Vyas that they were required to go to Ahmedabad to record the statement of deceased Dakshaben. P.W.13 PSI, S.B. Trivedi, accompanied by P.W.11 Ms. Ritaben Vyas, came to the Hospital of Dr. Jarmarwala. PSI, S.B. Trivedi, recorded the statement of deceased Dakshaben around 4.30 a.m. on June 11, 1993. Below the said statement, P.W.11 Ms. Ritaben Vyas made an endorsement. Dr. Jarmarwala had also made an endorsement that deceased Dakshaben was fully conscious at 4.30 a.m. Immediately thereafter, yadi was sent to the Executive Magistrate with a request to come and record dying declaration of deceased Dakshaben. In the said yadi, Dr. Jarmarwala made endorsement that the patient was conscious. The said endorsement was made around 11.00 a.m. The said yadi was received by P.W.3, Rameshchandra Parshottam Patel, Executive Magistrate, around 12.45 p.m. on June 11, 1993. P.W.3, R.P. Patel immediately went to the Hospital of Dr. Jarmarwala, and enquired from Dr. Jarmarwala whether the patient was in a fit state of mind. After ascertaining that deceased Dakshaben was fully conscious and in a fit state of mind, P.W.3, Executive Magistrate, R.P. Patel, started recording of dying declaration of deceased Dakshaben at 13.05 hrs. In the said dying declaration, deceased Dakshaben stated that the incident had taken place on June 6, 1993 at 10 p.m. at village Narsinhpura, and, at that time, she had put on a coffee colour polyester saree and coffee colour blouse. She stated that the quarrels used to take place between her and the mother in law and she was treated with cruelty by the mother in law and the appellant. She stated that, on the night of June 6, 1993, the mother in law had quarrelled with her and the appellant had also started quarreling with her and, in that process, the appellant got enraged and poured kerosene stored in a small tin and the mother in law and the appellant set her ablaze. She also stated that when she tried to come out of the kitchen, the appellant caught hold of her. She stated that she was brought to Bhagyoday Hospital, Kadi, in a jeep owned by the friend of the appellant. In the dying declaration, she also made statement that she was treated with cruelty by the appellant and her mother in law. The dying declaration of the deceased was produced as duly proved by P.W.3, R.P. Patel, at Exh.30. The said declaration was attested by the two witnesses, namely, (i) I.H. Dave, Clerk, having his office at M.S.Building, at Ahmedabad, and (ii) Manjula Vyas. It is pertinent to note that the copy of the said dying declaration, which was supplied to the appellant, did not bear the signatures of the two attesting witnesses, namely, I.H. Dave and Manjula Vyas. The said copy of the dying declaration which was supplied to the appellant was also admitted in evidence at Exh.31. An offence was registered by P.W.13 PSI, S.B. Trivedi, of Kadi Police Station, against the appellant and his mother, Shantaben, under Sections 498A and 307 of the Indian Penal Code. The appellant and his mother came to be arrested on the night of June 11, 1993. Deceased Dakshaben expired on June 14, 1993, in the Hospital of Dr. Jarmarwala. After the death of Dakshaben, a case of murder was registered against the appellant and his mother at Kadi Police Station. The dead body of deceased Dakshaben was sent for post-mortem to the V.S. Hospital. P.W.13 PSI, S.B. Trivedi, had drawn panchanama of place of incident at village Narsinhpura where it was found that, after the incident, the place of the incident was washed and all the incriminating articles were removed from that place. P.W.13 PSI, S.B. Trivedi, recorded statement of witnesses. After collecting post-mortem report and the report of the FSL, charge-sheet came to be filed against the appellant and his mother, Shantaben, for the offences under Sections 302, 498A and 201 of the Indian Penal Code. 4. Charge Exh.7 was framed against the appellant and his mother, Shantaben Premshanker Dave, at Exh.7, for offences under Sections 302, 498A and 201 of the Indian Penal Code. To prove the charge against the appellant and his mother, Shantaben, the prosecution had led oral as well as documentary evidence. Both the accused persons were questioned with regard to incriminating evidence led against them and their statements came to be recorded under Section 313 of the Code of Criminal Procedure. 5. On appreciation of evidence led by the prosecution, the learned Additional Sessions judge, came to the conclusion that the dying declaration and the statement before P.W.13 PSI, S.B. Trivedi, made by deceased Dakshaben, at Kadi, were made under pressure and influence of the appellant and they were not voluntary. The learned Additional Sessions Judge held that the statement made before P.W.13 PSI,S.B. Trivedi, at Ahmedabad, in the early morning hours of June 11, 1993 and the dying declaration recorded by Executive Magistrate, R.K. Patel, at Ahmedabad, were voluntary statements made by deceased Dakshaben which implicated the appellant. The learned Additional Sessions Judge held that the deceased was meted out with cruelty by the appellant and the deceased was set ablaze by the appellant on June 6, 1993 at 10 p.m. in his residence at village Narsinhpura by pouring kerosene on her. It is further held by the learned Additional Sessions Judge that the appellant had destroyed evidence against him by cleaning the place of incident and removing all incriminating articles from that place. However, the learned Additional Sessions Judge, surprisingly, acquitted original respondent No.2, the mother of the appellant, Shantaben Dave, from the charges against her on the same set of evidence. It may be stated that the State of Gujarat had filed Criminal Appeal No.685 of 1994 against the order of acquittal recorded by the learned Additional Sessions Judge acquitting the original accused No.2, Shantaben Dave, from the charges under Sections 302, 498A and 201 of the Indian Penal Code, which came to be dismissed by the Division Bench of this Court vide order dated July 22, 1996. The appellant was convicted of the offence under Sections 302, 498-A and 201 of the Indian Penal Code, and sentenced to undergo R.I. for life for the offence under Section 302 of the Indian Penal Code; S.I. for one year and fine of Rs.500 in default S.I. for one month for the offence under Section 498 of the Indian Penal Code; and S.I. for one year and fine of Rs.500 in default S.I. for one month for the offence under Section 201 of the Indian Penal Code, which has given rise to filing of the present appeal by the appellant. 6. Learned counsel, Mr. Jayant M. Panchal, appearing for the appellant, and learned Additional Public Prosecutor, Mr. A.J. Desai, have taken us through the entire evidence produced by the prosecution. 7. It is contended by the learned counsel for the appellant that there are two sets of dying declaration, one in favour of the appellant and another against him, and, therefore, benefit of doubt should be extended in favour of the appellant. It is contended by the learned counsel for the appellant that the statement of deceased Dakshaben made before P.W.13, PSI, S.B.Trivedi, had become dying declaration after her death and the dying declaration recorded by the Executive Magistrate, at Kadi (Exh.71) was first in point of time and the Court should rely upon this document for holding that the appellant had not poured kerosene on the deceased and she had sustained accidental burn injuries while she was preparing tea. It is contended by the learned counsel for the appellant that, even though PSI, S.B. Trivedi, and the social worker, Ritaben Vyas, PW 11, had admitted in evidence that such statement and dying declaration were made by deceased Dakshaben at Kadi, the prosecution with a view to suppress the dying declaration recorded by the Executive Magistrate did not produce it on the record nor examined the Executive Magistrate. It is submitted that the learned Additional Sessions Judge was convinced that the said dying declaration was made by the deceased at Kadi immediately after the incident and, therefore, had admitted it in evidence at Exh.71. It is submitted by the learned counsel for the appellant that the said dying declaration made by the deceased produced at Exh.71 was a truthful and convincing statement made by the deceased immediately after the occurrence of the incident which disclosed that the deceased had sustained burn injuries while she was preparing tea at her residence at village Narsinhpura around 10 p.m. on June 6, 1993. It is contended by the learned counsel for the appellant that when there were two inconsistent dying declarations, the benefit of doubt should go in favour of the accused-appellant. It is further contended by the learned counsel for the appellant that when there were inconsistencies and infirmities in two dying declarations, the Court should be reluctant in accepting the dying declaration involving the appellant and the benefit of doubt should go in favour of the appellant. In support of the submission, the learned counsel for the appellant has placed reliance on the decision of the Supreme Court in the case of Arvind Singh vs. State of Bihar, reported in 2001 Supreme Court Cases (Cri) 1148. 8. The learned Additional Public Prosecutor, Mr. A.J. Desai, on the other hand, has submitted that the deceased was under the pressure and influence of the appellant while she was admitted at Bhagyoday Hospital, at Kadi, and she had made statement before PSI, S.B. Trivedi, and had given dying declaration before the Executive Magistrate at Kadi under the pressure of the appellant as the appellant had given threat that her daughter would be met with the same fate if she does not give the statement that she had sustained burn injuries while she was preparing tea. The learned Additional Public Prosecutor has further submitted that the statement and the dying declaration made by the deceased at Kadi were not truthful and, therefore, the learned Judge was justified in discarding the same. It is contended that, as soon as the relatives of the deceased arrived at the hospital of Dr. Jarmarwala, at Ahmedabad, the deceased had made statement and had given dying declaration before the Executive Magistrate that, as she was under pressure and threat of the appellant, she was made to say that she had sustained injuries while preparing tea but in fact had sustained injuries as a result of the appellant pouring kerosene on her and setting her ablaze. The learned Additional Public Prosecutor has further submitted that the oral evidence of the father, P.W.4, Himmatlal Bhatt, and the brother, P.W.5, Prakash Bhatt, proved beyond doubt that the deceased was meted out with cruelty by the appellant. The learned Additional Public Prosecutor has submitted that, if the Court finds that the earlier dying declaration made by the deceased is not truthful and trustworthy then it is open for the Court to rely on the subsequent dying declaration given by the deceased on her own free will after she had come out of the pressure, influence and threat of the appellant. In support of the contention, The learned Additional Public Prosecutor has placed reliance on the decision of the Supreme Court in the case of Harjit Kaur vs. State of Punjab, reported in AIR 1999 Supreme Court 2571. It is contended by the learned Additional Public Prosecutor that the deceased, who was a young graduate girl, had met with tragic death within two years of the marriage with the appellant, and, in view of the satisfactory evidence led by the prosecution to prove the charge against the appellant, the appeal should be dismissed. 9. We have considered the submissions advanced at the Bar and reappreciated the whole evidence on record. As the whole case of the prosecution against the appellant is based on two sets of dying declarations made by the deceased, it would be worthwhile to notice the law on dying declaration. 10. Section 32(1) of the Indian Evidence Act, 1874, 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 witness 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; (i) Whether the victim was in a position to identify the assailant/s ? (ii) Whether the version narrated by the victim is intrinsically sound and accords with probabilities ? and (iii) Whether any material part is proved to be false by other reliable evidence ? In Khushal Rao vs. State of Bombay, 1958 SCR 552 = AIR 1958 SC 22, the law on the subject has been clearly and succinctly enunciated by the highest Court of the land as under: "On a review of the relevant provisions of the Evidence Act and of the decided cases in the different High Courts in India and in this Court, we have come to the conclusion, in agreement with the opinion of the Full Bench of the Madras High Court, aforesaid (1) that it cannot be laid down as an absolute rule of law that a dying declaration cannot form the sole basis of conviction unless it is corroborated; (2) that each case must be determined on its own facts keeping in view the circumstances in which the dying declaration was made; (3) that it cannot be laid down as a general proposition that a dying declaration is a weaker kind of evidence than other pieces of evidence, (4) that a dying declaration stands on the same footing as another piece of evidence and has to be judged in the light of surrounding circumstances and with reference to the principles governing the weighing of evidence; (5) that a dying declaration which has been recorded by a competent Magistrate in the proper manner, that is to say, in the form of questions and answers and as far as practicable, in the words of the maker of the declaration, stands on much higher footing than a dying declaration which depends upon oral testimony which may suffer from all the infirmities of human memory and human character and (6) that in order to test the reliability of a dying declaration, the Court has to keep in view the circumstances like the opportunity of the dying man for observation, for example, whether there was sufficient light if the crime was committed at night; whether the capacity of the man to remember the facts stated had not been impaired at the time he was making the statement, by circumstances beyond