CR.A/406/1999 1/27 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 406 of 1999 For Approval and Signature: HONOURABLE MR.JUSTICE A.M.KAPADIA HONOURABLE MS.JUSTICE H.N.DEVANI ===================================================== 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 ? ===================================================== RAKESH GORDHANBHAI PATEL - Appellant(s) Versus STATE OF GUJARAT - Opponent(s) ===================================================== Appearance : THROUGH JAIL for Appellant(s) : 1,MS SADHANA SAGAR, Appointed by Legal Aid MR. R.C.KODEKAR, APP for Respondent(s) : 1, ===================================================== CORAM : HONOURABLE MR.JUSTICE A.M.KAPADIA and CR.A/406/1999 2/27 JUDGMENT HONOURABLE MS.JUSTICE H.N.DEVANI Date : 26.09.2007 / 5.10.2007 ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE A.M.KAPADIA) 1. Challenge in this Appeal, filed under Section 374 of the Code of Criminal Procedure (“the Code” for short) is to the correctness of the judgment and order dated 1.4.1999 rendered in Sessions Case No. 254 of 1997 by the learned Additional Sessions Judge, Surat, by which the sole Appellant (“the Accused” for short) has been convicted for commission of the offences punishable under Sections 302 and 498A of the Indian Penal Code (“IPC” for short), and sentenced to suffer imprisonment for life and fine of Rs.2000/- i.d. simple imprisonment of 6 months for the offence punishable under Section 302 IPC and RI for 2 years and fine of Rs.500/- id SI of 2 months for the offence punishable under Section 498A IPC. It is also ordered that both the sentences shall run concurrently. 2. The prosecution case as disclosed from the FIR and unfolded during trial is as under: 2.1 As per the allegations made by PW-1 Shantaben Lallubhai, her elder daughter Kamlaben married the Accused prior to five years of the incident. Since five years, prior thereto, her CR.A/406/1999 3/27 JUDGMENT daughter Kamlaben was living with one Rakesh Gordhanbhai Patel, who was residing near their hut, as his wife. She had two sons, namely Suresh, aged 3 years and Kirit, aged 9 months. Her son-in-law Rakesh used to search for diamonds in the gutter and earn his livelihood by selling the same. Rakesh's parents were residing at Gotalvadi in Surat. She has further stated that Rakesh and her daughter, along with their children, were residing near their hut in their make-shift hut. Rakesh had the habit of drinking liquor and, off and on, he used to quarrel with his daughter Kamlaben and beat her. However, as she had two children, she used to believe that he would mend his ways, and so, she had never complained to them. She has further stated that on Monday, 9.6.1997, in the morning at 9 0' Clock, she had gone to attend her work and in the afternoon, at about 1 0' Clock, her son-in-law Rakesh and her younger daughter Radhaben had come to her place of work and told her to come home as Kamlaben had caught fire. At that time, she asked them as to how she had caught fire, whereupon, they had informed her that she had poured kerosene on herself and set herself ablaze. Upon their saying so, she had immediately come to her house and upon going near Kamla's hut, she had seen that Kamlaben had sustained burns all over her body. At that time, she was not speaking. Thereafter, they had called an ambulance and taken Kamlaben to the New Civil Hospital for treatment. On reaching there, she had asked her as to what had CR.A/406/1999 4/27 JUDGMENT happened, whereupon she had told her that her husband was severely beating her after consuming liquor and was harassing her. Therefore, she had poured kerosene on herself and set herself on fire. Thereafter, Kamlaben had been admitted to the Burns Ward and she had remained there in the hospital to take care of her, and that, on the previous day, on 12.6.1997, in the afternoon at about 2 0' Clock, as she had stayed in the hospital continuously for about four days, she had gone home and her son-in-law Rakesh and her son Naran and another neighbour Dhoju Rabadia were there with her daughter at the hospital. She has stated that on the previous night, she, her husband and children had taken their meals and gone to sleep, after which at about 2 0' Clock, her son Naran and son-in-law Rakesh had come home and informed them that Kamlaben had expired at midnight, at about 12:15 hrs., and that Kamlaben's dead body was kept in the postmortem room in the hospital. Accordingly, she had lodged the complaint that her son-in-law Rakesh used to consume liquor and beat her daughter Kamlaben and harass her, and as such, on 9.6.1997, she had poured kerosene on her body and set herself on fire, and had expired during the course of treatment in the Government Hospital. 2.2 Complaint for the aforesaid incident was lodged by PW-1 Shantaben Lallubhai on 13.6.1997 against the Accused at Surat Railway Police Station, which was recorded by PW-20 CR.A/406/1999 5/27 JUDGMENT Bharatsingh Baburao Patil, PSI of Surat Railway Police Station. He, registered the offence against the Accused and started investigation. During the course of investigation, he has also collected the janvajog entry, which was registered by PW-22, Damabhai Amarsinh Parmar, Head Constable, on 9.6.1997. He held the inquest on the dead body of the deceased and sent the dead body for autopsy. He has arrested the Accused on the same day. He thereafter recorded the statement of the witnesses and thereafter handed over the further investigation to PW-25 Fakruddin Mohammedbhai Bata. 2.3 As, sufficient incriminating evidence was found against the Accused for commission of the offences punishable under Sections 306 and 498A IPC, he filed charge sheet against the Accused for commission of the offence punishable under Sections 306 and 498A IPC, in the court of learned JMFC (Railway) Surat. 2.4 As the offences under Sections 306 and 498A IPC are exclusively triable by the Court of Sessions, the leaned JMFC committed the case to the Court of Sessions, at Surat. 2.5 The learned Additional Sessions Judge, Surat, to whom the case was made over for trial, framed charge against the Accused for commission of the offence punishable under Sections 306 and 498A IPC. The charge was read over and explained to the accused. The Accused pleaded not guilty to the charge and claimed to be CR.A/406/1999 6/27 JUDGMENT tried. Therefore, he was put to trial by the learned Additional Sessions Judge, Surat in Sessions Case No. 254 of 1997. 2.6 In order to bring home the charge levelled against the Accused, the prosecution has examined as many as 25 witnesses and relied upon their oral testimony, the details of which have been narrated in paragraph 5 of the impugned judgment and order. They are as under: PW No. Name and Status Exhibit Page No. 1 Shantaban Lallubhai, Mother of the deceased. 13 60 2 Lallubhai Babubhai Gosai, Father of the deceased. 15 66 3 Jariyatsingh Rajpatsingh Thakur 18 4 Kanaiyalal Laxmanbhai Pawar, Panch witness 21 74 5 Dr. Sejalben Chandrakantbhai Reshambala, Medical Officer 24 77 6 Manjuben Vijaybhai Rathod, Neighbour of the deceased. 25 75 7 Vijaybhai Kachrabhai, Independent witness 26 81 8 Devkaben Babubhai, Independent witness 27 83 9 Pushpaben Naranbhai, Bhabhi of the deceased. 28 85 10 Narayan Lallubhai, Brother of the deceased. 29 89 CR.A/406/1999 7/27 JUDGMENT PW No. Name and Status Exhibit Page No. 11 Radhaben Lallubhai, Sister of the deceased. 30 89 12 Dr. Mohammed @ Eshaq Mohammed Sheikh, Expert evidence. 33 93 13 Manjulaben Ishwarbhai, Independent witness 35 104 14 Nareshbhai Lallubhai, Brother of the deceased. 36 106 15 Ishwarbhai Ranchodbhai, Independent witness 37 107 16 Hiralal Uttam Patil 38 17 Babubhai Punabhai, Head Constable 40 111 18 Sudhakar Parasram, PSO Mahidharpura Police Station 44 115 19 Arjunsingh Roopsingh, P.S.O. Surat Police Station 46 118 20 Bharatsingh Baburao Patil, PSI, Surat Raiwlay Police Station 52 121 21 Natvarsingh Jitsingh Gohil, PSI, Mahidharpura Police Station. 54 126 22 Damabhai Amarsingh Parmar, Head Constable, Surat Railway Police Station 56 128 23 Dr. Prashantbhai Ramniklal Bhatt, Expert Evidence. 60 132 24 Ramdas Shankarsinh Shah, Duty Constable at Civil Hospital. 62 136 25 Fakruddin Mohemmadbhai Bata, Dy. SP. 63 38 CR.A/406/1999 8/27 JUDGMENT 2.7 To prove the culpability of the Accused, the prosecution has also produced number of documents and relied upon the contents of the same, the details of which are mentioned in second part of paragraph 6 of the impugned judgment and order. They are as under: Srl. No. Particulars Exh. 1. Complaint. 14 2. Inquest Panchnama. 8 3. Panchnama of scene of offence. 39 4. Panchnama of the body of the deceased. 22 5. True copy of Diary Entry No. 21/97 at Surat Railway Police Station. 47 6. True copy of Vardhy Entry No. 163 at Surat Railway Police Station. 41 7. True copy of Diary Entry No. 21/97 at Mahidharpura Police Station. 45 8. PM Note of deceased Kamlaben. 34 9. DD taken by Executive Magistrate. 19 10. Yadi by Executive Magistrate. 55 11. Case papers prepared while admitting Kamlaben in the Hospital. 61 2.8 It may be noted that, after the evidence of the prosecution witnesses was over, learned APP submitted an Application exh. 66, inter alia contending that, from the evidence of Doctor, it revealed that the Accused has committed offence punishable under Section 302, CR.A/406/1999 9/27 JUDGMENT therefore, in the interest of justice, initial charge framed against the Accused for commission of the offence under Section 306 IPC may be altered into 302 IPC. 2.9 The said Application was opposed by the Accused inter alia submitting that, the Application was submitted with a view to delay the trial. The Accused has submitted that after the evidence of the prosecution witness was over, prosecution has no right to submit such an Application, and even in view of the inconsistent evidence of the Doctor, evidence of the prosecution witness is not believable, and therefore, it was prayed to dismiss the Application. 2.10 The trial Court accepted the Application and thereby altered the charge against the Accused from 306 IPC to 302 IPC by passing a reasoned and detailed order. The said order was not challenged by the Accused in the higher forum. 2.11 After altering the charge from 306 IPC to 302 IPC, the trial Court explained to the Accused, the circumstances appearing against him and recorded his further statement under Section 313 of the Code. In his further statement, the Accused denied the case of the prosecution in its entirety. He has stated that a false case has been filed against him. However, he has, neither led any evidence nor examined any CR.A/406/1999 10/27 JUDGMENT witness in support of his defence. 2.12 On appreciation, evaluation, analysis and scrutiny of the evidence on record, the trial Court came to the conclusion that the prosecution has successfully established the complicity of the Accused for committing murder of his wife, as she died a homicidal death. It was also held that though all the witnesses have turned hostile, prosecution has established the guilt of the Accused from the evidence of the dying declaration made by the deceased to the Doctor, who first treated her, and to Police Officer, who has recorded the vardhy. The prosecution has also established that the deceased was subjected to mental and physical cruelty at the hands of the Accused. Therefore, the prosecution has established that the Accused has committed the murder of his wife. It was also held by the trial Court that the deceased was mentally and physically harassed at the hands of the Accused. On the aforesaid findings, the trial Court held that the complicity of the Accused for murdering his wife as well as causing mental and physical cruelty to her has been duly established, and consequently, the trial Court convicted the Accused for the offences punishable under Sections 302 IPC and 498A IPC, and imposed the sentences, to which the reference is made in earlier paragraph of this judgment, which has given rise to the instant Appeal at the instance of the Accused. CR.A/406/1999 11/27 JUDGMENT 3. Ms. Sadhna Sagar, learned advocate of the Accused, appointed by legal aid committee, has submitted that there is no eye witness to the incident. The case of the prosecution, is based on two sets of dying declarations made by the deceased, one of which is made before PW-23 Dr. Prashant Ramniklal Bhatt to the effect that her husband had sprinkled kerosene on her and set her ablaze. Similar dying declaration was also made by the deceased before PW-24 Ramdas Shankarsinh Shah, who was on duty at Civil Hospital. On the basis of the said dying declaration, entry in the vardhy was recorded at Mahidharpura Police Station, which was conveyed by PW-24 Ramdas Shankarsinh Shah, duty Constable at Civil Hospital. So far as second set of dying declaration is concerned, which the deceased had stated before PW-5 Dr. Sejalben Chandrakantbhai Reshamvala, it is to the effect that the deceased had committed suicide by sprinkling kerosene on herself and setting herself ablaze. Similar version is also given by her in the dying declaration which was recorded by PW-3 Jariyatsingh Rajpatsingh Thakur, Executive Magistrate. She has further submitted that the dying declarations, which were made by the deceased, were before the independent persons, are in two sets. Therefore, it is not coming on record, which dying declaration is correct. 3.1 It is also contended by her that initially the charge sheet was filed and the CR.A/406/1999 12/27 JUDGMENT charge was also famed against the Accused for commission of the offence punishable under Sections 306 and 498A IPC. At the end of trial, before recording further statement, charge was altered from 306 to 302 IPC. Therefore benefit of doubt must go to the Accused. However, the learned Judge has recorded the conviction against the Accused for commission of the offence punishable under Section 302 IPC without affording any reasonable opportunity to defend his case. She has also emphasized that even if we accept the second set of dying declaration, in that case also it has to be held that the deceased had committed suicide. Committing suicide itself cannot be punishable for the offence of abetment to suicide punishable under Section 306 of the IPC unless there is an evidence to the effect that the deceased was harassed by the husband to such an extent that the harassment was incessant, persistent and unbearable in nature which could have led the deceased to take such an extreme step of committing suicide. Even if, in case we accept the second set of dying declaration, she has stated that, because her husband used to consume liquor and beat her, therefore, she has committed suicide. It is also pointed out that, so far as complaint lodged by PW-1 Shantaben Lallubhai is concerned, which is lodged for commission of the offence punishable under Section 306 IPC, however she has not supported the complaint and resiled from the statement made in the complaint, therefore, offences CR.A/406/1999 13/27 JUDGMENT punishable under Sections 306 and 498A IPC are also not made out. Therefore, according to her, the impugned judgment and order passed against the Accused, convicting him for the offence punishable under Sections 302 and 498A IPC deserves to be quashed and set aside by allowing this Appeal and thereby acquitting the Accused of the offences with which he was charged. 3.2 Alternatively, it is also submitted by her that the Accused has already undergone 7 ½ years imprisonment, therefore, even if this Court comes to the conclusion that the offence under Section 306 is made out, then in that case, the period undergone by the Accused may be treated as substantive sentence for the offence punishable under Section 306 IPC, as the maximum punishment for the offence punishable under Section 306 IPC is RI of 10 years. She, therefore urged to pass appropriate orders by altering the conviction recorded under Section 302 IPC to 306 IPC and accordingly period undergone by the Accused may be treated as substantive sentence. She, therefore, urged to pass appropriate order in this regard. 4. In counter submission, Mr. R.C.Kodekar, learned APP for the Respondent – State of Gujarat has submitted that there is ample evidence on record to connect the Accused with the crime in question. Referring to the evidence of dying declarations, it is submitted by him that the first dying declaration is recorded by PW-23 Dr. CR.A/406/1999 14/27 JUDGMENT Prashant Ramniklal Bhatt before whom the deceased had given the statement that her husband had sprinkled kerosene on her and set her ablaze. According to him, so far as the second set of dying declaration is concerned, which the deceased had stated before PW-5 Dr. Sejalben Chandrakant Reshamvala and PW-3 Jariyatsingh Rajpatsingh Thakur, possibility cannot be ruled out that the deceased must have been tutored subsequently by her family members, and that is the reason that the family members of the deceased have not supported the prosecution case. Therefore, no reliance can be placed on the second set of dying declaration. 4.1 It is settled principle of law that so far as dying declaration is concerned, normally the first version given by the deceased in conscious state of mind, should be accepted. It is also highlighted by him that the complicity of the Accused for commission of the offence of committing murder of his wife is duly established, therefore, same should not be interfered by this Court. It is, therefore, submitted that the Appeal being devoid of merits, may be dismissed by confirming the impugned judgment and order. He, therefore, urged to dismiss the Appeal. 5. This Court has considered the submissions advanced by the learned advocates appearing for the parties and perused the impugned judgment and order. This Court has undertaken a complete CR.A/406/1999 15/27 JUDGMENT and comprehensive appreciation of all vital features of the case and the entire evidence on record, which is read and re-read by the learned advocates of the parties with reference to broad and reasonable probabilities of the case. This Court has examined the entire evidence on record for itself independently of the learned Judge of the trial Court and considered the arguments advanced on behalf of the Accused and infirmities pressed, scrupulously with a view to find out as to whether the trial Court has rightly recorded the order of conviction and sentence. 6. There is no dispute to the fact that the deceased Kamlaben died an unnatural death due to burn injuries. To prove this fact, the prosecution has examined and relied upon the oral testimony of PW-12 Dr. Mohammad Iliyas Eshak Mohammad Sheikh, Assistant Professor, New Civil Hospital, Surat, at exh. 33. He had testified that on 13.6.1997 at 3:00 pm deceased Kamlaben was brought to him for performing postmortem. He had performed the postmortem on the dead body of the deceased and thereafter issued PM report, which is on record at exh. 34. On a conjoint reading of oral testimony of PW-12 and autopsy report at exh. 34, it is seen that the cause of death of the deceased Kamlaben was due to shock and septicemia, as a result of the extensive burns. Therefore, it has to be held that the deceased Kamlaben had died an unnatural death. CR.A/406/1999 16/27 JUDGMENT 7. It may be noted that the prosecution has filed charge sheet against the Accused for commission of the offences punishable under Sections 306 and 498A IPC, meaning thereby, when the charge sheet was filed, the case of the prosecution was that the deceased died a suicidal death. However, at the end of the trial before recording the further statement, on the basis of the Application submitted by the learned APP, charge was altered from 306 to 302 IPC in view of the evidence of PW-23 Dr. Prashant Ramniklal Bhatt and evidence of PW-24 – Ramdas Shankarsinh Shah, before whom the deceased had made a statement with regard to her death. 8. In the instant case, there is no eye witness. PW-1 Shantaben Lallubhai, who lodged the complaint, which is on record at exh. 14, which is for suicidal death abetted by the Accused punishable under Section 306 as well as 498A IPC, has not supported the contents of the complaint nor PW-2 Lallubhai Babubhai Gosai has supported the prosecution case even with regard to abetment made by the Accused to the deceased to commit suicide. Similarly, most of the witnesses have turned hostile. Therefore, as observed earlier, entire case is based on the evidence of the two sets of dying declarations, which is required to be discussed in extenso. 9. Before appreciating the evidence of the witnesses, before whom the dying declarations were made by the deceased, it would be relevant CR.A/406/1999 17/27 JUDGMENT to notice the law relating to dying declaration. In case of Paniben v/s State of Gujarat, 1993 (2) GLR, 985, the Supreme Court has formulated the principle laid down in several judgments of the Supreme Court governing dying declarations. A Division Bench of this Court in the case of State of Gujarat v. Maniben, 2001 (2) GLR 1749, has very succinctly stated the law in this regard as under: “Section 32(1) of the 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 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 scrutinize all the dying declarations to find out if each of them passes the test of being trustworthy. The Court must further find out whether CR.A/406/1999 18/27 JUDGMENT 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 that 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