CR.A/1/6901 1/15 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 169 of 2001 For Approval and Signature: HONOURABLE MR.JUSTICE J.R.VORA sd/- HONOURABLE MR.JUSTICE Z.K.SAIYED sd/- ========================================================= 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 ? ========================================================= RAMESHBHAI DAHYABHAI - Appellant(s) Versus STATE OF GUJARAT & 1 - Opponent(s) ========================================================= Appearance : THROUGH JAIL for Appellant(s) : 1,MS SADHANA SAGAR for Appellant(s) : 1, MR KC SHAH, APP for Opponent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE J.R.VORA and HONOURABLE MR.JUSTICE Z.K.SAIYED Date : 25/09/2008 ORAL JUDGMENT CR.A/1/6901 2/15 JUDGMENT (Per : HONOURABLE MR.JUSTICE Z.K.SAIYED) 1. Present Appellant – original accused in Sessions Case No.253 of 1999 was charged and tried by learned Principal Judge, City Civil & Sessions Court, Ahmedabad, Court No.1, for the offences punishable under Section 498-A and 302 of Indian Penal Code (for short “I.P.C.”). 2. The facts of the prosecution case is that deceased Parasben was staying with her husband, daughter and son. Prior to the date of incident, before 20 years her marriage took place with the present appellant. After marriage, after some time, her husband always came to home in a drunken condition and quarreling with his wife and mental and physical harassment was given to her. But, only to maintain the family and with a hope that her husband will improve himself, she always kept quiet. 3. On 14th June, 1999, at 8.00 P.M. the appellant came home in a drunken condition and started quarrel with the complainant. Thereafter he poured kerosene from the container on the body of complainant Parasben and lighted match stick and complainant Parasben on receiving burnt injury shouted. On hearing the shout neighbours came there and present appellant – husband of Parasben ran away. Parasben received serious burn injuries on different parts of the body like face, breast, hands, legs and on other parts of the body and, therefore, she was admitted in V.S. Hospital, in Burns Ward, by Bharu Singh, Galjibhai. On 14th June 1999 at 10.00 P.M. one message (Vardhi) was received by P.S.O., Kagdapith Police Station. On receiving said message P.S.I. CR.A/1/6901 3/15 JUDGMENT Chhatrasinh Zala rushed to the V.S. Hospital in Burn's Ward and inquired from the hospital staff regarding Parasben and also inquired about the mental condition of Parasben from the Medical Officer. Thereafter, after inquiring about the mental condition consciousness of the complainant from the Medical Officer, complaint was recorded by him and it was read over to Parasben. After ascertaining that the facts stated in the complaint are true he lodged complaint. The complainant was unable to sign below the complaint as her both the hands were burnt, P.S.I. obtained a right leg thumb impression and report was prepared and the offence was registered. Prior to recording of the complaint P.S.I. Jala written Yadi to the Executive Magistrate to record Dying Declaration of Parasben with endorsement of Medical officer. The Executive Magistrate came and recorded the dying declaration. Police Inspector Ganpatsingh Bhimsing Chauhan drawn the panchnama of place of incident and called the expert from F.S.L., through Yadi. Statement of witnesses were recorded and on 15th June 1999 present appellant – accused was arrested and Panchnama of physical condition of accused was drawn and on 21st June, 1999 during the treatment injured Parasben expired. So, Inquest Panchnama was prepared and dead body was sent for autopsy Report. Thereafter the muddamal was seized and through ravangi note it was sent to the F.S.L. tor scientific analysis and on 6.9.1999 charge-sheet was filed before the learned Metropolitan Magistrate, Court No.4, Ahmedabad. 4. After filing the charge-sheet in above case, as the offence was exclusively triable by the Court of Sessions, learned Metropolitan Magistrate, Court No.4, has committed the said CR.A/1/6901 4/15 JUDGMENT case to the Court of Sessions at Ahmedabad. 5. Thereafter the charge (Exh.1) was framed against the appellant. The accused pleaded not guilty to the said charge and claimed to be tried. 6. In order to bring home the charge levelled against the accused the prosecution has examined in all 6 Witnesses and relied upon their oral testimony. They are as under : (1) Chhatrasinh Amarsinh Jala, P.S.I., Ex.7 (2) Savdhanji Vajaji Darbar, Executive Magistrate, Ex.11; (3) Dr. Ravindhra Shrikrushna Bhinshe, Ex.14 (4) Panch Arvindbhai Nanjibhai Yadav, Ex.16; (5) P.I.-IO Ganpatsinh Bhimsinh Chauhan, Ex.18 (6) Dr. Dharmeshbhai Kiritbhai Gohil, Ex.25 To prove the culpability of the accused, the prosecution has also produced and relied upon the following documentary evidence. They are as under : (1) Original complaint – Exh.8; (2) Report regarding the offence – Exh.9 (3) Yadi written to Ex. Magistrate, Ex.12; (4) Dying Declaration Ex.13; (5) Post Mortem Report of decd. Parasben,Exh.15 (6) Inquest Panchnama, Ex.19 (7) Copy of Ravangi nondh Ex.20; (8) Receipt regarding receipt of muddamal by F.S.L. Ex.21; CR.A/1/6901 5/15 JUDGMENT (9) Opinion of F.S.L., Ex.22; (10) Panchnama of scene of offence, exh.23; (11) Panchnama of physical condition of accused Ex.24 7. Thereafter, after examining the witnesses, further Statement of accused under Section 313 Cr.P.C. was recorded in which the appellant – accused has denied the case of the prosecution. 8. After considering the oral as well as documentary evidence and after hearing the parties, the learned Sessions Judge, vide impugned Judgment and Order dated 10th May, 2000, held the appellant – accused guilty to the charge levelled against him for the offence punishable under Section 498(A) and 302 I.P. Code, and convicted and sentenced the appellant – accused to suffer imprisonment for life with fine of Rs.250/- i/d to under go simple imprisonment for 15 days, and the appellant – accused was also convicted under Section 498(A) I.P.C. and sentenced to suffer imprisonment for one year and to pay fine of Rs.250/- i/d to undergo simple imprisonment for 15 days. 9. Being aggrieved by and dissatisfied with the impugned Judgment and Order of conviction and sentence passed by the learned Sessions Judge, the present appellant – accused has filed this Appeal. 10. Heard Ms. Sadhna Sagar, learned Advocate for the appellant – accused and Mr. K.C. Shah, learned APP for the respondent – State. CR.A/1/6901 6/15 JUDGMENT 11. Learned Advocate Ms. Sadhna Sagar for the appellant has contended that the complaint Exh.8 of the deceased cannot be treated as Dying Declaration. She has vehemently contended that from the oral as well as documentary evidence it is established that after receipt of burn injuries she was tutored by some one to give statement against the accused. She has also contended that looking to the medical evidence and the Post Mortem Report, in such a critical condition having severe burn injuries, nobody would be able to say anything. She has also contended that Dying Declaration which was recorded by the Executive Magistrate (Exh.13) is against the provisions of law and from the medical evidence it transpires that this is not a case of murder, but, it is a case of suicide. She, therefore, prayed that in such circumstances, benefit of doubt is required to be given to the appellant – accused and the accused may be acquitted from the charges levelled against him. It is also contended that the evidence of medical expert is not corroborated with the other evidence. It is also contended that the deceased was not in a sound position to speak anything and also not in a good mental condition. She, therefore, prayed that in such circumstances benefit of doubt is required to be given to the appellant – accused and the accused may be acquitted from the charges levelled against him. 12. Learned APP Mr. K.C. Shah for the respondent, has contended that there is voluminous reliable, trustworthy and clinching evidence on record which unequivocally and unerringly proves that the appellant – accused had poured the kerosene and lighted the stick from the match box and set CR.A/1/6901 7/15 JUDGMENT ablaze the deceased and thereby he committed the murder of victim lady. He further contended that from the evidence of the complainant and other witnesses as well as from the documentary evidence, the prosecution has proved the guilt of the accused. He further contended that the prosecution has established its case beyond reasonable doubt and prayed that the Judgment and Order passed by the trial Court is required to be confirmed. He also contended that the trial Court, after fully appreciating the evidence, has rightly convicted and sentenced the appellant – accused. There is no lacuna in the Judgment of the trial Court and prayed to confirm the Judgment and order of conviction and sentence awarded by the trial Court. 13. The Hon'ble Apex Court in a number of decisions held that “it is not the duty of the appellate Court when it agrees with the view of trial Court on the evidence either to restate the effect of the evidence or to reiterate the reasons given by the trial Court”. The said law is laid down by the Hon'ble Court in the case of (1) GIRIJANANDINI DEVI & ORS., v/s. BIJENDRA NARAIN CHOUDHARY, reported in AIR 1967 SC 1124, and (2) in the case of STATE OF KARNATAKA v/s. HEMAREDDY & ANR., reported in AIR 1981 SC 1417. Yet, in the interest of justice and to observe said cause of Appeal in a legal way, we have discussed the evidence as well as the reasons assigned by the trial Court. 14. The prosecution has examined P.S.I. Chhatrasinh Amarsinh Zala, P.W.1, Exh.7, who has recorded the complaint (Exh.8). P.S.I. Shri Zala deposed that on 14th June, 1999, at 10.00 P.M. on receiving the “Vardhi” from P.S.I., he rushed to CR.A/1/6901 8/15 JUDGMENT V.S. Hospital to inquire about victim Parasben. He contacted the Medical Officer and obtained opinion about the mental and physical condition of victim Parasben. Victim Parasben was fully conscious and in a position to give complete reply. P.S.I., therefore, recorded the complaint of Parasben. He has categorically denied the fact that victim was not in a position to speak clearly or was mentally in sound position. We have compared the version of F.I.R. with the Dying Declaration (Exh.13) and oral evidence of P.W.2 – Executive Magistrate Mr. Darbar (Exh.11). It clearly appears that the facts stated in the complaint was repeated before the Executive Magistrate as verbatim by the victim. P.W. 1 is a Police Officer and as per various pronouncement of the Hon'ble Apex Court as well as this Court, it is considered that the Dying Declaration before P.S.I. is admissible and it cannot be discarded. We have not found any illegality from the oral evidence of P.W.1 – P.S.I. and P.W.2 – Executive Magistrate during recording of Dying Declaration. 15. We have perused the oral evidence of Medical Officer P.W.3 – Dr. Ravindra S. Bhinse (Exh.14). This witness has proved the contents of Post Mortem Note (Exh.15) and fairly opined that deceased has received injury by way of homicidal and not the “suicidal”. We have also perused the papers of investigation from the oral evidence of P.W.5 Shri Ganpatsinh Chauhan, Investigating Officer (Exh.18) and we have not found any wrong or illegality in the investigation. It is proved from the Exh.13 that before recording the complaint and dying declaration, Dr. Dharmesh Gohil, P.W.6 (Exh.25) has examined the victim and endorsed that the victim was conscious and was in a position to speak and narrate about the CR.A/1/6901 9/15 JUDGMENT incident. We have compared this oral evidence with Exh.13 – Dying Declaration and complaint (Exh.8). Compared with the dying declaration and the oral evidence of medical expert, it is clearly established that this is not a case of suicide but it is a clear case of murder. 16. From the above, it is clearly established that at the time of recording of Dying Declaration the deceased was fully conscious and was in sound state of mind. The statement made in a form Dying Declaration with the endorsement of medical expert, is a best proof and there is no reason to disbelieve the same. The Dying Declaration is admissible in evidence on which conviction can be based without any further corroboration if dying declaration is found genuine and trustworthy. Looking to the evidence, there is a time gap between recording of dying declaration and occurrence of death, but that by itself would not destroy the evidenciary value of the statement. The statement does not loose its credibility if the declarant chances to live longer than anticipated. The Dying Declaration is a best guarantee of the truth if the statement made by dying person who is totally conscious at the time of recording the Dying Declaration. It is also laid down by the Hon'ble Supreme Court that admissibility of the dying declaration rests upon the principles that a sense of impending death produces in a man's mind the same felling as that of a conscientious and virtuous man under other nemomoriturus praesumiture mentire i.e. a man will not meet his maker with a lie on his mouth. Such statements are admitted upon consideration that their declaration are made in extremity when the maker is at the point of death and when every hope of this world is gone, when every motive to CR.A/1/6901 10/15 JUDGMENT falsehood is silenced and the mind induced by the most powerful consideration to speak the truth. 17. In the case of NAJJAM FARAGHI @ NAJJAM FARUQUI v/s. STATE OF WEST BENGAL, reported in AIR 1998 SC 682, the Hon'ble Supreme Court has observed in Head Note (A) as under : “(A) Penal Code (45 of 1860), S. 300 – Murder – Evidence – Death of woman due to burning – Evidence of post- mortem examiner that it was not case of suicide – No attempt by accused-husband who was admittedly present at scene of occurrence to put out fire and save wife – Dying declaration by wife showing that husband killed her by setting her on fire – mental condition of deceased sufficiently good to give statement to Magistrate – Conviction of accused upheld – Mere fact that case was registered initially under S. 306 and later after examination of witnesses alternative charge under same section was framed – will not vitiate proceedings.” 18. The Hon'ble Supreme Court in number of decisions has propounded and settled the law that (i) there is neither rule of law nor of prudence that dying declaration can not be acted upon without corroboration; (ii) if the Court is satisfied that the Dying Delcaration is true and voluntary, it can base conviction on it without corroboration. We have gone through the medical evidence and also the evidence of Executive Magistrate, who recorded the dying declaration of deceased. We are fully satisfied, on going through the evidence of Executive Magistrate and P.S.I., that the victim was conscious CR.A/1/6901 11/15 JUDGMENT and was in a fit mental condition. The dying declaration was recorded immediately after the occurrence of incident and in the said dying declaration the deceased has clearly mentioned the history of incident and who has poured the kerosene on her and set ablaze her. Therefore, it cannot be said that the dying declaration is not trustworthy. The dying declaration was recorded in writing by the Executive Magistrate and P.S.I. and, therefore, it cannot be said that it is not admissible in evidence, in eye of law. In the facts and circumstances of the case, there is no doubt at all that the dying declaration made by the deceased was a voluntary and in a conscious condition with a sound state of mind. A person on the verge of death is not likely to tell lie or to concoct false story and falsely involve somebody. It cannot be laid down as a general proposition that a dying declaration is a weaker piece of evidence than other piece of evidence. The deceased has given a statement before the Police Officer and the Executive Magistrate which is proved that the manner in which the deceased was assaulted. Therefore, the authenticity of dying declaration which are fully supported by the Executive Magistrate and also by witness (P.W.3). There cannot be any hard and fast rule regarding the conduct of a human being during the occurrence of incident or subsequent thereto. In a given set of circumstances or a situation, a person may not behave in an ideal way or in any set pattern. It varied from man to man. So the conduct should be examined in light of the facts situation of the case. Interested evidence is not necessarily unreliable and even partisanship by itself is not a valid ground for rejecting the entire sworn testimony. Was his/her presence probable ? If so, whether the substratum of his/her story is consistent with other evidence, natural course of events, CR.A/1/6901 12/15 JUDGMENT surrounding circumstances, and inharant probabilities of the case, and will it carry conviction with a prudent person ? If the answer is yes, and if the evidence appears to be almost flawless and free from suspicion, the Court may accept it, without seeking corroboration from any other source. The court must consider the substratum of the prosecution version and then search for the nugget of truth with due regard to probabilities, if any suggested by defence. The Court must bear in mind that witnesses to a crime may not react in a normal manner, nor do they react uniformly. The efforts should be made to find out the truth by separating the chaff from the grain. Sufficient weight must be given to the evidence of doctor who performed autopsy against the statements in Text Books. The court can also prefer to accept eye witness's testimony in preference to the conflicting, it must be scrutinized carefully and the more reliable version can be accepted. The Court must carefully examine the discrepancies and if it is reasonably possible to arrive at the substantial and true version, the Court should not throw out the prosecution case on the basis of such discrepancies. 19. From the above facts we found that the deceased was in fully conscious state of mind at the time of recording of dying declaration by the Executive Magistrate. There is no doubt about the correctness and authenticity of dying declaration in question and we are of the view that the dying declaration does not require corroboration. The principles of proof beyind reasonable doubt is applicable in the matter of testing the guilt of the accused. It has no operation in the arena of proof of primary facts, particularly in cases where the guilt of the accused is sought to be established by circumstantial CR.A/1/6901 13/15 JUDGMENT evidence. The proof of primary fact is one thing and inference of facts to be drawn from primary facts is another thing. In regard to the proof of basic or primary facts the Court has to judge the evidence in the ordinary way and in the appreciation of evidence in respect of proof of these basic or primary facts. There is no scope for the application of the principle of benefit of doubt. The Court considers the evidence and decides whether that evidence proves the particular fact or not. When it is held that certain facts are proved, the question then arise whether these facts lead to an inference of guilt of the accused or not and in dealing with these aspects, the guilt of accused can be drawn only if the proved fact is incompatible with his innocence and is compatible with the guilt of the accused. 20. We are of the opinion that if the substratum of prosecution case remains unaffected and remaining part of the evidence is trustworthy the prosecution case should be accepted to the extent it is considered safe and trustworthy. 21. 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 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 for the parties with reference to broad and reasonable probabilities of the case. In light of caution sounded by the Supreme Court while dealing with criminal appeals, this Court has examined the entire evidence on record for itself independently of the trial Court and considered the arguments advanced on behalf of CR.A/1/6901 14/15 JUDGMENT 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. 22. As observed and discussed at length, in our opinion, in light of the oral as well as documentary evidence, it is established by the prosecution that accused had poured the kerosene on the deceased victim and setting on fire his own wife. There is no reason for the deceased to falsely involve her own husband i.e. the appellant – accused in the incident. From the oral as well as documentary evidence adduced by the prosecution, in our opinion, the learned trial Judge has rightly convicted and sentenced the appellant – accused. Therefore, the conviction and sentence awarded by the trial Court against the appellant – accused does not call for any interference of this Court in exercise of appellate powers. 23. We find ourselves in complete agreement with the said findings, ultimate conclusion and resultant order of conviction passed by the trial Court and we are of the view that no other conclusion except the one reached by the trial Court is possible in the instant case as the evidence on record stands. Therefore, there is no valid reason or justifiable ground to interfere with the impugned Judgment and order of conviction and sentence. 24. For the forgoing reasons the Appeal fails and is hereby dismissed. The Judgment and Order of conviction and sentence dated 10.5.2000 recorded by the trial Court against the appellant – accused in Sessions Case No.253 of 1999 is hereby confirmed and maintained. Muddamal be disposed of CR.A/1/6901 15/15 JUDGMENT in terms of directions contained in the impugned Judgment and order passed by the trial Court. 25. This Appeal is accordingly dismissed. Sd/- (J. R. VORA, J.) sd/- (Z.K.SAIYED, J.) sas