CR.A/611/1999 1/50 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 611 of 1999 For Approval and Signature: HONOURABLE MR.JUSTICE J.M.PANCHAL HONOURABLE MR.JUSTICE J.R.VORA =============================================================== 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 ? =============================================================== BALUBEN WIFE OF DAHYABHAI RAMSINH SOLANKI & 1-Appellants Versus STATE OF GUJARAT - Respondent =============================================================== Appearance : MR PM VYAS for Appellants MR HM PRACHCHHAK, ADDL.PUBLIC PROSECUTOR for Respondent. =============================================================== CORAM : HONOURABLE MR.JUSTICE J.M.PANCHAL and HONOURABLE MR.JUSTICE J.R.VORA Date : 08-09/03/2006 ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE J.M.PANCHAL) The instant appeal filed under Section 374(2) of the Code CR.A/611/1999 2/50 JUDGMENT of Criminal Procedure, 1973, is directed against judgment dated April 5, 1999, rendered by the learned Additional Sessions Judge, Panchmahals at Godhra, in Sessions Case No.261 of 1998, by which the two appellants, who are mother and daughter respectively, are convicted for commission of offence punishable under Section 302 r.w.Section 114 of the Indian Penal Code and each sentenced to R.I. for life for committing murder of deceased Kailasben, who was daughter-in-law of the appellant No.1 and sister-in-law of the appellant No.2. 2. The facts emerging from the record of the case are as under : Ms.Kailasben was daughter of one Chhatrasinh Raisinh, who was native of village Rakadia. Ms. Kailasben had lost her parents when she was very young. Therefore, she was brought up and reared by Chhatrasinh, a resident of village Sansoli, who was husband of sister of her father. The incident in question, in which Ms. Kailasben lost her life, took place on July 5, 1998. One year prior to the date of incident, Ms. Kailasben was married to Rameshbhai Dahyabhai Solanki of village Reliapura, Taluka : Godhra, District : Panchmahals. It may be stated that Rameshbhai Solanki is son of the appellant No.1 and brother of the appellant No.2. After her marriage, Ms.Kailasben started living with her in-laws. Family of her in-laws consisted of her husband, her mother-in-law i.e. appellant No.1, her father-in- CR.A/611/1999 3/50 JUDGMENT law i.e. Dahyabhai Solanki and herself. The appellant No.2 i.e. Manjulaben was a married woman and had come to her parental house a day prior to the day of incident. The appellants did not like Ms.Kailasben and, therefore, used to pick up quarrels with her on the pretext that she was not performing household work properly. However, her husband i.e.Rameshbhai was a loving husband, and because of his persuasions, Ms.Kailasben had continued to stay at the house of her in-laws and suffer cruelties meted out by the appellants. During subsistence of her marriage with Rameshbhi, Ms.Kailasben could not conceive. On July 5, 1998, Ms.Kailasben got-up and started attending her usual household-work. The appellants also got-up and picked-up quarrel with her stating that she was not knowing as to how the household-work should be performed. The appellants also abused her in filthy language. At that time, her husband i.e. Rameshbhai was present in another hut situated nearby, whereas her father-in-law had gone out. Though the appellants were taunting and abusing her, Ms. Kailasben continued to perform her household-work. At about 7.00 A.M. when she was preparing tea, the appellants poured kerosene over her body and set her ablaze. As Ms.Kailasben received burn injuries, she started shouting for help. Her husband i.e. Rameshbhai summoned a rickshaw to remove her to hospital for treatment. On way to hospital, Rameshbhai came across matador belonging to husband of sister of father of Ms.Kailasben. In the said matador, Ms.Kailasben was removed to S.S.G.Hospital, CR.A/611/1999 4/50 JUDGMENT Vadodara for treatment. After Ms.Kailasben was admitted in S.S.G.Hospital, necessary information was conveyed to police officer of Raopura Police Station, on the basis of which, Entry No.14/98 was posted on July 5, 1998 in police station diary maintained at Raopura Police Station. After the entry was posted in police station diary, Head Constable Ramanbhai Nathabhai, addressed a communication to Medical Officer, S.S.G.Hospital, Vadodara to give opinion as to whether Ms. Kailasben, who was admitted in hospital for treatment of burn injuries, was in a fit state of mind to make statement, as it was necessary to record her dying declaration. The concerned Medical Officer gave opinion on July 5, 1998 at about 12.45 hours that Ms.Kailasben was conscious and able to give statement. In view of opinion given by the Medical Officer, Police Jamadar of Raopura Police Station, Vadodara City addressed a communication dated July 5, 1998 to the Executive Magistrate, Narmada Bhuvan, Vadodara City informing him that as per police station diary Entry No.14/98, dated July 5, 1998, Ms.Kailasben, who had quarrel with her mother-in-law Baluben and sister-in-law Manjulaben, was set ablaze by them after pouring kerosene over her, and requested him to visit Ward No.E/14 of SSG Hospital, Vadodara to record dying declaration of Ms.Kailasben. Along with the intimation, a copy of intimation sent to Medical Officer to give opinion as to whether Ms.Kailasben was in a fit state of mind to make statement with endorsement of the doctor, was also forwarded to CR.A/611/1999 5/50 JUDGMENT the Executive Magistrate. The intimation sent by Police Jamadar, Raopura Police Station, Vadodara City was received by the Executive Magistrate at 13.05 hours. After receipt of abovereferredto intimations, Mr.Champaklal Hargovinddas Panchal, who was then Executive Magistrate, Vadodara went to Room No.12, Ward No.E/4 of SSG Hospital, where injured Kailasben was being treated. He introduced himself to injured Kailasben and after ascertaining that she was in a fit state of mind to make statement, recorded her dying declaration as narrated by her. After recording of dying declaration of Ms.Kailasben was over, police officer of Godhra Taluka Plice Station was informed by Head Constable Ramanbhai Nathabhai, who was on duty at Vadodara Government Hospital that pursuant to Raopura Police Station Diary Entry No.14/98, dying declaration of Ms.Kailasben, wife of Rameshbhai Dahyabhai Solanki, residing at village Reliapura, Taluka : Godhra was recorded and appropriate action be taken to enable investigating officer to collect copy of dying declaration and record complaint of injured Kailasben. On the basis of this information, necessary entry was made in the police station diary maintained at Godhra Taluka Police Station and investigation into the case was handed over to Mr.Gadhvi, who was Senior Police Sub-Inspector of Godhra Taluka Police Station at about 11.05 hours by a written intimation. On receipt of intimation, Senior Police Sub Inspector Mr.Harichand Gulabchand Gadhvi went to SSG Hospital, Vadodara and recorded complaint of injured Kailasben as CR.A/611/1999 6/50 JUDGMENT narrated by her. During the course of treatment, injured Kailasben succumbed to her burn injuries on July 11, 1998. Therefore, the investigating officer held inquest on the dead body of the deceased on July 11, 1998 between 8.15 and 9.00 hours. The investigating officer also made arrangements for sending dead body of deceased Kailasben to Government Hospital for post-mortem examination. The post-mortem examination on the dead body of the deceased was conducted by a panel of Doctors. The investigating officer drew panchnama of place of incident and recorded statements of those persons who were supposed to be conversant with the facts of the case. On completion of investigation, the appellants were chargesheeted in the Court of learned 2nd Judicial Magistrate, First Class, Godhra, for commission of offence punishable under Section 302 r.w.Section 114 IPC . 3. As the offence punishable under Section 302 IPC is exclusively triable by a Court of Sessions, the case was committed to Sessions Court, Panchmahals for trial, where it was numbered as Sessions Case No. 261 of 1998. The learned Additional Sessions Judge, Panchmahals at Godhra, to whom the case was made over for trial, framed necessary charge against the appellants at Exh.2. It was read over and explained to them. They pleaded not guilty to the same and claimed to be tried. The prosecution, therefore, examined (1) Circle Officer Mr.Sabbir Husen Abbasbhai Shaikh as PW.1 at Exh.9, (2) uncle of deceased Kailasben i.e. Salamsinh Raisinh as PW.2 at Exh.12, CR.A/611/1999 7/50 JUDGMENT (3) panch Jashvantsinh Udesinh Solanki, who was present at the time of drawing panchnama of place of incident, as PW.3 at Exh.13, (4) Hasmukhbhai Chhatrasinh Solanki as PW.4 at Exh.15, (5) Vikramsinh Fatesinh as PW.5 at Exh.16, (6) Police Jamadar Balvantsinh Rupsinh as PW.6 at Exh.17, (7) Executive Magistrate Champaklal Hargovinddas Panchal as PW.7 at Exh.19, (8) Dr.Kishor Pramodrai Desai as PW.8 at Exh.23, and (9) Investigating Officer Harichand Gulabchand Gadhvi as PW.9 at Exh.26, to prove its case against the appellants. The prosecution also produced documentary evidence, such as, inquest report of the deceased at Exh.7, intimation sent by Police Jamadar of Raopura Police Station, Vadodara City to the Executive Magistrate, Narmada Bhuvan, Vadodara City to visit Ward No.E/4 of SSG Hospital, Vadodara for recording dying declaration of injured Kailasben at Exhs. 8 and 20, map of place of incident at Exh.10, panchnama of place of incident at Exh.14, entry made in police station diary maintained at Godhra Taluka Police Station pursuant to information given by Head Constable Ramanbhai Nathabhai, who was on duty at SSG Hospital, Vadodara at Exh.18, intimation by police head constable to Medical Officer, SSG Hospital to give opinion as to whether injured Kailasben was in a fit state of mind to make statement at Exh.21, dying declaration of the deceased which was recorded by Executive Magistrate Mr.Panchal at Exh.22, post-mortem notes prepared by Dr.Desai at Exh.24, complaint of injured Kailasben, which was recorded by investigating officer Mr.Gadhvi at Exh.27 CR.A/611/1999 8/50 JUDGMENT etc. in support of its case against the appellants. 4. After recording of evidence of prosecution witnesses was over, the learned Judge of the trial Court explained to the appellants the circumstances appearing against them in the evidence of prosecution witnesses and recorded their further statements as required by Section 313 of the Code of Criminal Procedure, 1973. In her further statement, the appellant No.1 i.e. Baluben claimed that the relations of the appellants with the deceased were very cordial and the deceased was never subjected to cruelty by them. It was stated by the appellant No.1 that the deceased had received burn injuries accidentally and they had not committed any offence. It was further stated that at the time of incident, both the appellants were milking buffalo and cleaning stable. These defences were also advanced by the appellant No.2 in her further statement, which was recorded under Section 313 of the Code. However, it is relevant to notice that no defence evidence was led by any of the appellants to substantiate the claim advanced in their respective further statement. 5. On appreciation of evidence adduced by the prosecution, the learned Judge of the trial Court held that it was proved by the prosecution beyond reasonable doubt that deceased Kailasben died a homicidal death. The learned Judge noticed that, in all, four dying declarations of the deceased i.e. two oral dying CR.A/611/1999 9/50 JUDGMENT declarations proved by witness Salamsinh Raisinh and witness Vikramsinh Fatesinh as well as one proved by Executive Magistrate Mr.Panchal and another dying declaration in the form of complaint of the deceased proved by Investigating Officer Mr.Gadhvi, were produced on record of the case by the prosecution to substantiate charge levelled against the appellants, and that all the four dying declarations were consistent, cogent as well as trustworthy. The learned Judge noticed the contents of panchnama of place of incident and deduced that the claim advanced by the deceased in her dying declarations that the appellants had poured kerosene over her and set her ablaze, was substantiated by the contents of the panchnama of place of incident. As the dying declarations of the deceased were found to be reliable, the learned Judge also held that it was proved by the prosecution that the deceased was subjected to cruelty by the appellants. In view of abovereferredto conclusions, the learned Judge has convicted the appellants under Section 302 r.w.section 114 IPC and imposed sentences referred to earlier by judgment dated April 5, 1999, giving rise to instant appeal. 6. Mr.P.M.Vyas, learned counsel of the appellants, contended that the place where the incident had taken place, is a small room and as it was not possible for two persons to stand therein, the case of the prosecution that the appellants had poured kerosene over the deceased and set her ablaze, should CR.A/611/1999 10/50 JUDGMENT have been disbelieved by the learned Judge of the trial Court. According to the learned counsel of the appellants, if kerosene had been poured over the deceased as claimed by the deceased in her dying declarations, wall consisting of dry stalk of cotton plant would have been burnt, but, the record does not show that said wall was damaged and, therefore, the prosecution case should have been disbelieved by the learned Judge. It was argued that witness Hasmukhbhai Chhatrasinh Solanki, who is brother-in-law of the deceased, has stated in his testimony that he had seen the deceased coming out of the room and shouting for help, and that the deceased had informed him that she had received burn injuries while preparing tea on stove and, therefore, the prosecution case that the appellants had poured kerosene over the deceased and thereafter set her ablaze should have been disbelieved by the Court. The learned counsel of the appellants maintained that the evidence on record indicates that when the deceased was admitted in hospital for her burn injuries, she was surrounded by her relatives, who had tutored her and, therefore, her tutored version as reflected in her dying declarations should not have been accepted by the trial Court. It was contended that several important witnesses, such as, husband of the deceased i.e. Rameshbhai and others are not examined by the prosecution with oblique motive and, therefore, after drawing adverse inference against prosecution, charge levelled against the appellants should have been disbelieved by the learned Judge of the trial CR.A/611/1999 11/50 JUDGMENT Court. It was argued that neither Executive Magistrate had obtained medical opinion that the deceased was in a fit state of mind to make statement, before recording her dying declaration, nor Investigating Officer Mr.Gadhvi had obtained medical opinion to the effect that the deceased was in a fit state of mind to narrate her complaint and, therefore, those documents should not be acted upon while determining guilt or otherwise of the appellants. After referring to the testimony of Investigating Officer Mr.Gadhvi, it was pointed out by the learned counsel of the appellants that as per his testimony, the deceased had also stated before him that her father-in-law had also joined the appellants in pouring kerosene over her, and as an attempt was made by the deceased to implicate the father-in-law of the deceased falsely, complaint lodged by the deceased should not have been acted upon while fastening criminal liability on the appellants. The learned counsel of the appellants contended that the deceased was not sure as to who had lighted the matchstick after pouring kerosene over her and, therefore, the appellants could not have been convicted under Section 302 r.w.Section 114 IPC. It was asserted on behalf of the appellants that the learned Judge of the trial Court has failed to appreciate the evidence on record in its true perspective and, therefore, the appeal should be accepted. 7. Mr.H.M.Prachchhak, learned counsel of the State, contended that all the four dying declarations produced by the CR.A/611/1999 12/50 JUDGMENT prosecution on the record of the case have been satisfactorily proved and as they are consistent with each other, the learned Judge of the trial Court did not commit an error in placing reliance on them for the purpose of convicting the appellants under Section 302 r.w.section 114 IPC. It was argued that the incident took place in the early morning of July 5, 1998, whereas the deceased succumbed to her injuries on July 11, 1998 and dying declaration of the deceased was recorded by the Executive Magistrate on July 5, 1998, whereas complaint of the deceased was also recorded by PSI Mr.Gadhvi on July 5, 1998, which in turn, indicates that the deceased was in a fit state of mind to make statements and, therefore, the dying declarations made by the deceased should be accepted by the Court. It was further pointed out by the learned A.P.P. for the State that the oral dying declarations made by the deceased before witness Salamsinh Raisinh and witness Vikramsinh Fatesinh also stand satisfactorily proved by their trustworthy evidence and, therefore, it is wrong to contend that conviction of the appellants under Section 302 r.w.section 114 IPC is unwarranted. The learned A.P.P. for the State asserted that panchnama of place of incident fully corroborates the claim advanced by the deceased in her four dying declarations and, therefore, conviction of the appellants under Section 302 r.w.Section 114 IPC recorded by the learned Judge of the trial Court, who had advantage of observing demeanour of the witnesses, should be confirmed by this Court. It was emphasised CR.A/611/1999 13/50 JUDGMENT that cogent and convincing reasons have been recorded by the learned Judge of the trial Court for convicting the appellants under Section 302 r.w.section 114 IPC and as the learned counsel of the appellants has failed to dislodge those weighty reasons, the appeal, which lacks merits, should be dismissed. 8. This Court has heard Mr.P.M.Vyas, learned counsel of the appellants and Mr.H.M.Prachchhak, learned counsel of the State, at length and in great detail. The evidence led in the case has been read and re-read by the learned advocates of the parties. This Court has undertaken a complete and comprehensive appreciation of all vital features of the case and the entire evidence on record with reference to broad and reasonable probabilities of the case. 9. It is not the case of the prosecution that murder of the deceased by the appellants was witnessed by any one. No direct evidence is adduced by the prosecution to substantiate the charge of murder of the deceased levelled against the appellants. In order to prove its case against the appellants, the prosecution has heavily relied upon the dying declarations made by the deceased. Before appreciating the evidence of the witnesses and the contents of the dying declarations, it would be advantageous to refer to law relating to dying declaration as settled by the Supreme Court in catena of reported decisions. Section 32(1) of the Indian Evidence Act, 1872 is an CR.A/611/1999 14/50 JUDGMENT exception to the general rule that hearsay evidence is not admissible evidence and unless evidence is tested by cross- examination, it is not creditworthy. Under Section 32 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 by the deceased 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. A dying declaration made by a person on the verge of his death has a special sanctity, as at that solemn moment, a persons 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 of 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 CR.A/611/1999 15/50 JUDGMENT 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 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 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. However, if there are any infirmities of such nature warranting further assurance then the Courts have 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 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. It is also well settled that it is not necessary that recording of dying declaration should be in the form of question and answer. One of the important tests of reliability of CR.A/611/1999 16/50 JUDGMENT 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 pronouncements in order to answer the question whether the dying declaration is true:- (1) Was the victim in a position to identify the assailant/s ? (2) Whether the version narrated by the victim is intrinsically sound and accords with probabilities ? (3) Whether any material part is proved to be false by other reliable evidence ? 10. In the light of above principles, this Court will have to consider the dying declarations produced by the prosecution in instant case and ascertain the truth with reference to those dying declarations made by the deceased. The record shows that first dying declaration was recorded by Executive Magistrate Mr.Champaklal Hargovinddas Panchal, who is examined by the prosecution at Exh.19. The witness has stated that in the month of July 1998 he was discharging duties as Executive Magistrate, Vadodara, and on July 5, 1998, he had received a yadi from the constable of Raopura Police Station, copy of which he had returned after making endorsement on it to the effect that CR.A/611/1999 17/50 JUDGMENT original was received by him. The witness has mentioned that along with yadi, the Head Constable had also handed over another intimation bearing endorsement by the Doctor that patient was conscious and in a fit state of mind to make statement. During the course of his examination-in-chief, the witness produced those two yadies at Exhs.20 & 21. The witness has mentioned that on receipt of yadi, he had immediately gone to Room No.12 of Ward No.E/4 of SSG Hospital, where the deceased was being treated. The witness has stated that he had asked the relatives of injured Kailasben and police constable to go out of room and after they had gone out of room, he had put certain preliminary questions to the injured before recording her dying declaration. The witness has stated that he had asked injured Kailasben as to how the incident had taken place and the particulars as mentioned by her were noted down by him. The witness has further stated that after