IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No 1198 of 1985 For Approval and Signature: Hon'ble MR.JUSTICE J.M.PANCHAL and Hon'ble MR.JUSTICE SHARAD D.DAVE ============================================================ 1. Whether Reporters of Local Papers may be allowed : YES to see the judgements? YES 2. To be referred to the Reporter or not? YES, but not para 4 of the judgment. : 3. Whether Their Lordships wish to see the fair copy : NO of the judgement? NO. 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? NO. 5. Whether it is to be circulated to the Civil Judge? NO -------------------------------------------------------------- STATE OF GUJARAT Versus MANIBEN W/O.GANDU JADAV -------------------------------------------------------------- Appearance: MR.K.C. SHAH, learned A.P.P. for Petitioner MR KR RAVAL for Respondent No. 1 -------------------------------------------------------------- CORAM : MR.JUSTICE J.M.PANCHAL and MR.JUSTICE SHARAD D.DAVE Date of decision: 03/04/2001 ORAL JUDGEMENT (Per : MR.JUSTICE J.M.PANCHAL) 1. In this appeal which is filed under Section 378 of the Code of Criminal Procedure, 1973. The State of Gujarat, claims that respondent should not have been convicted of lesser offence punishable under Part-II of Section 304 of the Indian Penal Code, but should have been convicted under Section 302 of the Indian Penal Code for committing murder of her daughter-in-law. 2. Deceased Santokben was married to Parshottambhai Patel of village Jamvadi, Taluka Gondal, District Rajkot. During the subsistence of the marriage she had given birth to three children who were all girls. The respondent who is the mother-in-law of Santokben was dissatisfied with Santokben because she was not able to bear a boy. According to the prosecution the incident took place in the morning of November 29, 1984. On that day at about 7.00 a.m. in the morning the deceased with her youngest daughter Minaxi had gone to fetch water. After fetching water she was coming back with water pot on her head and was also carrying Minaxi. According to the prosecution, at that time the respondent came with a burning wick made of rags and set on fire the terylene clothes put on by the deceased from all sides. The deceased brought down her minor daughter whom she was carrying and managed to reach her house trailing though she had received extensive burn injuries. After reaching her house the deceased summoned her daughter Nita who had gone to attend her school. Nita in turn informed witness Babulal Liladhar and the deceased was removed to Gondal Government dispensary at about 9.35 a.m. At Gondal Government hospital the deceased was examined by Dr.Hareshkumar N. Savaliya, who was Medical Officer at the said dispensary and on finding that the deceased had sustained more than 50% burns, he advised the persons accompanying her to remove her to Rajkot Hospital. Meanwhile at about 11.20 a.m. witness D.P. Trivedi, who was then on duty as the Deputy Mamlatdar and Executive Magistrate was sent a report by Gondal Taluka Police Station informing him that the deceased was admitted to hospital with burn injuries and he should record her dying declaration. Accordingly, Mr.Trivedi, Executive Magistrate had gone to Gondal hospital and after verifying from Dr.Savaliya that deceased was conscious and in a fit state of mind to make statement, had recorded her dying declaration, which is produced on record of the case at Exh.15. At about 11.00 a.m. on that day an information was conveyed by Mr.Ghanshyambhai who was police constable on duty at Gondal hospital, to Umiyashanker Jivram who was P.S.O. at Gondal Taluka Police Station about the deceased having been admitted in the hospital for treatment of her burn injuries. Mr.Umiyashanker who was P.S.O. of Gondal Taluka Police Station had in turn asked Jamadar Sultan Siddi at about 11.00 a.m. to go to the dispensary and record the complaint. Accordingly, Jamadar Sultan Siddi had gone to the Gondal hospital and recorded the complaint of the deceased at about 12.45 noon which is produced on the record of the case at Exh.46. Thereafter, the deceased was removed to Rajkot Government Hospital. During the course of treatment the deceased died on December 7, 1984. At the instance of Head Constable C.D. Vyas, autopsy on the dead body of the deceased was performed by Dr.Tarlikaben H. Shah. Necessary investigation into the case was made by P.S.I. Mr.L.S. Chavda of Gondal Taluka Police Station. Mr.Chavda was assisted by Mr.Vijay J. Menad, who was then appointed as probationer P.S.I. At the conclusion of the investigation, the respondent was chargesheeted for the offence punishable under Section 302 of the Indian Penal Code. As the offence punishable under Section 302 of the Indian Penal Code is exclusively triable by Court of Sessions, the case was committed to the Court of learned Additional Sessions Judge, Gondal, District Rajkot, for trial where it was numbered as Sessions case No.15/85. Charge against the respondent for the offence punishable under Section 302 of the Indian Penal Code was framed which was read over and explained to the respondent who pleaded not guilty to the same and claimed to be tried. The prosecution therefore, examined; (1) Bavanji Kurji as P.W.2 Exh.7, (2) Hemkunver Jeraj as P.W.3 at Exh.8, (3) Ila Parshottam as P.W.4 at Exh.9, (4) Babulal Liladhar as P.W.5 at Exh.10, (5) Chandrika Nagji as P.W.6 at Exh.11, (6) Dr.Tarlikaben H. Shah as P.W.7 at Exh.12, (7) Dinesh P. Trivedi as P.W.8 at Exh.14, (8) Keshavlal Bhavanbhai as P.W.9 at Exh.16, (9) Bavabhai Polabhai as P.w.10 at Exh.17, (10) Parshottam Gandubhai as P.W.11 at Exh.18, (11) Nita Parshottam as P.w.12 at Exh.19, (12) Mina Parshottambhai as P.W.13 at Exh.20, (13) Sultan Siddibhai as P.W. 14 at Exh.21, (14) Umiyashanker Jivraj as P.W.15 at Exh.28, (15) Kaviben Ghusha as P.W.16 at Exh.32, (16) Punaben Savabhai as P.W.17 at Exh.33, (17) Chhaganbhai Meerambhai as P.W.18 at Exh.34, (18) Dinesh Jayantilal as P.W.19 at Exh.36, (19) Dr.Haresh N. Savaliya as P.W.20 at Exh.39 and (20) Vijay Jivaji Menad as P.W.21 at Exh.40, and also produced documentary evidence such as postmortem notes of the deceased, dying declaration of the deceased recorded by Mr.Trivedi, complaint lodged by the deceased, different panchnamas etc., to prove its case against the respondent. After recording of evidence of prosecution witnesses was over, the learned Judge recorded the statement of the respondent under Section 313 of the Code. In her further statement, the respondent denied the case of the prosecution, but did not examine any witness in support of her case. 3. On appreciation of evidence adduced by the prosecution, the learned Judge held that it was proved by the prosecution that the deceased died a homicidal death. The learned Judge referred to the complaint lodged by the deceased as well as her dying declaration recorded by Executive Magistrate Mr.Trivedi and concluded that the contents of the First Information Report as well as dying declaration were reliable and trustworthy. The learned Judge further referred to the evidence of Dr.Tarlikaben and held that the deceased had died on December 7, 1984, because of decay which had set in the body. The learned Judge made a reference to decision of Supreme Court in Jairaj v. State of Tamil Nadu A.I.R., 1976 S.C.1519 and held that though it was proved that the respondent had set the deceased on fire, the medical evidence established that the injuries sustained by the deceased were not sufficient in the ordinary course of nature to cause her death and therefore the respondent had committed offence punishable under Section 304 Part-II of the Indian Penal Code. The learned Judge thereafter heard the respondent regarding sentence to be imposed and after hearing the respondent, the learned Judge has convicted the respondent under Section 304 Part-II of the Indian Penal Code and sentenced her to R.I. for five years and fine of Rs.3,000 in default. R.I. for one year, vide judgment dated June 15, 1985, giving rise to the present appeal. 4. We may state that after admission of the appeal and service of notice on the respondent, the respondent had not engaged any lawyer to plead her case and therefore, Mr.B.N. Raval, learned advocate was appointed as amicus curiae to plead the case on behalf of the respondent. Mr.Raval had also taken a copy of the paper book of November 20, 1992, but though the appeal was notified on the final hearing board on 16 occasions, Mr.Raval did not appear before the Court on behalf of the respondent. Again the appeal was notified on final hearing board prepared on March 12, 2000 at Sr. No.16 and when it was called out Mr.Raval who was appointed as amicus curiae could not remain present. Therefore the Court Sheristedar was directed to give intimation to Shri Raval through his clerk. On receipt of information that the matter was likely to be called out for final hearing, the clerk had personally come to the Court room and noted down the particulars of the appeal such as number of appeal, name of the parties, etc., but Mr.Raval did not remain present before the Court on March 22, 2000. Under the circumstances, the Court concluded that Mr.Raval was not interested in conducting the matter on behalf of the respondent and vide order dated March 22, 2000, Mr.K.R. Raval, learned advocate practising mainly on criminal side in this Court, was appointed amicus curiae in the matter and requested to appear on behalf of the respondent. Mr.K.R. Raval, learned counsel had obtained copy of the paper book and has made vehement submissions before the Court on behalf of the respondent, after going through the whole record of the case. 5. Mr.K.C. Shah, learned A.P.P., submitted that deceased who had water pot over her head and who was carrying a little girl in her waist was set on fire by the respondent by means of a burning wick made of rags and as her intention was to cause the death of the deceased she should be convicted under Section 302 of Indian Penal Code. After referring to clause four of Section 300 of Indian Penal Code, the learned counsel also pleaded that the respondent very well knew that her act of setting fire to the terylene clothes put on by the deceased was so imminently dangerous that it would in probability, cause death of the deceased or such bodily injury as was likely to cause death of the deceased and as this act was done without any excuse for incurring the risk of causing death or injury, the respondent could not have been convicted of lesser offence punishable under Section 304 Part-II of Indian Penal Code but should have been convicted under Section 302 of Indian Penal Code. Stress was laid on the circumstance that the respondent after preparation had set on fire terylene clothes of the deceased, who was not able to offer any resistance and as the respondent had taken risk of causing death or such bodily injury as was likely to cause death, the acquittal of the respondent of the offence punishable under Section 302 of the Indian Penal Code should be reversed. In support of his submissions the learned counsel placed reliance on the decision of the Supreme Court in State of Madhya Pradesh v. Ram Prasad A.I.R.. 1968, S.C. 881. 6. Mr.K.R. Raval, learned advocate for the respondent urged that on arrival of the Executive Magistrate Shri Trivedi, Dr.Savaliya had certified that the patient was conscious but had not certified that the patient was in a fit state of mind and as the Executive Magistrate had himself satisfied the fit state of mind of the deceased without medical certificate, the dying declaration recorded by the Executive Magistrate should not be relied upon. Further it was stressed that police constable Mr.Sultan Siddibhai had recorded the First Information Report as stated by the deceased without obtaining certificate of any kind from Dr.Savaliya and therefore First information Report recorded by the said witness after satisfying himself that the deceased was in a fit state of mind should be treated as unreliable piece of evidence. What was maintained was that there was no mention of dying declaration recorded by Mr.Trivedi in the F.I.R. which was reduced into writing by witness Siddibhai and therefore the conviction based on dying declaration should be set-aside. In the alternative, it was claimed that the prosecution has failed to prove that the respondent had set the deceased on fire with the intention of causing her death and therefore the appeal being substanceless should be dismissed. The learned counsel for the respondent extensively referred to the medical evidence on record and pleaded that as the injuries sustained by the deceased were not sufficient in the ordinary course of nature to cause her death but were likely to cause her death, no case under Section 300 of Indian Penal code was made out against the respondent at all. Further it was argued that death of the deceased was consequent to septicaemia, and as the death had taken place after several days of the incident, the respondent was rightly convicted under Section 304 Part-II of Indian Penal Code and should not be convicted under Section 300 of Indian Penal Code. The learned counsel emphasized that the view taken by the learned Judge of Trial Court is in accordance with law and the same should not be interfered with by this Court in the present acquittal appeal. In support of his submissions the learned counsel placed reliance on the decisions in cases ; (1) B.N.Kavatakar and another v. State of Karnataka, 1994 S.C.C (Criminal) 579, (2) Kaluram v. State of Rajasthan, 2000, S.C.C. (Criminal), 86 and (3) Manik Malakar v. State of Assam, 1976 Cri.L.J. 1921. 7. We have heard the learned counsel for the parties and taken into consideration the evidence on record. We may state that the respondent has not challenged her conviction under Section 304 Part-II of the Indian Evidence Act, by way of filing an appeal. However, in an acquittal appeal, the respondent is entitled to plead that she is innocent and should not have been convicted at all. Therefore, in order to assure ourselves that the conviction based on dying declaration is proper, we have considered minutely and in detail, the evidence relating to dying declaration. 8. Before appreciating the evidence of the witnesses and the contents of dying declarations, it would be relevant to notice the law relating to dying declaration. Section 32 (1) of the Indian 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 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 witnesses 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 ; (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 ? 9. In the light of the above referred to principles we will now proceed to consider the evidence on record relating to dying declarations. The prosecution examined; (1) Hemkunverben Jerajbapa as P.W.3 at Exh.8, (2) Ilaben Parshottambhai as P.W.4 at Exh.9, (3) Babulal Liladhar as P.W.5 at Exh.10, (4) Chandrika Nagjibhai as P.W.6 at Exh.11, (5) Keshavlal Bhavanbhai as P.W.9 at Exh.16, (6) Bavabhai Polabhai as P.W.10 at Exh.17, (7) Parshottambhai Gandabhai as P.W.11 at Exh.18, (8) Nita Parshottambhai as P.W.12 at Exh.19, (9) Mina Parshottambhai as P.W.13 at Exh.20, (10) Kaviben Ghusabhai as P.W.16 at Exh.32 and (11) Punaben Savabhai as P.W.17 at Exh.33 to prove its case that the deceased had made oral dying declaration before the witnesses, that she was set on fire by the respondent. However, a bear reading of their evidence shows that they have not supported the prosecution and were treated hostile to the prosecution. All the abovenamed witnesses were contradicted with their previous statements recorded during the course of investigation and therefore the claim made by these witnesses in their examination-in-chief to the effect that the deceased had not informed them that the respondent had set terylene clothes put on by her on fire is unreliable and cannot be accepted. The best that can be said is that the evidence of these witnesses does not prove the case of the prosecution against the respondent but the evidence of these witnesses would not, in any manner detract from the evidentiary value of the dying declarations, if they are otherwise found to be true and reliable. 10. The evidence of witness Bavanji Kurji P.W.2 recorded at Exh.7 indicates that he is the brother of the deceased and on learning that the deceased was admitted at Rajkot Hospital with burn injuries, he had gone to the hospital and had met her. According to this witness his sister had told him that the respondent had set her on fire because she was not able to bear a son. This witness was cross-examined, on behalf of the defence and it was sought to be proved that he had stated in his police statement that deceased had told him that she was set on fire by the respondent by throwing a burning wick of rags. However, after going through the evidence of the Investigating Officer, we find that the contradiction is not proved as required by law. Therefore, the claim made by this witness in his examination-in-chief to the effect that the deceased had made an oral dying declaration before him and had implicated the present respondent deserves acceptance more particularly in absence of material improvements or contradictions appearing in his evidence. The evidence of Dr.H.N. Savaliya, medical officer who was on duty at Gondal Government Hospital shows that the deceased was admitted to the hospital at 9.35 a.m. on November 29, 1984, and on examination he had found that the deceased had sustained more than 50% burns. According to Dr.Savaliya, the Executive Magistrate had come to the hospital for recording dying declaration of the deceased and after examining the deceased he had informed the Executive Magistrate that deceased was conscious and was fit to make a statement. The witness has asserted before the Court that the Executive Magistrate had recorded the dying declaration of the deceased and below dying declaration he had signed an endorsement made by the Executive Magistrate to the effect that the deceased was conscious all throughout. The witness maintained before the Court that all throughout, the deceased was conscious and in a fit state of mind till she was removed to Rajkot hospital. This witness was also cross-examined at length by the learned counsel for the defence, but nothing could be elicited so as to doubt his version that deceased was conscious as well as in fit state of mind to make statement and that her statement was recorded by the Executive Magistrate. Evidence of Executive Magistrate Mr.Trivedi P.W.4 recorded at Exh.14 establishes that he had recorded dying declaration of the deceased after being satisfied through Dr.Savaliya that the deceased was in a fit state of mind to make a statement. This witness was also cross-examined, on behalf of the respondent, but nothing could be brought on record to doubt his claim that he had recorded the statement of the deceased as narrated by her. The dying declaration of the deceased which is produced by Mr.Trivedi at Exh.15 indicates that while deceased was returning home after fetching water, the respondent had set her terylene clothes on fire by means of a burning wick of rags. The evidence of witness Sultan Siddibhai P.W.4 recorded at Exh.21 indicates that this witness at the relevant time was on duty as Jamadar at Gondal Taluka Police Station and had received an information at about 11.00 a.m. from Umiyashanker Jivram P.W.15 Exh.28, then P.S.O. of Gondal Taluka Police Station that the deceased was admitted at Gondal Government Hospital with burn injuries and that he should record her complaint. The witness has maintained before the Court that he had gone to Gondal Government Hospital and after making enquiries with the deceased, had recorded the First Information Report as stated by the deceased. The witness has also stated before the Court that after reducing the complaint of the deceased into writing he had obtained thumb impression of the deceased thereon. This witness was cross-examined on behalf of the respondent. Except suggesting to the witness that deceased had not lodged complaint or that the witness had not obtained thumb impression of the deceased on the complaint, nothing was suggested to this witness that deceased was unconscious or that she was not in a fit state of mind to narrate the incident to