CR.A/50/1996 1/28 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 50 of 1996 For Approval and Signature: HONOURABLE MR.JUSTICE C.K.BUCH HONOURABLE MR.JUSTICE D.N.PATEL ====================================== 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 ? ====================================== SHAILESHKUMAR CHANDRAKANT BHATT & 1 - Appellants Versus STATE OF GUJARAT - Opponent ====================================== Appearance : MR JM PANCHAL for the Appellants. MS D.S.PANDIT, APP for the Opponent. ====================================== CORAM : HONOURABLE MR.JUSTICE C.K.BUCH and HONOURABLE MR.JUSTICE DN PATEL CR.A/50/1996 2/28 JUDGMENT Date : 26/11/2008 ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE D.N.PATEL) 1. The present appeal has been preferred by the appellants-accused against the judgement and order of conviction and sentence dated 12th December,1995 passed by learned Additional Sessions Judge, Ahmedabad (Rural), Ahmedabad in Sessions Case No.97 of 1992, whereby the appellants have been convicted and sentenced to undergo life imprisonment for an offence punishable under Section 376 of the Indian Penal Code and ordered to pay fine of Rs.10,000/-, each, in case of default, further simple imprisonment for 2 years. The appellants have also been convicted for an offence punishable under Section 302 of the Indian Penal Code and sentenced to undergo life imprisonment and each accused to pay fine of Rs.10,000/-, in case of default, ordered to undergo further simple imprisonment for 2 years. All sentences have been ordered to run concurrently. Against this order of conviction and sentence, the present appeal has been preferred. CR.A/50/1996 3/28 JUDGMENT 2. Learned counsel for the appellants submitted that appellant No.2 (accused No.2) has expired on 22nd September,2007 and, hence, this appeal is abated against him. 3. Brief facts of the present case are as under: It is a case of the prosecution that on 4th October,1991 at about 8.00 a.m., appellants-accused had committed rape on the deceased and, thereafter, she was ablazed by them. The deceased Madinaben Abdulbhai Pathan was maid-servant. Offence of rape had taken place at the house of the appellants, whereas, she was ablazed at 10 feets away from the house of the appellants. Upon hearing screams, neighbour rushed. Father of the appellants namely Chandrakantbhai put a quilt upon her and, thereafter, she was taken at Mahatma Gandhi Hospital at Viramgam and, thereafter, she was referred to Civil Hospital at Ahmedabad, where, she was examined by P.W.No.8 - Dr.Virambhai Gamarbhai Chaudhari as well as by P.W.No.11 Dr.Manoranjanaben Bharatbhai Shah. The deceased herself has given complaint at Exh-60 on 4th October,1991, and, thereafter, an offence bearing C.R.No.I-137 of 1991 was registered at Viramgam Town Police Station. Thereafter, police yadi was sent to Mamlatdar for recording dying CR.A/50/1996 4/28 JUDGMENT declaration. P.W.No.1 – Rasikbhai Maganbhai Bhabor recorded dying declaration of Madinaben Abdulbhai Pathan (Exh-12) on 4th October,1991 at 8:45 a.m. This is a second dying declaration, after FIR. Thereafter, Doctor of Viramgam Hospital, referred case of the deceased at Civil Hospital, Ahmedabad, where, the Doctor had recorded case history, which is at Exh-36. Necessary panchnama of scene of offence was also reduced in writing during the course of investigation. P.W.No.11 Dr.Manoranjanaben Shah examined the deceased. The deceased expired on 9th October,1991 at 6:55 a.m. at Civil Hospital at Ahmedabad. Thereafter, upon completion of investigation, charge-sheet was filed and Sessions Case No.97 of 1992 was registered against the appellants and upon recording evidence, they have been convicted for life imprisonment and, thereafter, the present appeal has been preferred by the appellants. Out of which, the present appeal has been abated for appellant No.2 because of death of appellant No.2 (accused No.2), who has expired on 4th September,2007 i.e. during the pendency of this Criminal Appeal and, therefore, the present appeal survives only for appellant No.1 (accused No.1). CR.A/50/1996 5/28 JUDGMENT 4. We have heard learned counsel Mr.Panchal for the appellant No.1, who has mainly submitted that there are more than one dying declarations. First dying declaration is FIR at Exh-60. Second is dying declaration recorded by Deputy Mamlatdar- Rasikbhai Maganbhai Bhabor- P.W.No.1 at Exh-12 and third dying declaration is a statement made by the deceased narrating her case history before independent witness P.W.No.8 Dr.Vikrambhai of Civil Hospital, at Ahmedabad. The case papers, in which, the case history is given is at Exh-36. It is also submitted that one more dying declaration has been recorded by the Executive Magistrate namely Pravinbhai Narandas Limbachiya, who has been examined as Defence Witness No.1. He has recorded fourth dying declaration at Exh-69 on 8th October,1991, under the order of Collector. As per submission of learned counsel for the appellants, there are inconsistencies in these four dying declarations, and, therefore, as a rule of prudence, the dying declarations require corroboration. Learned counsel for the appellants submitted that there is no corroboration to zig-zag type dying declarations. It is a case of the deceased that she was ablazed by pouring kerosene on her on the first floor of the house of the appellants, but, looking to the scene of offence panchnama, there was neither kerosene nor smell of CR.A/50/1996 6/28 JUDGMENT kerosene at the first floor of the house of the appellants. As per FIR, she was ablazed at the first floor, whereas, as per dying declaration at Exh-12, she was ablazed nearby the house of the appellants. There is also a difference about timing of the offence, as per dying declarations. Initially names of both the accused were given whereas as per her statement before Doctor P.W.No.8, in case history (at Exh.36) only one accused is involved. Thus, there is discrepancy in number of accused also. 5. Learned counsel for the appellants further submitted that as per the statement of the deceased before independent witness - P.W.No.8- Dr.Virambhai Chaudhari, offence of rape was committed by only one accused (Exh-36), whereas, as per FIR at Exh-60 and as per dying declaration at Exh-12, offence was committed by two accused. Looking to the fourth dying declaration at Exh-69, the accused are not named in the dying declaration nor any role has been assigned to the accused and, therefore, dying declaration is not reliable. Learned counsel for the appellants further submitted that as per medical examination of the deceased carried out by P.W.No.11 Dr.Manoranjaben Shah, at Civil Hospital, Ahmedabad, who is an Associate Professor of CR.A/50/1996 7/28 JUDGMENT Gynecology and Obstratics. She has examined the victim on the very same day i.e. on the 4th October,1991 at about 4:53 p.m. It has been mentioned categorically in her cross- examination, which is at Exh-57, that there were no marks of injuries on the vagina of the deceased nor there was presence of spermatozoa. As per document at Exh-38, examination of urethral swab reveals that gunococci was not detected. Thus, Exh-38 is a medico legal case papers of deceased Madinaben Abdulbhai Pathan, recorded by the Doctor, during her examination at Civil Hospital, Ahmedabad, makes abundantly clear that there was no rape committed by the accused, as alleged by her in her statement before the police and as alleged in her statement made before Deputy Mamlatdar (P.W.No.1). Looking to the dying declaration at Exh-69 recorded by the Executive Magistrate - Mr.Pravinbhai Narandas Limbachiya (Defence Witness No.1), is true and correct dying declaration and, therefore, in absence of any corroboration to the FIR and dying declaration at Exh-12, no offence has been committed by appellant No.1. This aspect of the matter has not been properly appreciated by the Trial Court and, therefore, judgement and order of conviction and sentence deserves to be quashed and set aside. CR.A/50/1996 8/28 JUDGMENT 6. Learned counsel for the appellants submitted that in fact, the Investigating Officer has not brought on record case papers of Viramgam Hospital and, therefore, Court cannot create a new story, which is not on record, during the course of investigation. There must be cogent and convincing evidence with strick standards of proof. The appellants may not be convicted and sentenced by the Court only on the basis of presumption, especially when, there are more than one dying declaration and when there is inconsistency between the dying declarations coupled with the fact that there is no corroboration to the dying declarations. This aspect of the matter has not been appreciated by the Trial Court and, therefore, order of conviction and sentence passed by the Trial Court, deserves to be quashed and set aside. 7. We have heard learned Additional Public Prosecutor for the State, who has submitted that hear-say evidence may not be accepted by the Court, but, dying declaration is exception to the general rule. It is further submitted that there is no inconsistency in the dying declarations. FIR was registered at Exh-60, which involves appellants for the offence of rape and murder. As per dying declaration recorded by P.W.No.1 at Exh-12, also involves two CR.A/50/1996 9/28 JUDGMENT appellants for the offence of rape and murder. Minor omissions and contractions in the narrations of the facts in these two dying declarations, may not be given too much weightage, by the Court. On the contrary, such type of omissions and contradictions reflect truth of these dying declarations. It is submitted by learned Additional Public Prosecutor that while recording dying declaration, Doctor has also given opinion that the deceased was conscious and there was no reason for the deceased to falsely implicate the two appellants. Learned Additional Public Prosecutor further submitted that looking to the case history at Exh-36, recorded by P.W.No.8- Dr.Virambhai Chaudhari- Civil Hospital at Ahmedabad, though it involves only accused No.1, but, there is no inconsistency in narration of the offence. Looking to her injury, she might have forgotten name of accused No.2, but, there is no inconsistency in FIR and dying declaration at Exh- 12. Once dying declaration is found true and reliable, there is no need of any corroboration. 8. Learned Additional Public Prosecutor submitted that fourth dying declaration, which is recorded by Defence Witness No.1 at Exh-67 was recorded at the behest of the CR.A/50/1996 10/28 JUDGMENT Collector, without any endorsement of the Doctor about consciousness of the patient and the same was not recorded upon police yadi. In this set of circumstance, the Trial Court has rightly disbelieved genuineness, correctness and validity of the dying declaration at Exh-67. Learned Additional Public Prosecutor submitted that it was registered at the behest of the father of the accused. In fact, once dying declaration was recorded by Rasikbhai Maganbhai Bhabor - P.W.No.1 at Exh- 12 upon police yadi, there was no need for recording second dying declaration. Learned Additional Public Prosecutor submitted that looking to the medical evidence, the injuries were burn injuries and the death had taken place due to these burn injuries. This is a corroboration to the FIR at Exh-60 and dying declaration at Exh-12. No error has been committed by the Trial Court in appreciating the evidence and convicting the appellants and, therefore, this Court may not interfere with the order of conviction and sentence passed by the Trial Court. 9. Having heard the learned counsel for both the sides and looking to the evidence on record, it appears that the offence had taken place on 4th October,1991. As per charge of CR.A/50/1996 11/28 JUDGMENT prosecution, offence had taken place at 8.00 a.m. at Viramgam. Madinaben Abdulbhai Pathan was maid-servant. Looking to the FIR at Exh-60, Madinaben has stated before the police on 4th October,1991 that she had gone at the house of the accused at early morning hours i.e. at 5.00 a.m.. She was a maid-servant and for cleansing utensils and washing clothes, she had gone at early morning hours. Looking to this FIR at Exh-60, it is stated by her that rape was committed by both the accused on the first floor of the house of the appellants. It is stated by her that she had never shouted. Kerosene was poured upon her and she was ablazed on fire by accused No.1 Shaileshbhai. Thereafter, she came down from the first floor, thereafter, she was not knowing anything. Thereafter, she was brought to the Hospital at Viramgam and she regained her consciousness at 8 a.m.. She was brought to the Hospital by her mother and her brother. Thereafter, an yadi was sent to the Mamlatdar for recording dying declaration. Dying declaration was recorded by P.W.No.1 - Rasikbhai Maganbhai Bhabor, who is examined at Exh-10. Dying declaration was presented at Exh-12. Looking to this dying declaration, it is stated by Madinaben that the offence had taken place on 4th October,1991 at 5 a.m.. Both accused have committed rape upon her. Kerosene was poured upon CR.A/50/1996 12/28 JUDGMENT her and she was ablazed on fire. It is also stated by her in her dying declaration that family members of the accused were on the ground floor of the house. It is stated by her that she shouted, but, nobody came to rescue her. Looking to these two dying declarations, it appears that initially her statement before police was that both the accused have committed rape upon her on the first floor of the appellants she never shouted, and, thereafter, kerosene was poured upon her and Shailesh – accused No.1 ablazed her on fire, as per FIR at Exh-60, whereas, as per dying declaration at Exh-12, both the accused were ablazed her on fire, she shouted, but, nobody came to rescue her, whereas, as per FIR at Exh-60, she stated that she had never shouted, when she was ablazed on fire, and, thereafter, she was not knowing anything and she regained conscious in the Viramgam Hospital at 8.00 a.m.. 10. Looking to the scene of offence panchnama, the offence, as alleged to have been taken place, on the first floor. On the ground floor, family members are residing. Accused No.2 is having wife and two children. Parents of the appellants were also staying on the ground floor. Looking to the police entry, which is recorded in the police station at Exh- 25, which is telephonic vardhi. Father of the appellants had CR.A/50/1996 13/28 JUDGMENT given a telephonic call to the police at about 6:30 a.m. Thus, father was also present in the house. As per FIR at Exh-60, she had never shouted at the time of offence, whereas, as per dying declaration at Exh-12, she stated that though she shouted, nobody came to rescue her. Immediately, she was taken to the Hospital at Viramgam, and, thereafter, she was referred to Civil Hospital at Ahmedabad on the very same day. She was examined by P.W.No.8 Dr.Virambhai Chaudhari and P.W.No.11 Dr.Manoranjanaben Shah. Looking to the deposition of P.W.No.11, who is examined at Exh-57, it has been categorically stated that there were no marks of injuries on the private part of the deceased. Neither there was semen on the private part of the deceased nor there was presence of spermatozoa. Upon examination of urethral swab, gunococci was also absent, as per Exh-38, which are medical case papers of the deceased. Cumulative effect of this, raises doubt about correctness of the dying declaration. Hearsay evidence is not to be given too much weightage, but, dying declaration is an exception to the general rule. But, when there were more than one dying declarations, it must be tested on touchstone of consistency and probabilities. When there is variance in dying declarations, then, rule of prudence requires, if no corroboration, at least supporting evidence or confirmation of CR.A/50/1996 14/28 JUDGMENT allegations levelled in dying declarations. Looking to her examination by P.W.No.11 at Exh-57 and looking to medical evidence at Exh-38, there is no corroboration or the supporting evidence to the dying declarations (Exh-60 and Exh-12). It is also worthwhile to be noted that when the family members are on the ground floor and when offence of rape was committed on the first floor, as per deceased Madinaben, especially when she was not shouting and as per her medical evidence, there is absence of spermatozoa and absence of gunococci, this raises doubt whether the offence of rape has ever been committed or not. 11. So far as second offence of murder is concerned, if a close look to the FIR at Exh-60 and dying declaration at Exh- 12 is given, there is inconsistency about the place of offence. Whether kerosene was poured on her and ablazed on the first floor or she was poured kerosene and ablazed on the chowk, which is 10 foots away from the house of the accused. Looking to the scene of offence panchnama at Exh-40, which is proved by P.W.No.9 Mahendrakumar Shankarlal Thakkar, who is examined at Exh-39, it has been stated by this witness in his cross-examination that there was no kerosene on the first floor. Looking to the scene of offence panchnama at Exh-40 CR.A/50/1996 15/28 JUDGMENT also, there was no presence of kerosene on the first floor nor any smell of kerosene on the first floor, at the place of offence, as alleged to have been taken place, as per FIR at Exh-60. Thus, there is no corroboration to the dying declaration with the panchnama of scene of offence at Exh-40. 12. Still there is one more statement made by the deceased before P.W.No.8 - Dr.Virambhai Chaudhari, who is examined at Exh-35, is a Doctor at Civil Hospital at Ahmedabad. He had examined the deceased on 4th October,1991 at 10:35 a.m. Doctor has recorded case history at Exh-36 in the case papers of the deceased that the accused No.1 had committed rape upon her and only this accused had ablazed her. It is also stated that the whole offence had taken place at 5.00 a.m. in the morning hours, when she had gone for cleansing utensils and washing clothes at the house of the accused. Looking to this dying declaration before independent witness, only one accused is involved in the offence. Secondly the offence had taken place at 5 a.m. and thirdly, the offence had taken place at the first floor of the house of the accused. Thus, this dying declaration is again in deviation of earlier two dying declarations i.e. one is in the form of FIR at Exh-60 and another is in the form of dying declaration at Exh-12. Now, CR.A/50/1996 16/28 JUDGMENT instead of two accused, she has stated before P.W.No.8 – Doctor of the Civil Hospital at Ahmedabad that the only one accused committed rape upon her and, thereafter, she was set on fire by pouring kerosene. Thus, dying declaration made by her before independent witnesses i.e. P.W.No.8 is much inconsistent, with the earlier two dying declarations and as stated hereinabove as a rule of prudence, now, it requires corroboration or supporting evidence or confirmation of allegations levelled by deceased. Looking to the deposition given by P.W. No.11 with medical evidence at Exh-38, she was examined within couple of hours of incident. Upon examination of vaginal swab, spermatozoa was not present and upon examination of urethral swab, gunococci was not detected, which raises serious doubt about correctness and truthfulness of dying declarations. Looking to FIR at Exh-60, dying declaration at Exh-12, statement recorded as a case history by P.W.No.8 Dr.Virambhai Chaudhari in a medical legal case papers at Exh-36, initially, two accused were named, thereafter, only one accused is named. In absence of kerosene or smell of kerosene (as per Exh-40 - Panchnama of scene of offence proved by P.W.No.9- Mahendrakumar Thakkar) and in absence of spermatozoa (as per examination of vaginal swab) and in absence of gunococci (as per CR.A/50/1996 17/28 JUDGMENT examination of urethral swab), as per Exh-38, we are of the opinion that these dying declarations are neither trustworthy nor reliable. There is no supporting evidence to these dying declarations. On the contrary, the evidence is diagonally opposite to the offence of rape and diagonally opposite to the offence of murder by pouring kerosene on the first floor at the house of the accused. Victim was examined by two Doctors i.e. P.W.Nos.8 and 11 on the very same day within couple of hours i.e. on 4th October,1991 at 10-35 a.m.. Time recorded by Doctor is at 10:35 a.m. and, therefore, though she was examined immediately, there is no corroboration of offence of rape proved by the medical evidence. If these dying declaration in the form of FIR (Exh-60), dying declaration (Exh-12) and submissions made by the deceased before the P.W.No.8-Dr.Virambhai, who has recorded a case history at Exh-36, if are not believed by the Court, then, looking to the other evidence, there is no live link proved by the prosecution which connects the appellant-accused with the offence of rape and murder of the deceased. 13. Prosecution has examined P.W.No.5 - Bibiben Shahrukhan at Exh-32, who is mother of the victim and she has not supported the case of the prosecution. Likewise, CR.A/50/1996 18/28 JUDGMENT prosecution has also examined P.W.No.6 - Fakirbhai Mohammad Sahebkhan, who is examined at Exh-33, who is brother of the victim, has also not supported the case of the prosecution. Likewise, P.W.No.7 - Abdulbhai Umarbhai, who is examined at Exh-34, a husband of the victim, has also not supported the case of the prosecution. Thus, no offence is proved by the prosecution against the appellants beyond reasonable doubt. The only left out witnesses are the police witnesses, who are examined as P.W.No.12 at Exh-59 and P.W.No.13 at Exh-63. They have stated about telephonic Vardhi, which was registered initially at Exh-25 and, thereafter, FIR was registered at Exh-60 and offence bearing C.R.No.I-137 of 1991 was registered at Viramgam Police Station. They have also narrated how the scene of offence panchnama was reduced in writing. Defence Witness No.1- Pravinbhai Narandas Limbachiya examined at Exh-67, is Executive Magistrate, who has recorded dying declaration at Exh-69. This witness, prima facie, supports the accused. It appears from the overall evidence that at the behest of the accused, this dying declaration was recorded. Though earlier dying declaration at Exh-12 was already recorded by P.W.No.1- Rasikbhai Maganbhai Bhabor, upon police yadi, Collector, gave a direction to this Defence Witness to record CR.A/50/1996 19/28 JUDGMENT dying declaration and clean chit was given by this witness to the accused. No error has been committed by the Trial Court in giving nil evidenciary value to this document, but, as stated herein above, three dying declarations are having enough inconsistencies. When there is inconsistency in more than one dying declarations and there is no other evidence to prove the prosecution case, it is not safe to act solely on them to convict the accused persons , as per decision rendered by the Hon'ble Supreme Court reported in the case of Lella Srinivasa Rao V/s. State of Andhra Pradesh, reported in AIR 2004 SC 1720, especially in para-14, which reads as under: “14. We have earlier noticed the evidence examined by the prosecution in support of its case that the deceased was treated with cruelty by both the accused. However, the witnesses including the father of the deceased have not supported this case. In fact, the father of the deceased namely, PW-1, in his deposition stated that misunderstandings arose between his daughter and her husband on account of the fact that the three children of the deceased sister of the appellant were being brought up in the house of the appellant which was objected to by the deceased. If in those unfortunate circumstances the three children of the deceased sister of the appellant were being brought up in his family, one cannot blame the appellant or his parents for having shown compassion towards the children of his deceased sister. If that is what caused annoyance to the deceased, one cannot equate such conduct with cruelty or harassment. We also find no reason why on this aspect of the CR.A/50/1996 20/28 JUDGMENT matter the father of the deceased should not speak the truth. In any event, he and his family members were the only persons who