CR.A/1331/2007 1/22 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 1331 of 2007 With CRIMINAL MISC.APPLICATION No. 13227 of 2007 In CRIMINAL APPEAL No. 1331 of 2007 For Approval and Signature: HONOURABLE MR.JUSTICE R.P.DHOLAKIA HONOURABLE MR.JUSTICE KS JHAVERI ========================================================= 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 ? ========================================================= HANSABEN W/O SURESHBHAI PUNJABHAI SAGATHIYA & 1 - Appellant(s) Versus STATE OF GUJARAT - Opponent(s) ========================================================= Appearance : MR SHIRISH TOLIA for Appellant(s) : 1 - 2. MR HL JANI, ADDL PUBLIC PROSECUTOR for Opponent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE R.P.DHOLAKIA and HONOURABLE MR.JUSTICE KS JHAVERI CR.A/1331/2007 2/22 JUDGMENT Date : 26/02/2008 ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE KS JHAVERI) 1. By way of the present appeal, the original accused- present appellants have challenged the judgement and order of conviction and sentence dated 14.09.2007 passed by the Additional Sessions Judge & Presiding Officer, F.T.C. No. 2, Gondal, Rajkot in Sessions Case No. 9/2007 whereby the original accused-present appellants are found guilty for the offence punishable under section 302 read with section 114 of Indian Penal Code as well as section 323 read with section 114 of the Indian Penal Code and thereby sentenced to imprisonment for life and to pay a fine of Rs. 5000/- each, in default to undergo Simple Imprisonment for a period of six months and further sentenced to Rigorous Imprisonment for three months and fine of Rs. 250/- each, in default to undergo Simple Imprisonment for a period of one month. Both the substantive sentences are directed to run concurrently. 2. The case of the prosecution in short is that on 29- 9-2006 at about 10.30 a.m., when the victim was working in the Sim of Village, Ardoi, Taluka Kotadasangani, Rajkot, her husband Kishorebhai (appellant No.2) and her younger sister-in-law Hansaben (Derani) forcefully CR.A/1331/2007 3/22 JUDGMENT administered her poisonous medicine which is used for sprinkling on cattle crops. The reason for the same was that she saw the appellant in a compromising position with the accused No.2 and which was objected by her. 2.1 She was thereafter taken to Government Civil Hospital, Rajkot, by one Hareshbhai Alabhai, a resident of Ardoi where she was treated in emergency ward. As it was a medico-legal case and as the span of marriage life was only of six months and also as she was staying with her husband and other family members, Police Constable, Mr.Zala of Pradhyuman Nagar Police Station, telephonically informed PSO, Mr.Umarbhai Sumra of Pradhyuman Nagar Police Station, Rajkot, who made an entry in the register being Entry No.1682/06 and handed over investigation with yadi to Investigating Officer, Mr.R.C.Chavda of Pradhyuman Nagar Police Station. 2.2 Shri Chavda went to Civil Hospital, Rajkot and inquired qua Entry No.1682/06. As the physical condition of the victim was serious, he wrote yadi to Executive Magistrate for recording her dying declaration. He also telephonically informed PSO, Kotadasangani Police Station for doing needful in the matter by noting down in the telephone register. PSI, Kotadasangani Police Station, on receipt of said information went to Civil Hospital, Rajkot, and inquired about the victim- CR.A/1331/2007 4/22 JUDGMENT Shardaben. He then noted down the complaint given by Shardaben in writing and obtained her thumb mark on it. 2.3 Thereafter, he came back to Kotadasangani Police Station and registered it as Kotadasangani Police Station I.C.R.No.123 of 2006 for the offence punishable under Secs.307, 323 and 114 of IPC and handed over investigation to Investigating Officer, PSI, Shri Atulbhai Vani. He took over investigation by first informing about this to his Superior Officer and went to Rajkot Government Hospital for further investigation where he saw that the injured was under treatment. 2.4 Thereafter, he drew panchnama to that effect in presence of panchas and recorded statements of various witnesses and made a search of the accused. Thereafter, both the accused were arrested under a panchnama. The clothes worn by them were also seized under a panchnama and on the next day, he went to the place of scene of offence and drew panchnama of scene of offence, seized muddamal including empty tin of poisonous medicines from the place of incident. 2.5 On 1-10-2006 at night, he received information that injured succumbed to the injuries. Similarly, Police Constable on duty at General Hospital, Rajkot, also telephonically informed about this to Pradhyumannagar CR.A/1331/2007 5/22 JUDGMENT Police Station. Shri Maheshwari, Investigating Officer, therefore proceeded to Civil Hospital in pursuance of Entry No.18/06 of Pradhyumannagar Police Station. He first sent yadi to Executive Magistrate and inquest panchnama was prepared in presence of panchas and Executive Magistrate. He also filled up marnotar form and made arrangements to send dead body of victim for performing post mortem along with inquest panchnama and marnotar form. Thereafter, he came back to Pradhyumannagar Police Station and handed over all papers to PSO, who, in turn handed over to I.O. Thereafter, investigating Officer Shri Valand prepared yadi for addition of Sec.302 of IPC in the offence and sent the same to concerned Magistrate also. 2.6 Thereafter, he also seized the clothes worn by the deceased which has been produced by Police Constable who received them from the doctor who performed post mortem on the dead body of the deceased by way of separate panchnama. Thereafter, he prepared the forwarding letter and yadi of the muddamal for sending them to FSL and on receipt of FSL report, injury certificate, post mortem note and other papers, same were kept with the investigating papers. Upon completion of investigation, charge sheet was submitted against the accused in the Court of learned Judicial Magistrate (First Class), Gondal. CR.A/1331/2007 6/22 JUDGMENT 2.7 As the offences alleged against the accused were exclusively triable by the Court of Sessions, learned J.M.F.C, Gondal, committed the case to the Court of Sessions at Rajkot where it was numbered as Sessions Case No.9 of 2007 and same was transferred to the Court of learned Addl. Sessions Judge and Fast Track Court No.2, Gondal, District Rajkot, for disposing of the same on merits. 3. Upon presentation of the accused, charge was framed against the accused at Ex.5. The accused pleaded not guilty to the charge and prayed of trial and, therefore, to prove the case against the accused, the prosecution examined 17 witnesses in all namely Nitaben Mukeshbhai(PW1) Ex. 9, Punjabhai Pithabhai (PW2) Ex. 10, Complainant Lakshmiben Hareshbhai(PW3) Ex. 12, Hareshbhai Aalabhai(PW4) Ex. 13, Executive Magistrate Shri Premjibhai Danabhai(PW5) Ex. 14, Medical Officer who gave treatment to the victim-Dr. Pravinchandra Vala(PW6) Ex. 19, Medical Officer who was present at the time of recording dying declaration-Dr. Khushaliben Yogeshbhai(PW7) Ex.21, Medical Officer who performed the post mortem-Dr. Pareshbhai Gamara(PW8) Ex. 23, Allarakha Chaniya(PW9) Ex. 34, Panch Witness Bhikhuba Jadeja (PW10) Ex. 36, Panch Witness Jagdishbhai Harsoda (PW11) Ex. 38, CR.A/1331/2007 7/22 JUDGMENT Panch Witness Pratapsinh Dabhi(PW12) Ex. 40, ASI Nanjibhai Maheshwari Investigation Officer, Pradyumannagar Police Station (PW13) Ex. 42, Head Constable Umarbhai Sumra (PW14) Ex. 45, PSI Ratansinh Chavda (PW15) Ex.48, Circle Inspector Nanjibhai Kotwal (PW16)Ex. 50, P.I Atulbhai Bhikhabhai Valand, Investigating Officer who prepared the map (PW17) Ex. 53. 3.1 The prosecution also produced and relied on various documentary evidence namely complaint Ex. 35, Yadi for Executive Magistrate to take dying declaration Ex. 15, Inquest Panchnama Ex. 29, Heavy Crime Report Ex. 54, Panchnama of Condition of victim in hospital Ex. 30, Arrest Panchnama Ex. 31, Panchnama of the scene of offence Ex. 37, Panchnama of clothes of victim at time of incident Ex. 41, Dying Declaration Ex. 16, Order of inquiry Ex. 48, Marnottar Form Ex. 25, Post Mortem Report Ex. 27, Cause of Death Certificate Ex. 28, receipt of inquest panchnama Ex. 32. 3.2 On submission of closing purshis by the learned APP, learned Addl. Sessions Judge, recorded further statement of the accused under Sec.313 of the Code of Criminal Procedure. Thereafter, on hearing the learned advocates appearing for the respective parties, learned Addl. Sessions Judge and Fast Track Court No.2, Gondal, CR.A/1331/2007 8/22 JUDGMENT District Rajkot, delivered the impugned judgment, whereby the appellant was convicted and sentenced to suffer for life which is giving rise to the present appeal. 4.0 Mr. Tolia, learned advocate appearing for the original accused-present appellants has submitted that the judgement and order of conviction and sentence as recorded by the trial court is contrary to the provisions of law, facts, evidence and circumstances of the case as well as established principles of law and passed devoid of any credible, trustworthy or reliable evidence on record. 4.1 He has further submitted that the present case is a case of suicide and not homicidal death. He has submitted that there is no evidence on record adduced by the prosecution that the death of the victim was homicidal death. The medical officer Dr. Pareshbhai Gamara Ex. 23 has performed the post mortem examination on the dead body of the deceased and that he has nowhere deposed that this is a case of homicidal death. He has also submitted that Dr. Gamara has deposed that the report of chemical analysis of viscera has not been sent to him nor his opinion is sought for by police regarding the cause of death. CR.A/1331/2007 9/22 JUDGMENT 4.2 Mr. Tolia has submitted that the dying declaration suffers from inherent infirmities and it creates a doubt regarding its credibility. He has also submitted that the trial court has erred in relying upon the complaint- second dying declaration produced at Ex. 35 alleged to have been recorded by ASI Shri Chaniya of Sapar-Veraval Police Station. It is submitted that Shri Chaniya has not obtained the endorsement of medical officer on duty regarding the consciousness and fit state of mind of the deceased as also the time when he started and completed the recording of the complaint of the deceased. It is also submitted that the ASI has not taken any endorsement or opinion of the Medical Officer on duty nor is it recorded anywhere that he has also personally verified the state of mind of the deceased. 4.3 He has further submitted that as per the established principles, dying declaration recorded by the Police Officer can be relied upon by the Court provided it is found that the same is trustworthy, credible and reliable and corroborated by surrounding circumstances. 4.4 Mr. Tolia has further submitted that the trial court has erred in relying upon the so-called dying declarations alleged to have been made by the victim CR.A/1331/2007 10/22 JUDGMENT before her parents. He has submitted that medical officer Dr. Khushali-Ex. 21 has deposed in para 3 that the victim Shardaben had stated that she had taken medicine which was to be sprinkled in the crops of cotton and that therefore it is crystal clear that the story that the poisonous medicine was administered by the appellants- accused forcibly in the mouth of the victim is a false and fabricated story advanced by the prosecution. 4.5 Mr. Tolia has further submitted that it is also to be noted that immediately after the so-called incident, in the Wadi, the parents of the victim have reached and the victim was taken for treatment in the rickshaw and was admitted to Civil Hospital, Rajkot. He has also submitted that considering all these circumstances, possibility of concoction, deliberations and tutoring the victim by her parents cannot be ruled out because the presence of the parents of the victim at that particular point of time in the Wadi itself speaks volumes and that this material aspect has not been taken into consideration by the trial court. 5.0 Mr. H.L. Jani, learned Additional Public Prosecutor appearing for the respondent State has supported the judgement and order of the trial court and submitted that CR.A/1331/2007 11/22 JUDGMENT the trial court has taken into consideration the evidence in detail and has passed the impugned judgement and order which is in accordance with law. 5.1 He has placed emphasis on the first and second dying declaration of the deceased and submitted that the dying declaration of the deceased itself is sufficient to come to a conclusion that the original accused-present appellants are guilty of the offence and therefore the appeal should be dismissed. 5.2 Mr. Jani has placed reliance on a decision of the Apex Court in the case of Vikas & Ors. vs. State of Maharashtra reported in 2008(1) Supreme 433 in support of his submissions. He has submitted that in the present case where the victim herself has given her first dying declaration to the Executive Magistrate and thereafter the second dying declaration in the form of complaint to the concerned ASI without any differences in them, the said dying declarations cannot be brushed aside. 5.3 Mr Jani has submitted that the oral evidence of the victim narrated before her parents and the version of the parents before the authorities coupled with the other evidences of the panchnama witnesses indicate that there CR.A/1331/2007 12/22 JUDGMENT is no iota of evidence of the story being concocted as submitted by learned advocate for the appellants. He has submitted that the appeal is devoid of any merits and therefore deserves to be dismissed. 5.4 Mr. Jani has further submitted that the marriage span between the appellant no.2 and the victim was only about four months. He has submitted that looking to such a short span of marriage, the action on the part of the appellants does not deserve any positive consideration from the Court. 6.0 This matter was initially listed before this Court for regular admission on 08.01.08 but was adjourned to 16.01.08 at the request of learned APP. On 16.01.08, this Court passed an order calling for Record and Proceedings of the case and thereby adjourned the matter. The matter finally came up for admission today. The Record & Proceedings is received and the matter is being heard today alongwith Criminal Misc. Application No. 13227 of 2007. Moreover, learned advocate appearing for the appellants has stated that he has gone through the Record & Proceedings and is prepared with the matter. 6.1 Heard learned counsel for the respective parties and CR.A/1331/2007 13/22 JUDGMENT perused the record & proceeding. The present case is mainly based on the dying declarations- the first one being recorded before the Executive Magistrate, Rajkot City on 29.09.06 starting at about 1455 hrs and ending at about 1510 hours with a clear endorsement of the doctor stating that the patient(victim) is fully conscious and in a fit state of mind to give the said dying declaration. In the first dying declaration, the deceased has clearly stated that on 29.09.06 at about 10.00 am she was forcefully administered the poisonous medicine used to sprinkle on the cotton crops. She has stated that the marriage span of the victim and the appellant no.2 is only of four months and that she faced harassment from her husband and sister in law-appellant no.1. She has denied facing any harassment from her father-in-law or mother-in-law or even any other family member from the family of the victim's husband other than the appellants. 6.2 The second dying declaration in the form of the complaint registered before the ASI Shri Chaniya, Sapar- Veraval Police Station is also on the same lines as the first one. From the record, it is also clear that though the other family members of the deceased were present at the scene of offence and stated to have gathered after CR.A/1331/2007 14/22 JUDGMENT hearing the victim's shouts, none of them is roped in the complaint/dying declaration given by the deceased. In that view of the matter, we are of the opinion that both the dying declarations given by the deceased are trustworthy and reliable. 7. The Court below has also considered oral evidence of P.W.1, Nitaben, another sister-in-law of the deceased and P.W.2, Punjabhai Pithabhai Sagathia, father-in-law of the deceased. Both these witnesses, who are nearest relatives of the deceased, have not supported the say of the prosecution and have been declared as hostile. Permission was granted by the court below to cross-examine them. During cross-examination of P.W.No.1-Nitaben, it has been ultimately proved by the prosecution that she heard the victim shouting and asking to save her. P.W.2, father-in-law however denied the incident during cross- examination. Not only that, he even denied the incident that took place in the field. Hence, their evidences do not attach much importance for deciding this appeal. 8. Now the aspects required to be kept in mind for deciding this appeal are the two dying declarations, one recorded by the Executive Magistrate at Ex.16 and the other by way of complaint at Ex.45. Law on this point is very clear that if the dying declaration recorded by the CR.A/1331/2007 15/22 JUDGMENT Executive Magistrate is found to be trustworthy and free from doubt, it does not require any corroboration. However, dying declaration in the form of FIR or statement if found to be alone, it requires some corroboration. Keeping in mind the above aspects of the matter and the law laid down by the Apex Court on this issue, we have proceeded further in the matter. 9. From the evidence of the mother of the deceased Smt. Laxmiben Khimsuriya PW 3 Ex. 12, it is borne out that she has stated in her statement that she and her husband had gone to the in-laws' house of the deceased to accompany the deceased to her parental house for celebrating the forthcoming festival. However, on finding the house locked, the parents of the deceased went to the farm where they found the appellants and other family members sprinkling water on her. She and her husband had taken the victim to hospital as though requested the in-laws of her daughter refused to accompany the victim and them to the hospital. 9.1 The evidence of the Medical Officer Dr. Pravinchandra Vala is also perused by this Court. The Medical Officer in his evidence has stated that on 29.09.06, the victim was brought to the hospital by her father and on inquiry her father informed the doctor that CR.A/1331/2007 16/22 JUDGMENT due to forceful administration of the pesticide by the appellants, the victim had to be brought for treatment. 10. At this stage, it would also be quite relevant to peruse the decision of the Apex Court in the case of Vikas & Ors. (supra) reported in 2008(1) Supreme 433 as cited by Mr. Jani, learned APP. Para 34 of the said decision reads as under: “34. Considering the views expressed by different High Courts and also leading commentaries, the Court summarized the principles thus: (1)that it cannot be laid down as an absolute rule of law that a dying declaration cannot form the sole basis of conviction unless it is corroborated; (2)that each case must be determnined on its own facts keeping in view the circumstances in which the dying declaration was made; (3)that it cannot be laid down as a general proposition that a dying declaration is a weaker kind of evidence than other piece of evidence; (4)that a dying declaration stands on the same footing as another piece of evidence and has to be judged in the light of surrounding circumstances and with reference to the principles governing the weighing of evidence; (5)that a dying declaration which has been recorded by a competent magistrate in the proper manner, that is to say, in the form of questions and answers, and, as far as practicable, in the words of the maker of the declaration, stands on a much higher footing than a dying declaration which depends upon oral testimony which may suffer from all the infirmities of human memory and human character, and CR.A/1331/2007 17/22 JUDGMENT (6)that in order to test the reliability of a dying declaration, the Court has to keep in view the circumstances like the opportunity of the dying man for observation, for example, whether there was sufficient light if the crime was committed at night; whether the capacity of the man to remember the facts stated had not been imparied at the time he was making the statemetn, by circumstance beyond his control; that the statement has been consistent throughout if he had several opportunities of making a dying declaration apart from the official record of it; and that the statement had been made at the earliest opportunity and was not the result of tutoring by interested parties.” 10.1 As a result of the perusal of the aforesaid decision, the principles regarding applicability of dying declaration have become well settled. Conviction can be based solely on dying declaration if the conditions therefore are fulfilled. Further the principle underlying admissibility of dying declaration is reflected in the well-known legal maxim: Nemo moriturus praesumitur mentire; i.e. a man will not meet his Maker with a lie in his mouth. 10.2 Moreover, the dying declaration of the deceased should be of such a nature as to inspire full confidence of the Court in its correctness. The Court has to be on guard that the statement of deceased was not as a result of either tutoring, or prompting or a product of CR.A/1331/2007 18/22 JUDGMENT imagination. The Court must be further satisfied that the deceased was in a fit state of mind after a clear opportunity to observe and identify the assailant. Once the Court is satisfied that the declaration was true and voluntary, undoubtedly, it can base its conviction without any further corroboration. It cannot be laid down as an absolute rule of law that the dying declaration cannot form the sole basis of conviction unless it is corroborated. The rule requiring corroboration is merely a rule of prudence. 11. Applying the above principles to the facts of the case, in our judgement, the trial court was fully justified in relying upon two dying declarations recorded by (i) PW 5 Shri Premjibhai Danabhai Chauhan, Executive Magistrate, Rajkot City on 29.09.06 (Ex. 14) and (ii) PW 9 Shri Allarakha Chaniya, ASI Sapar-Veraval Police Station on 29.09.06 (Ex. 34). 11.1 It is required to be noted that from both the dying declarations it emerges that the deceased who had a marriage span of only four months with the appellant no.2 did not have any complaint from any of her in-laws. She has categorically mentioned in her dying declarations that the only harassment meted out to her was by the CR.A/1331/2007 19/22 JUDGMENT original accused-present appellants. The same is also corroborated by the statements and cross examination of the prosecution witnesses and the documentary evidence. The endorsement made by the Medical Officer in the first dying declaration that the victim was fully conscious throughout the recording of the dying declaration also strengthens the case of the prosecution. 11.2 In view of the same, it is clear that this is a pure case of homicidal death and not suicide as is tried to be portrayed by the appellants. The FSL/Post Mortem report also establishes that the cause of death of the deceased is the consumption of the poisonous substance. Even refusal to accompany the parents of the victim is also a valid aspect going against the accused. 11.3 Thus, on the basis of evidence on record, we find that a young lady whose marriage has been taken place six months prior to the incident has been brutally killed by the appellant accused. Her only fault was that she saw the appellant in a compromising position with the accused No.2 and objected the same which no woman would tolerate and, therefore, to keep her mouth shut, she has been killed by way of forcefully administering poison on her. They have not even taken any care to take her to the hospital. It is only after her parents came there when CR.A/1331/2007 20/22