CR.A/1140/1998 1/19 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 1140 of 1998 For Approval and Signature: HONOURABLE MR.JUSTICE A.L.DAVE HONOURABLE MR.JUSTICE BANKIM.N.MEHTA ========================================================= 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 ? ========================================================= AKBAR MOHAMED MUNNI MOHAMED & 1 - Appellant(s) Versus STATE OF GUJARAT - Opponent(s) ========================================================= Appearance : MR MH BAREJIA for Appellant(s) : 1 - 2. MR.PRACHCHAK, ADDL.PUBLIC PROSECUTOR for Opponent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE A.L.DAVE and HONOURABLE MR.JUSTICE BANKIM.N.MEHTA Date : 14-17/08/2006 ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE A.L.DAVE) CR.A/1140/1998 2/19 JUDGMENT The appellants are convicted for the offence of murder of one Mohmmed Salim, allegedly committed by them at about 23:45 hours on 10th June, 1997, in the house of the deceased located in Madinanagar, near Gauri Cinema in Bapunagar area of Ahmedabad City, after trespassing into the house. They are sentenced to undergo imprisonment for life and to pay a fine of Rs.500/- each and in default to undergo rigorous imprisonment for six months for the offence of murder. Whereas, for the offence of trespass, they are sentenced to undergo rigorous imprisonment for two years and to pay a fine of Rs.200/-, in default to undergo rigorous imprisonment for three months. 1.1 As per the prosecution case, appellant No.1, maintained illicit relation with Salmabibi, wife of deceased-Mohmmed Salim. This had resulted into the disputes between the deceased and his wife. On the day of incident also, there had been some dispute in this regard between the two. It is the case of the prosecution that at about 23:45 hours when the deceased was in his house, the appellants entered into the house, poured kerosene on him from a tin and set him to fire and thereafter absconded. The deceased sustained 95 to 100 % burns. He was taken to Shardaben Hospital, was admitted and was given treatment. The Police was informed. Executive Magistrate was also summoned and ultimately, the F.I.R. was recorded and offence was registered. The deceased however succumbed to the injuries around 7:00 a.m. in the next morning. The appellants were arrested, statements of the witnesses were recorded, Panchnamas were drawn, postmortem of the dead body was performed and ultimately having found sufficient material against the CR.A/1140/1998 3/19 JUDGMENT appellants, charge-sheet was filed against them in Metropolitan Court. However, as the offences were triable exclusively by the Court of Sessions, the case was committed to the City Sessions Court at Ahmedabad and numbered as Sessions Case No.226 of 1997. 1.2 The Sessions Court framed charge at Exh.1 to which both the accused/appellants pleaded not guilty and they came to be tried. After considering the evidence led by the prosecution, as well as the defence, the trial Court came to a conclusion that the prosecution was successful in establishing the charges levelled against the accused-appellants and recorded conviction as stated above. Being aggrieved by the judgment and order dated 27th November, 1998, present appeal is preferred. 2. Learned Advocate, Mr.Barejia, appearing for the appellants, submitted that the prosecution case mainly depended on the dying declaration of the deceased and evidence of Salmabibi, wife of the deceased, who was present outside the house when the incident occurred. Mr.Barejia, submitted that Salmabibi has not supported the prosecution case, but the trial Court has found trustworthiness in the dying declaration and has recorded the conviction. 2.1 Mr.Barejia, submitted that there are four dying declarations in the case. First when the deceased was taken to hospital and history was recorded at the time of admission, secondly, when the deceased was taken to plastic surgery ward and history was recorded by the doctor, third when a formal dying declaration came to be recorded by Executive Magistrate and fourth when the CR.A/1140/1998 4/19 JUDGMENT Investigating Officer took the F.I.R. of the deceased. 2.1.1 Learned Advocate, Mr.Barejia, submitted that these dying declarations are inconsistent. The first case history recorded by Dr.Anita Prasad records that it was a case of admitted suicide by the deceased. In the case history recorded by Dr.Lakhani, the treating doctor, the history is given that of homicidal burns caused by Akbar and Munir and there is no reference to Akhtar. Munir is not an accused. It was submitted that in the dying declaration before the Executive Magistrate, there is reference to Akbar and Akhtar and no reference to Munir and in the F.I.R. which is last in point of time, the deceased has given complete details of the appellants. 2.2 It was contended that all these dying declarations therefore are not consistent so far as identity of the assailants is concerned and the later three dying declarations are inconsistent with the first dying declaration. It was therefore submitted that where there were more than one dying declaration, the first in point of time may be accepted. In the instant case, the first dying declaration speaks of suicidal burns and therefore the conviction may be set aside. 2.3 Learned Advocate, Mr.Barejia, submitted that apart from the above aspects, the dying declarations individually also suffer from several defects. The dying declaration before Dr.Lakhani is defective for the reason that the time of recording it is doubtful. Dr.Lakhani says that it was recorded at 1:00 a.m. on 11/6/1997. Whereas, it has come in evidence that the first dying CR.A/1140/1998 5/19 JUDGMENT declaration in form of case history about suicidal burns was also recorded at 1 O'clock. It was submitted that it has also come in evidence that two place where dying declarations were recorded are different and therefore, the two dying declarations could not have been recorded at the same time. Apart from this, there is inconsistency about the identity of the assailants when name of the assailants is given as Akbar and Munir where; Munir is not accused at all. Akhtar, accused No.2 is not named and Munir being father of Akbar is also not indicated. 2.4 It was contended further that the dying declaration before the Executive Magistrate was recorded between 3:15 and 3:35 a.m. on 11th June, 1997. There is no medical evidence to suggest that when the dying declaration was recorded, the deceased was conscious and in fit state of mind. The doctor has given a certificate at 3:50 a.m. after the recording was concluded at 3:35 a.m. and in absence of such corroborative medical evidence, the dying declaration may not be accepted. It was contended that the case papers do not indicate that patient was ever examined by the doctor between 1:00 a.m. and 6:45 a.m. The deceased had sustained 95% to 100% burns and his condition may not have been stable. What was his condition when the dying declaration was recorded has not come on record and therefore the second dying declaration in form of history given to Dr.Lakhani may not be accepted. 2.5 Similarly, when the Investigating Officer recorded the first information report which has to be treated as dying declaration, there is no certification CR.A/1140/1998 6/19 JUDGMENT by the doctor about the consciousness of the deceased and fit state of mind. 2.6 It was contended that the deceased was educated and was able to sign. However, in dying declaration before the Executive Magistrate, as well as in the F.I.R., his thumb impression is taken. According to the Executive Magistrate, as well as, the Police Officer, the deceased had sustained burns but thumb was not so badly burnt and therefore thumb impression was taken. However, Dr.Lakhani, has admitted in his cross-examination that the deceased had sustained severe burns on his hand fingers and thumb and that they were bandaged. If that be so, there could not have been a thumb impression given by the deceased, which would have imprints of his skin marks and therefore the thumb impression appearing on the dying declaration and the F.I.R. would be rendered doubtful. 2.7 The scribe who wrote down the F.I.R. has not been examined by the prosecution. Only the P.S.I. before whom the F.I.R. was recorded has been examined. 2.8 It was contended that the Investigating Agency has not acted independently and efficiently. There has been no investigation to ascertain whether the burns injuries were or were not homicidal or suicidal. The Investigating Agency has proceeded on bare words of the doctor which are on basis of case history recorded by the doctor that the burns were homicidal but there has been no investigation in that direction. 2.9 It was therefore contended that the prosecution suffers from a large number of infirmities and therefore CR.A/1140/1998 7/19 JUDGMENT the appeal may be allowed. It was also contended that there is no evidence to show any intention or knowledge on part of the appellants to commit murder of the deceased and the benefit in this regard should go the accused-appellants. It was also contended that even if the prosecution takes at face value, it was only appellant No.2 who could have some grudge, grievance or motive against the deceased but not appellant No.2. There is inconsistency of evidence about involvement of the appellant No.2 in the incident and therefore, the benefit of doubt may be given to appellant No.2 if not to both and appeal may accordingly be allowed. 3. Learned A.P.P., Mr.Prachchak, has opposed this appeal. According to him, there is no discrepancy, there is no inconsistency and there are no contradictions in the prosecution case. He submitted that the case history where it is indicated that the deceased sustained suicidal burns may have been given by Salmabibi, who appears to have taken the deceased to the hospital. Dr.Anita Prasad, who has recorded the case history has deposed that she would not be able to say as to whether the history was given by the deceased or by any relative. The history may have been given by Salmabibi, who is alleged to have illicit relation with appellant No.1, who has provided the motive for the appellants to commit the crime. The doctor who recorded the history is also not sure as to who gave the history. Mr.Prachchak, submitted that rest of the three dying declarations are consistent with each other which are recorded by a doctor, an Executive Magistrate and a Police Officer, who are all independent Government servants and have no axe to grind against the appellants, nor are they indicated to have CR.A/1140/1998 8/19 JUDGMENT any interest against the appellants. Mr.Prachchak, submitted that there appears some discrepancy so far as the time aspects are concerned, but the time difference, if any, is marginal which cannot abrogate the truthful evidence emerging from depositions of witnesses and contemporaneous record maintained in ordinary course of business. 3.1 Mr.Prachchak, submitted that the deceased was educated but only upto 2nd standard. It has come in evidence of the Executive Magistrate that the deceased had burns on his fingers but not on thumb and therefore, thumb impression was taken. A doubt is sought to be created by the appellant about dying declaration and the F.I.R. on this ground, but the postmortem notes, if examined, clearly indicate in column No.7 that there were mark of blue ink on the palmer aspect of the left thumb. There has been no challenge to this aspect and there is no reason to disbelieve this contemporaneous record and therefore the dying declaration recorded before the Executive Magistrate and the F.I.R. may not be doubted. 3.2 Mr.Prachchak, submitted that the patient appears to have been lastly examined at about 1:00 a.m. followed by again at 2:00 a.m. when Yadi was sent to the Executive Magistrate with an endorsement from the doctor that the patient was consciousness and well oriented. Again the doctor has examined and certified him to be fully conscious and well oriented at 3:50 a.m. Even, from the oral evidence of the doctor, it is clear that the patient was conscious and well oriented till 6:35 in the next morning. It is true that there is no entry in the medical case papers in this regard but depositions of CR.A/1140/1998 9/19 JUDGMENT the Executive Magistrate and the doctor corroborate each other and indicate that patient was examined by the doctor during this period about consciousness and fit state of mind. 3.3 Mr.Prachchak, submitted that as per the proposition of law on dying declarations as settled by various pronouncement of the Apex Court, if the person who recorded the dying declaration satisfied about the consciousness and fitness of mind of the declarant, lack of certification by a doctor, would not be fatal to the prosecution. It was therefore submitted that the appeal may be dismissed. 17/08/2006 3.4 Mr.Prachchak, also relied on decision in case of Anilkumar I. Parmar Vs. State of Gujarat, reported in 1999 (2) G.L.R. 1469 in support of his contention that where there are more than one dying declarations and if name or role of one of the assailants is not found in some of such dying declarations, it would not be fatal to the prosecution and the evidence will have to be judged as a whole. He, therefore, submitted that fact that in the dying declaration before Dr.Lakhani, there is no reference to accused No.1 will be of no consequence. 4. We have taken into consideration rival side contentions raised before us in light of the evidence on record and the settled proposition of law. 5. At the outset, we may mention that the case depends mainly on dying declarations. Reason being that although, as per prosecution case, the incident had CR.A/1140/1998 10/19 JUDGMENT occurred in presence of Salmaben, wife of deceased- Mohmmed Salim, she has not supported the prosecution case. She has been treated as a hostile witness and therefore, what is left for the prosecution in support of its case is the evidence in form of dying declarations. 5.1 The first dying declaration appears to be in form of case history recorded by the Chief Medical Officer at the time of admission to the hospital. It is recorded on the emergency room record filled in by the doctor, who has been examined as Defence Witness No.1 Dr.Anita Ram Prasad at Exh.76. It is recorded in the case papers thus: "alleged h/o suicidal burn injury." It appears that thereafter the deceased was advised to be admitted in the plastic ward. 5.2 On reaching the plastic ward, he was examined by Dr.Lakhani and on the case papers, he has recorded thus: "H/o given by patient. Patient fully conscious, well oriented. H/o. homicidal burns. Patient has given history. He was burned by Akbar and Munir after pouring kerosene at about midnight." This is second dying declaration before another doctor in form of case history given by the deceased which is reduced in writing by the doctor before whom it is made. However, it is not in the same language and words of the deceased. CR.A/1140/1998 11/19 JUDGMENT 5.2.1 The third dying declaration is before the Executive Magistrate which is at Exh.27. This is recorded by the Executive Magistrate in his own handwritings in Gujarati script. The language however is Hindi and this dying declaration implicates Akbar and Akhtar without reference to name of their father. 5.2.2 The last dying declaration is in form of the F.I.R., recorded by the Investigating Officer, which is produced at Exh.40 where; there is specific reference to both the appellants with details as to how the incident has occurred and the motive for the alleged assault. 6. It is true that in the first history given to Dr.Anita, Defence Witness No.1, history was of suicidal burns injuries but within moments thereafter the history is that of homicidal burns which is given to Dr.Lakhani. The history recorded by Dr.Lakhani clearly indicates that the history was given by the deceased himself. It also appears that he was fully conscious and well oriented. Dr.Lakhani has also stated so in his deposition. 6.1.1 Against this if evidence in support of the first dying declaration before Dr.Anita is seen, the case paper is silent on aspect as to who gave the history. Dr.Anita in her deposition has stated that she is not sure as to who gave the history to her. But, if contemporaneous record is examined, it is found that the emergency room record indicates that the deceased was brought by Salmabibi Mohmmed Salim. She is the wife of the deceased and significantly she has not supported the prosecution case. The dying declarations clearly impute CR.A/1140/1998 12/19 JUDGMENT the motive of appellant No.1 having illicit relations with Salmabibi and therefore, in our opinion, the history recorded by Dr.Anita cannot be attached much significance or importance. 7. Now, if we examine the history recorded by Dr.Lakhani, it clearly implicates appellant No.1 and Munir. Munir is the name of the father of the appellants and has never been arraigned as an accused. But, this case history reduced into writing by the doctor in ordinary course of words does implicate appellant No.1. 7.1 This dying declaration is sought to be assailed on the ground that according to Dr.Lakhani, he examined patient and recorded the history at 1:00 a.m. Whereas, as per the emergency room record, the history was recorded by Dr.Anita again at 1:00 a.m. and it has come on record that the places are the different. The deceased was firstly received by Dr.Anita and then she referred to plastic ward which is at a different location in the hospital and after reaching there, the patient was examined by Dr.Lakhani and therefore, it was contended that the history recorded by Dr.Lakhani could not have been at 1:00 a.m., as is asserted by the doctor. Barring timing aspect, no other ground is indicated to assail this history recorded by Dr.Lakhani. In our opinion, the timing may not be of that significance for the reason that there is no dispute on the aspect that after the patient was received by Dr.Anita he was immediately advised for admission to plastic ward. The case papers indicate that no treatment was given at that stage. This may not have consumed except a few moments and the patient was taken to plastic ward which is in same CR.A/1140/1998 13/19 JUDGMENT premises but at a different floor. This may not have taken much time. The timing part therefore may appear to be same even on account of difference in timing between the watches of the two doctors. The first dying declaration is not significance for the reason that doctor herself is not sure as to who gave the history. Whereas, the history given to Dr.Lakhani was by the deceased himself. Dr.Lakhani is an independent witness, has no axe to grind against the accused or there is no reason to do undue favour anyone else. 7.2 The third dying declaration is recorded by the Executive Magistrate. The Executive Magistrate is examined at Exh.25. He is Ranjitsinh V. Gohil. From his deposition, it is clear that on receiving yadi, he went to the hospital, he got in touch with the Ward in-charge, got the patient identified. He interrogated the deceased. He found that the deceased was speaking Hindi language. His mental status was normal and was able to speak. The Executive Magistrate has stated that because the patient was speaking the Hindi language, he put the questions to him in Hindi language. He reduced those questions into writing in Hindi language but in Gujarati script. He recorded the answers also in Hindi language but in Gujarati script. The Magistrate proves the contents of the dying declaration as well. He stated that he had not obtained opinion of the doctor prior to recording of the dying declaration about the health status of the patient. However, he obtained such opinion after completion of recording of the dying declaration. The doctor put his endorsement at 3:50 a.m. 7.2.1 The Executive Magistrate has been cross- CR.A/1140/1998 14/19 JUDGMENT examined at length and he has in terms stated that the deceased had not sustained burns on thumb. He had asked the deceased about his educational status and was told that he had studied upto 2nd standard. He, therefore, asked patient to sign the dying declaration but because his eyes were burnt, so also, fingers, the deceased was not in a position to see or sign and therefore he did not obtain his signature but obtained his thumb impression. This explanation is emerging from his cross-examination. Witness admits that he has recorded in the last portion of the dying declaration that he had taken opinion of the doctor about status of the patient; whereas, in-fact, he did not obtain such an opinion prior to recording of the dying declaration. 7.2.2 This dying declaration is sought to be assailed on the ground that before recording dying declaration, opinion of the doctor about consciousness and state of mind of the declaration was not obtained. It was also contended that the witness has stated in the dying declaration that he had obtained such an opinion which is contrary to his deposition. Much was argued on thumb impression aspect. This was so done in light of evidence of Dr.Lakhani that the deceased had sustained burns on thumb also and bandage was put. It was therefore contended that if bandage was there, the thumb impression could not have shown imprints of ridges and if that is so, the dying declaration could not have been believed in light of the decision in case of State of Punjab Vs. Gian Kaur And Another, reported in 1998 SCC (CRIMINAL) 942. 7.2.3 However, we find that the witness has a CR.A/1140/1998 15/19 JUDGMENT regard for truth and has admitted his own mistake of having recorded in the last part of the dying declaration he had obtained opinion of the doctor. He could have very well stuck to that version but instead he has been candid enough to state in his deposition that he had not obtained opinion of the doctor prior to recording the dying declaration. We are satisfied about the consciousness and mental status of the deceased for the reason that when the patient was received by Dr.Lakhani at 1 O'clock he has stated that the patient was fully conscious and oriented. Thereafter, when yadi was sent to the Executive Magistrate at about 2:00 a.m., again doctor certified that the patient was fully conscious and oriented and thereafter after the completion of dying declaration at 3:50 a.m. doctor opined that the patient was fully conscious and oriented. This is the consistent status of health of the patient and we have no reason to believe that between 3:15 a.m. and 3:35 a.m.deceased was either not conscious and not in fit state of mind to give dying declaration. 7.2.4 As regards the doubt sought to be raised on thumb impression of the deceased, in our opinion, the evidence of the Executive Magistrate has to be given more weightage that the thumb was not burnt and therefore he took thumb impression on the dying declaration. Dr.Lakhani may have given an admission that thumb was also burnt and bandage was put but, that may be of a general impression out of so many patient that he may have treated. Whereas, the evidence of the Executive Magistrate who is an independent person is based on his personal involvement in the act of taking thumb impression. Apart from this, the say of the Executive CR.A/1140/1998 16/19 JUDGMENT Magistrate gets corroborative through a noting in Column No.7 of the postmortem notes which reads thus: "Blue ink stains on palmer aspect of left thumb" This conclusively clinches the issue and adds strength and trustworthiness to the evidence of Executive Magistrate. 7.2.5 It was contended that the fact that doctor had examined the patient at 3:50 a.m. is not reflected in the medical case papers. The medical case papers only