IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No 354 of 1990 For Approval and Signature: Hon'ble MR.JUSTICE A.K.TRIVEDI and Hon'ble MR.JUSTICE J.R.VORA ============================================================ 1. Whether Reporters of Local Papers may be allowed : YES to see the judgements? 2. To be referred to the Reporter or not? : NO 3. Whether Their Lordships wish to see the fair copy : NO of the judgement? 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? 5. Whether it is to be circulated to the Civil Judge? : NO -------------------------------------------------------------- ANANDA NIMBA RAJPOOT Versus STATE OF GUJARAT -------------------------------------------------------------- Appearance: MS BANNA S DUTTA for Petitioner MR MA BUKHARI, APP for Respondent No. 1 -------------------------------------------------------------- CORAM : MR.JUSTICE A.K.TRIVEDI and MR.JUSTICE J.R.VORA Date of decision: 11/04/2000 ORAL JUDGEMENT : [ Per: Vora, J ] 1. The present appellant came to be tried by the learned Sessions Judge, Surat, in Session Case No. 157 of 1989 of charge under Section 302 of the Indian Penal Code. The present appellant came to be convicted by learned Sessions Judge, Surat, for life imprisonment for the charge proved against him vide his judgment dated 6th April, 1990. This appeal is preferred by the accused against the State being aggrieved by the above said judgment of conviction. Brief facts leading to the prosecution and filing of this Appeal are as under : 2. Deceased, in the unfortunate incident, is one Dhanuben, and she was wife of the present appellant. Dhanuben and the appellant were married before 4/5 years to the incident and were residing in Sardar Market, Opp: Dal Mill in hutments at Surat. The present appellant was doing labour work. From this marriage, they had a son aged about 2 years. At the time of incident, the present appellant was earning Rs. 100/- per day. As per the arrangement between husband and wife, they saved Rs. 50/- daily. The incident took place on 27th of June, 1989. On 26th June, 1989, in the afternoon, appellant took Rs. 400/- from their saving amount and returned to home at about 1'O clock at night and told to the deceased that he has lost all the money in gambling and he requires some more amount and demanded that amount from the deceased. The deceased had no money. Therefore, the appellant was irritated and gave beating to the deceased. Thereafter, the deceased slept outside the hut and her infant child was left in the hut. At about 4'O clock in the early morning on 27th June, 1989, when the deceased was in her deep sleep out side the hut, she experienced some burning sensation on her feet. She was awaken and saw that the appellant was present there. He had a bottle of kerosene in his hand. The clothes which were on the body of the deceased were burnt. At that time the deceased shouted that her husband had put her to fire and that he was escaping. Her body was burnt and she was fallen down on the ground. Persons residing nearby vicinity gathered and wrapped quilt around her, so the fire could be extinguished. Out of these persons, neighbours named Kailash and Damubhai were there. Thereafter in short while, her aunt (sister of mother) Umthaben reached at the residence of the deceased, and in a rickshaw she took the deceased to the hospital where Dr. Laxmanbhai Govindbhai Mewada was on duty and he treated her. She had 100% burn injuries all over the body of 1st degree and 2nd degree. On an enquiry by Dr. Laxmanbhai Govindbhai Mewada, deceased stated that she was burnt by her husband. At about 5.20 in the early morning on 27th June, 1989, Mahidharpura Police Station received a telephone message from the Maskati Hospital about the incident that one Dhanuben deceased was admitted to the hospital. In pursuance of this message, P.I. Mahidharpura Police Station Bapulal Dhorabhai Patel immediately reached to the Maskati Hospital and contacted Dr. Mewada, and according to him, she was in a position to give replies to the queries and, therefore, PI Mr. Bapulal Dhorabhai Patel recorded a complaint, which is at Exh. 23 as given by the deceased. Below this complaint, deceased put her thump impression and Dr. Mewada also made endorsement that the statement was taken in his presence. Thereafter, the complaint was sent to Mahidharpura Police Station for registration. PI Bapulal Dhorabhai Patel addressed a Yadi to the Executive Magistrate for recording of dying declaration of the deceased. On that Yadi, Dr. Mewada put an endorsement to the effect that "patient is in conscious state at present". The endorsement on the Yadi was put by Dr. Mewada at 7.10 a.m. on 27th of June, 1989. In pursuance to this Yadi (Exh.24), the Executive Magistrate Shri Hitendrabhai Rambhai Patel reached at the Maskati Hospital for recording of the dying declaration of Dhanubhen at 8.05 a.m. and inquired about the patient and inquired about the Doctor on duty who was treating deceased Dhanubhen. According to Hitendrabhai Rambhai Patel, he could find out the doctor and the doctor opined that the deceased was conscious and was in a state to give a statement. According to the Executive Magistrate, Doctor had given this opinion at Exh.24 Yadi and he relied upon that Yadi, recorded the dying declaration of deceased Dhanubhen, which was started at 8.10 a.m. In dying declaration, deceased vide para 6 regarding the incident, stated that she had a quarrel with her husband i.e. appellant at about 3'O clock at night (previous night). She further stated that her husband had lost money in the gambling and, therefore, there was quarrel. The quarrel became grave and her husband poured kerosene on her and put to her fire by a lamp. Thereafter, her husband had run away. Persons residing nearby gathered and they attempted to extinguish the fire by wrapping quilt around her. In the meantime, according to her, she was burnt in whole body and had become unconscious and gained consciousness in the hospital where she knew that her aunt took her to Maskati Hospital and at present she was fully conscious. Thereafter, the PI, Mahidharpura Police Station Mr. Bapulal Dhorabhai Patel, investigated the offence, drawn a panchnama of scene of offence, recorded the statements of the witnesses concerned, but on that day at 9.25 a.m. deceased Dhanubhen died in the hospital during the treatment. Postmortem was conducted. The accused i.e. present appellant was arrested. He had also burnt injuries on his both hands and ultimately a charge sheet came to be filed against the present appellant in the court of JMFC, Surat. The charge was under Section 302 of the Indian Penal Code, and hence, case was committed to the Court of Sessions at Surat; which was registered as Sessions Case No. 157/89. 3. Prosecution examined six witnesses in all. PW1 (Exh.11)) Dr. Rameshchandra Parbhubhai Gandhi, who has deposed that at 9.25, Dhanuben expired in the hospital. She had 100% burnt injuries. That death was due to extensive 100% burns and consequent blood circulation failure. He also examined the appellant on 28th July, 1989 at 12.15 hours, who had in all three burn injuries on right hand, on small finger of left hand and on abdomen. Those were simple injuries and Doctor issued certificate to that effect. PW2 Hitendrabhai Rameshbhai Patel, the Executive Magistrate, was examined at Exh.14 this witness recorded dying declaration of deceased Dhanuben, which is at Exh.15. PW3 Dr. Rameshchandra Purshotamdas Popat is examined at Exh.16, who had performed the postmortem examination of the deceased and according to him, there were burns superficial as well as deep (extensive) all over the body except right feet and Lumber Region of back. According to Dr. Popat, the death was due to shock as a result of superficial and deep burns. PW 4 Kailashbhai Kisanbhai has been examined at Exh.19. He happens to be a neighbour of deceased. He has deposed that after taking his supper, he slept and on hearing shout, he was awaken. When he reached along with others near the place of the incident, he saw that Dhanuben had got fire and was in flames. He wrapped quilt around her with the help of others present at that time. Thereafter, immediately, he states that the accused was also there and was attempted to extinguish the fire. Dhanuben was taken to the hospital by her aunt and thereafter along with others, he returned to his house. PW5 Dr. Laxmanbhai Govindbhai Mewada is examined at Exh.21 and according to him he was on duty over night till 8.00 a.m. on 27th June, 1989 and at 5.20 a.m. deceased Dhanuben was brought to Maskati Hospital. She was admitted and treated by him. On inquiry, Dhanuben stated that she was burnt by her husband. He made note of this fact in his case papers. According to him, Dhanuben was in proper condition to reply. Her body was wholly burnt. There were 100% burns in all over her body. According to Doctor, since he knew that a dying declaration was necessary, a sedative was given in less quantity. At 8.00 a.m. his duty was over and at about 9.25 a.m. Dhanuben was dead. Exhibit 24 was shown to him, wherein he deposed that he made a note regarding the condition of the deceased to give a statement and this endorsement is proved by the prosecution. However, the doctor though had carried the case papers with him, but did not produce the same. PW6 Bapulal Dhorabhai Patel is examined at Exh.22. He is the Investigating Officer. He received telephone message from the Maskati Hospital regarding the incident, so he reached at Maskati Hospital and contacted Dr. Mewada PW5, ascertained the condition of the patient and started to record the complaint, which is at Exh.23. After recording of the complaint as stated by deceased, a thumb mark was also taken on the complaint. Complaint was sent to the Police Station for registration, then he addressed the Yadi, which is at Exh.24 to PW2 for recording of dying declaration. Dr. Mewada has made an endorsement as stated above in the Yadi. He further deposes that he investigated the crime and submitted the charge sheet against the accused. On 28th June, 1989, the accused was arrested. Thereafter, he was sent to examination and treatment to the hospital. In documentary evidence, the prosecution produced panchnama of scene of offence, the map of the scene of offence at Exh.12. A certificate issued by Dr. Mewada, Medical Officer, Maskati Hospital in respect to deceased, which is produced at Exh.1. Certificate to the injuries of the accused is produced at Exh.13. Dying declaration as recorded by PW 14 Hitendrabhai Rambhai Patel (Exh.15), postmortem note regarding the deceased is produced at Exh. 17, a Yadi addressed by PW6 Investigating Officer to the Executive Magistrate regarding recording of the dying declaration of the deceased is produced at Exh.24. Mudammal of this case i.e. clothes of the deceased, etc. were sent to the chemical analyser and report from the Chemical Analyser, Surat is at Exh. 27. The complaint as recorded by PW6 of deceased Dhanubhen, is produced at Exh.23. 4. Learned Sessions Judge, Surat, after hearing both the sides, came to the conclusion that prosecution, beyond reasonable doubt, has established that the accused poured kerosene on deceased Dhanuben and put her to fire and was liable to punishment under Section 302 of the Indian Penal Code. Learned Sessions Judge has placed reliance on three dying declarations produced by the prosecution in evidence. More particularly learned Sessions Judge relied upon the oral statement made by deceased before PW5 Dr. Laxmanbhai Govindbhai Mewada that she was burnt by her husband and, therefore vide his judgment and order dated 6th April, 1990, learned Sessions Judge convicted the appellant and sentenced him for life imprisonment and also fined him for Rs.100/-. Against this order, the present Appeal has been preferred by the appellant in this Court. 5. Learned Advocate Ms. Banna S. Dutta on behalf of the appellant was heard and learned APP Mr. M.A. Bukhari was heard on behalf of the State. Learned Advocate for the appellant assailed the decision of the learned Sessions Judge mainly on the ground that the case is based on dying declaration and on careful scrutiny, dying declarations do not inspire any confidence and learned trial judge erred in relying on those dying declarations. It was urged that the prosecution failed to establish that the deceased was in a fit state of mind to make a statement regarding her cause of death. It was urged that as decided by the Apex Court, mere consciousness of the patient is not enough to rely upon the dying declaration but the Court must satisfy itself about the mental condition of the patient. It was urged that nowhere in the prosecution case, it has been certified by the medical expert that Dhanuben was in fit state of mind to give dying declarations and, therefore, it was urged that the conviction based on this evidence be set aside and the appellant be acquitted. 6. On the other hand, learned APP Mr. M.A. Bukhari has relied on some case laws from this Court and from the Apex Court, which will be discussed at the appropriate place, and has urged that dying declaration (Exh.15) inspires confidence due to the manner and method in which it is recorded. Mr. Bukhari urged that in Exh.15 dying declaration before the Executive Magistrate, the deceased has given logical replies to the queries put to her. Not only that, in last query, she has expressed her concern for her minor child and having referred to the replies given by the deceased to the Executive magistrate vide Exh.15, a presumption can easily be drawn that the deceased was in fit state of mind to make a statement as to the cause of her death. It was also urged that the deceased communicated to the Doctor her cause of death and she specifically stated that she was burnt and put to fire by her husband only. Learned APP Mr. Bukhari urged that PW5 Dr. Mewada is an uninterested and independent witness and there is no reason to disbelieve the deposition and the say of the Doctor to the extent that the deceased communicated to him that she was burnt by her husband. Learned APP Mr. Bukhari urged that this communication may not be taken as a dying declaration but a simple communication to an independent witness PW5 Doctor and reliance can be placed on him. It was further urged that PW5, to whom Dhanuben stated that she was burnt by her husband, is the Doctor, who had treated her and, therefore he was the best expert person to know the mental condition of the patient. On this premises, learned APP Mr.Bukhari vehemently supported the judgment and order of conviction of learned Sessions Judge, Surat. 7. Having considered the rival contentions and going through entirely the record of the case, it appears that the case of the prosecution rests on three dying declarations of the deceased. There is no other evidence, circumstances as well as direct. There is no eye witness. Out of these three dying declarations, on which the prosecution has put reliance one is an oral dying declaration made by the deceased before Dr. Laxmanbhai Govindbhai Mewada - PW5 (Exh. 21). Another dying declaration is at Exh.15, which was recorded by PW2 Hitendrabhai Rambhai Patel, Executive Magistrate. The third dying declaration is the complaint as recorded by Bapulal Dhorabhai Patel PW6 (Exh.22) PI of Mahidharpura Police Station and the complaint is at Exh.23. The first dying declaration in point of time is alleged to have been made by the deceased at about 5.20 a.m. before Dr. Laxmanbhai Govindbhai Patel - PW5. Complaint (Exh.23) the second dying declaration came to be recorded by PW-6 Bapubhai Dhorabhai Patel, PI Mahidharpura Police Station. Thereafter at 8.10 a.m. PW2 Hitendrabhai Rambhai Patel, Executive Magistrate recorded the third dying declaration of deceased (Exh.15.) 8. There cannot be any doubt regarding the proposition that dying declaration may be the sole evidence if relied upon can form the basis for conviction. Ordinarily, the statement of the witnesses cannot be relied upon unless the witness stands to cross-examination of the opposite party, but under section 32 of the Evidence Act, a statement of the deceased as to the cause of her death is a relevant and admissible evidence and if found reliable, can solely form the basis of conviction. Therefore, a careful scrutiny of dying declaration is required by the courts. In this case, the whole prosecution story depends on the above said three dying declarations of the deceased. Law as settled by the Apex Court in this regard is as under. 9. We shall first discuss the law to deal with the dying declarations, then, shall discuss the facts of the case. In the matter of HEIKRUJAM CHAOBA SINGH vs. STATE OF MANIPUR, reported in (1999) 8 SCC 458, in para 3, a Bench of the Apex Court observed that an oral dying declaration no doubt can form the basis of conviction, though the courts seek for corroboration as a rule of prudence. But before the said declaration can be acted upon, the court must be satisfied about the truthfulness of the same and that the said declaration was made by the deceased while he was in a fit condition to make the statement. Thus, the Apex Court has observed that while appreciating the evidence of dying declaration, the court must be satisfied on two aspects. The first is truthfulness of the dying declaration and the second is the mental capacity of the deceased to make a statement. Like wise, in the case of PAPARAMBAKA ROSAMMA & ORS. vs. STATE OF ANDHRA PRADESH, reported in 1999 (6) JT 585, a Bench of the Apex Court in para 9 of the judgment observed as under : "It is true that the medical officer Dr. K. Vishnupriya Devi (PW 10) at the end of the dying declaration had certified "patient is conscious while recording the statement". It has come on record that the injured Smt. Venkata Ramana had sustained extensive burn injuries on her person. Dr. P. Koteswara Rao (PW9) who performed the post-mortem stated that injured had sustained 90% burn injuries. In this case as stated earlier, the prosecution case solely rested on the dying declaration. It was, therefore, necessary for the prosecution to prove the dying declaration being genuine, true and free from all doubts and it was recorded when the injured was in a fit state of mind. In our opinion, the certificate appended to the dying declaration at the end by Dr. Smt. K. Vishnupriya Devi (PW 10) did not comply with the requirement inasmuch as she has failed to certify that the injured was in a fit state of mind at the time of recording the dying declaration. The certificate of the said expert at the end only says that "patient is conscious while recording the statement." In view of these material omissions, it would not be safe to accept the dying declaration (Ex. P-14) as true and genuine and was made when the injured was in a fit state of mind. From the judgments of the courts below, it appears that this aspect was not kept in mind and resultantly erred in accepting the said dying declaration (Ex.p-14) as a true, genuine and was made when the injured was in a fit state of mind. In medical science two stages namely conscious and a fit state of mind are distinct and are not synonymous. One may be a conscious but not necessarily in a fit state of mind. This distinction was overlooked by the courts below. 10. Thus, by this proposition, the Apex Court has made it clear that in medical science, two stages, namely, consciousness and a fit state of mind are distinct and are not synonymous. One may be conscious but not necessarily in a fit state of mind. What is required to be proved therefore in such cases according to the proposition as laid down by the Apex court is the fit state of mind of the deceased over and above the consciousness and the truthfulness and genuineness of the dying declarations. 11. In the case of STATE OF ORISSA vs. PARASURAM NAIK, reported in AIR 1997 SC 3569, a Bench of the Apex Court in para 6 observed that absence of certificate showing deceased to be medically fit to make statement dying declaration recorded by doctor could not be relied upon and conviction based on that dying declaration was held not proper. 12. Therefore, from the above case laws as propounded by the Apex Court, the clear principle of law which emerges is that the dying declaration alone can be a basis for conviction, may not require even corroboration but before that it must be proved by the prosecution beyond doubt and to the satisfaction of the Court that the patient was not only conscious but was in a fit state of mind to make a statement over and above the truthfulness and genuineness of the dying declaration. Though, under Section 32 of the Evidence Act, dying declarations are admissible evidence, but they are subject to thorough judicial scrutiny while relying upon and while the same is made basis for conviction by the courts. At least, from the evidence of the prosecution a court dealing with the dying declaration as propounded in Heikrujam Chaoba Singh (supra), must satisfy itself about the genuineness, truthfulness and mental state of the deceased, who made the dying declaration. 13. Reverting back to the facts of this case, we shall first deal with the dying declaration as recorded by the Executive Magistrate - PW2 Hitendrabhai Rambhai Patel (Exh.14) and the dying declaration which is in the form of complaint (Exh.23) as recorded by PW-6 Bapulal Dhorabhai Patel, PI, Mahidharpura Police Station. Now, in point of time, Exh. 23 complaint came to be recorded before Exh.15 dying declaration by Executive Magistrate. In this regard scrutinising the evidence of PW6, he has deposed that when he reached to the Maskati Hospital, he contacted Dr. Mewada and inquired about the health of the deceased i.e. Dhanuben. Then, he deposed that Dhanuben was in position to give reply and, therefore, an inquiry was made from her and complaint (Exh.23) came to be recorded. The right hand thumb impression of Dhanuben was obtained in the complaint and an endorsement was made by the Doctor PW5 Mewada that the statement was taken in his presence. Now, according to the proposition of law as settled down by the Apex Court in the above mentioned cases, this endorsement of the Doctor does not inspire confidence or satisfaction that the patient was in a fit state of mind to make statement. PW6 has inquired about the health of the deceased Dhanuben from the Doctor. Now in his deposition, it is not clear whether Doctor opined that deceased was in a fit state to reply the queries and that whether what is stated by PW6 in his deposition that Dhanuben was in position to reply was his own opinion. If it was the opinion of PW6, it carries no evidentiary value. If it is the opinion of the Doctor Mewada PW5 that Dhanuben was in position to reply, then it is unexplained why Doctor did not put his endorsement to that effect below Exh.23 that she was conscious and was in a fit state of mind to give replies to queries. Instead, Dr. Mewada PW-5 put an endorsement below the complaint that the statement was taken in his presence. Ordinarily, he was required to put an endorsement regarding the consciousness and the mental capacity of the deceased but it is in the darkness that what circumstances prevented the Doctor to make such an endorsement. If the Doctor was of the opinion, as per the say of PW6,