Gujarat High Court
State Of Gujarat vs Vaniya Mukeshkumar Jethalal on 14 October, 2024
NEUTRAL CITATION
R/CR.A/1301/2009 JUDGMENT DATED: 14/10/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 1301 of 2009
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK
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1 Whether Reporters of Local Papers may be Yes
allowed to see the judgment ?
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair No
copy of the judgment ?
4 Whether this case involves a substantial No
question of law as to the interpretation of the
Constitution of India or any order made
thereunder ?
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STATE OF GUJARAT
Versus
VANIYA MUKESHKUMAR JETHALAL & ORS.
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Appearance:
MS JYOTI BHATT ADDL. PUBLIC PROSECUTOR for the Appellant
MR MEHUL SHARAD SHAH(773) for the Respondents No. 1,2,3,4
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CORAM:HONOURABLE MR. JUSTICE HEMANT M.
PRACHCHHAK
Date : 14/10/2024
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NEUTRAL CITATION
R/CR.A/1301/2009 JUDGMENT DATED: 14/10/2024
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ORAL JUDGMENT
1. The present appeal is filed by the appellant - State of Gujarat under Section 378(1)(3) of the Criminal Procedure Code against the impugned judgment and order dated 18.04.2009 passed by the learned Additional Sessions Judge, Fast Track Court No.2, Patan (hereinafter referred to as "the trial Court") in Sessions Case No.60 of 2008 whereby the trial Court acquitted the accused from the charges levelled against the accused for the offences punishable under Section 498A, 323, 306, 114 etc of the Indian Penal Code.
2. Brief facts of the present case are, in nutshell, as under:-
2.1 It is the case of the prosecution that on 26.06.2008 at about 12.15 hours Alkaben married with accused No.1 and out of the said wedlock, they have two children i.e. one daughter namely Sonal @ Swati aged about 15 years and one son namely Hardik aged about 12 years and the marriage span of 19 years.
It is also the case of the prosecution that Alkaben was residing separately with her husband and two children at Village:
Kundher. That because of the dislike her by the the accused - husband, who was compelled her to keep illicit relation with others and for which, other accused abetted in the alleged offences and also accused No.4 along with others were in bad intention towards the daughter Sonal @ Swati. All accused connivance with each other were giving ill-treatment and torture to the deceased and on account of the said reason, the deceased Page 2 of 29 Uploaded by V.R. PANCHAL(HC00171) on Tue Oct 22 2024 Downloaded on : Sat Oct 26 22:38:32 IST 2024 NEUTRAL CITATION R/CR.A/1301/2009 JUDGMENT DATED: 14/10/2024 undefined committed suicide by pouring kerosene on herself. That thereafter, the deceased was shifted to nearby hospital in injured condition by their relatives and she has given / registered the First Information Report at Exhibit 63 as considered the same as dying declaration and the said offence came to be registered. It is further the case of the prosecution that on 26.06.2008, the deceased sustained burn injury and, thereafter, almost twenty days i.e. on 18.07.2008, the deceased succumbed to the injury in the hospital at Mehsana for the alleged offence.
3. A complaint came to be registered as C.R.No.I-123 of 2008 at Patan City "A" Division Police Station for the aforesaid offences. During the investigation, the accused was arrested.
4. After completion of investigation, as the sufficient evidence was found, the police has arrested the accused and has filed the charge-sheet against the accused before the Judicial Magistrate (First Class), Patan wherein it was registered as Criminal Case No.4880 of 2008. As the offence was triable by the Court of Sessions, the Judicial Magistrate (First Class) has committed the case under Section 209 of the Criminal Procedure Code to the Court of Sessions wherein it has been registered as Sessions Case No.60 of 2008.
5. The charge against the accused came to be framed by the trial Court vide Exhibit 6 for the aforesaid offences. On being explained it to them, the accused pleaded not guilty to the charge and pleaded for trial. Hence, the case was tried by the Page 3 of 29 Uploaded by V.R. PANCHAL(HC00171) on Tue Oct 22 2024 Downloaded on : Sat Oct 26 22:38:32 IST 2024 NEUTRAL CITATION R/CR.A/1301/2009 JUDGMENT DATED: 14/10/2024 undefined trial Court.
6. It appears from the records that the prosecution has examined the following witnesses:-
P.W.1 Danaji Nagjiji Exhibit 13
P.W.2 Hareshbhai Hirabhai Parmar Exhibit 15
P.W.3 Mulchandbhai Devjibhai Parmar Exhibit 20
P.W.4 Sureshbhai Lavjibhai Parmar Exhibit 22
P.W.5 Kokilaben Manubhai Rathod Exhibit 24
P.W.6 Nagarbhai Dahyabhai Parmar Exhibit 25
P.W.7 Dr. Ronak Hemantkumar Gandhi Exhibit 29
P.W.8 Dr. Bhaktibhai Varvabhai Prajapati Exhibit 32
P.W.9 Dr. Kiritbhai Dahyabhai Patel Exhibit 35
P.W.10 Dr. Rajeshkumar Rameshchandra Mehta Exhibit37 P.W.11 Khemchandbhai Varubhai Shrimali Exhibit 39 P.W.12 Murtujaali Mahemudmiya Saiyed Exhibit 42 P.W.13 Motilal Rupaji Asari Exhibit 48 P.W.14 Mukeshbhai Parsottamdas Parmar Exhibit 49 P.W.15 Gitaben Bhikhabhai Exhibit 50 P.W.16 Dr. Javed Ahemadbhai Mansuri Exhibit 51 P.W.17 Maniben Parsottambhai Parmar Exhibit 53 P.W.18 Janakkumar Girdharlal Exhibit 54 P.W.19 Virambhai Haribhai Exhibit 59 P.W.20 Jalaluddin Abdul Raheman Exhibit 62 P.W.21 Ishwarbhai Dhanjibhai Rathod Exhibit 64
7. The defence has also examined the witness namely D.W.1 Sonal @ Swati Mukeshbhai Vaniya at Exhibit No. 78.
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8. In addition to this, the prosecution has also produced the following documentary evidence:-
Sr.No Particular Exhibit 1. Panchnama of muddamal recovered by FSL 14 Officer from the scene of offence 2 Panchnama of scene of offence 21 3 Inquest Panchnama 23 4 Medical certificate of Indus Hospital, 30 Ahmedabad 5 Medical certificate of Indus Hospital, 31 Ahmedabad 6 P.M. Note of deceased Alkaben 33 7 Cause of death certificate 34 8 Medical certificate given by Dr. Kiritbhai 36 9 Report of the Scientific Officer at the scene of 38 offence 10 Yadi for taking dying declaration given to the 40 Executive Magistrate 11 Dying Declaration 41 12 Yadi wrote to the Executive Magistrate, 43 Magistrate for Inquest 13 Posthumous copy of the form 44 14 Yadi for postmortem of the deadbody 45 15 Receipt of possession of deadbody 46 16 Letter with regard to sending the investigation 47
papers sent by Head Constable of Mahesana city 17 Medical certificate given by Dr. Javed Mansuri 52 18 Depute Order 55 19 Yadi wrote to Patan City Police Station for 60 taking dying declaration of the deceased 20 Yadi for sending the papers to the Patan 61 Taluka Police Inspector 21 Complaint given by Alkaben 63 22 Report of adding Section 306 of IPC 65 23 Yadi for registration of the offence 66 Page 5 of 29 Uploaded by V.R. PANCHAL(HC00171) on Tue Oct 22 2024 Downloaded on : Sat Oct 26 22:38:32 IST 2024 NEUTRAL CITATION R/CR.A/1301/2009 JUDGMENT DATED: 14/10/2024 undefined 24 Forwarding Note 68 25 Yadi given to Indus Hospital, Ahmedabad for 69 giving certificate 26 Receipt of FSL regarding receiving the 70 muddamal 27 Forwarding letter of FSL Ahmedabad 71 28 Opinion of the FSL Ahmedabad
9. After closure of the evidence, the statement of the accused under section 313 of the Criminal Procedure Code, 1973 has been recorded wherein they denied of having committed any offence and have stated that they are innocent.
10. After hearing both sides and considering the evidence on record, the Trial Court by impugned judgment and order has acquitted the accused from all the charges levelled against them.
11. Heard Ms.Jyoti Bhatt, learned Additional Public Prosecutor appearing for the appellant - State of Gujarat and Mr.Mehul Sharad Shah, learned counsel appearing for respondents at length. Mr.Shah, learned counsel has submitted that during the pendency of the appeal, accused No.3 - Anilkumar Jethalal Vaniya has expired for which he has tendered a copy of the death certificate which is taken on record. The appeal qua accused No.3 stands abated accordingly.
12. Ms.Bhatt, learned Additional Public Prosecutor for the appellant - State of Gujarat has submitted the same facts which are narrated in the memo of appeal. She has taken through the Page 6 of 29 Uploaded by V.R. PANCHAL(HC00171) on Tue Oct 22 2024 Downloaded on : Sat Oct 26 22:38:32 IST 2024 NEUTRAL CITATION R/CR.A/1301/2009 JUDGMENT DATED: 14/10/2024 undefined relevant evidence of the witnesses and the documentary evidence to this Court and submitted that the impugned judgment and order is illegal, unjust and against the facts of the case. She has referred to the FIR recorded by the PSO in the hospital in the nature of dying declaration at Exhibit 63, which came to be recorded by the ASI, Patan City "A" Division Police Station on the very day i.e. on 26.06.2008, which is treated as dying declaration. She has submitted the FIR came to be registered on 26.06.2008 and the deceased died after almost 20 years and during that period again one another dying declaration was recorded by the Executive Magistrate at Exhibit 41 wherein the deceased specifically stated before the concerned Investigating Officer that because of the dislike by her husband, all the accused connivance with each other were giving physical and mental torture to her. She has submitted that though the prosecution has proved the fact that the husband was forced her to keep an illicit relation with others, however, the trial Court has completely ignored this aspect. She has submitted that the two independent witnesses have supported the case of the prosecution and the corroborative evidence of the deceased was not considered by the trial Court while passing the impugned judgment and order of acquittal. She has submitted that though the prosecution has produced the relevant documentary evidence in support of the case, but the trial Court has discarded the same. She has submitted that the trial Court has disbelieved the case of the prosecution on the ground that the relatives of the deceased have not supported the case of the prosecution Page 7 of 29 Uploaded by V.R. PANCHAL(HC00171) on Tue Oct 22 2024 Downloaded on : Sat Oct 26 22:38:32 IST 2024 NEUTRAL CITATION R/CR.A/1301/2009 JUDGMENT DATED: 14/10/2024 undefined and also not appreciated the evidence in the form of dying declaration, panchnama etc. She has submitted that the trial Court has failed to appreciate the fact that the muddamal was recovered from the accused, therefore, the trial Court ought to have convict the accused for the charges levelled against them. .
12.1 In support of her submissions, Ms.Bhatt, learned Additional Public Prosecutor has relied upon the decision of the Hon'ble Supreme Court in the case of Laxman Vs. State of Maharashtra reported in (2002) 6 SCC 710 wherein the Hon'ble Supreme Court has observed that merely dying declaration recorded by the Executive Magistrate is not certified by the doctor or not having any endorsement with regard to the mental condition of the deponent, the dying declaration cannot be ignored with regard to acceptability of the dying declaration.
12.2 Ms.Bhatt, learned Additional Public Prosecutor has urged that the appeal deserves to be allowed and the impugned judgment and order of acquittal deserves to be quashed and set aside.
13. Mr.Shah, learned counsel appearing on behalf of the respondents - accused has submitted that the trial Court has not committed any error of facts and law in passing the impugned judgment and order of acquittal in favour of the accused. He has submitted that there is material contradiction in both the dying declaration recorded by the Investigating Officers with regard to the cause of death and with regard to the allegation of mental Page 8 of 29 Uploaded by V.R. PANCHAL(HC00171) on Tue Oct 22 2024 Downloaded on : Sat Oct 26 22:38:32 IST 2024 NEUTRAL CITATION R/CR.A/1301/2009 JUDGMENT DATED: 14/10/2024 undefined and physical torture. He has submitted that the dying declaration in the form of FIR at Exhibit 63 and the dying declaration at Exhibit 41 recorded by the P.W.11 there is material contradiction which goes to the route of the matter and, therefore, the trial Court has rightly passed the impugned judgment and order of acquittal. He has submitted that the marriage span of more than 19 years and out of the said wedlock, they have two children aged about 15 years and 12 years respectively and during 19 years there was not a single iota of evidence with regard to the allegation made in the dying declarations and no any complaint made by the deceased before any of the family members. He has submitted that the family members of the deceased i.e. brother sister and mother have not supported the case of the prosecution. He has submitted that if any ill-treatment or torture was given to the deceased then the said witnesses would not be declared as hostile and the mother of the deceased has no reason to give any false evidence since she lost her daughter and, therefore, the prosecution has failed to establish the case against the accused. He has submitted that there are serious allegations made against the P.W.2, P.W.3 and P.W.4 with regard to having bad eyes on the deceased and her daughter. He has submitted that the daughter of the deceased was examined as defence witness, who has deposed that since more than six years, she is residing with accused No.2 and she studied at Patan while stating that accused No.2 and they are having good relation with the deceased as well as D.W.1. He has submitted that the allegation made in the dying declaration against the Page 9 of 29 Uploaded by V.R. PANCHAL(HC00171) on Tue Oct 22 2024 Downloaded on : Sat Oct 26 22:38:32 IST 2024 NEUTRAL CITATION R/CR.A/1301/2009 JUDGMENT DATED: 14/10/2024 undefined accused and in the FIR in the form of the dying declaration is not in consonance with the depositions of the witnesses and, therefore, the trial Court has not committed any error of facts and law while passing the impugned judgment and order of acquittal. He has submitted that there was no any endorsement in the dying declaration recorded by the Executive Magistrate, and, the, dying declaration in the form of FIR with regard to the fact that whether the deceased is fit state of mind, whether she is able to give dying declaration since the Executive Magistrate has recorded the dying declaration in prescribed form wherein this printing form is containing the clause that the Executive Magistrate has evaluated the mental and physical condition of the deponent and, thereafter, recorded the declaration. He has submitted that there was no signature bearing in the dying declaration either of the witnesses or any doctor and, therefore, it suggests clear doubt created over the acceptability of the said evidence. He has submitted that from the bare perusal of the FSL report and the evidence of the FSL officer examined at Exhibit 10, nothing is come out against the accused. He has submitted that from the evidence of the concerned police officer, the prosecution has not able to prove the case against the accused since he has drawn the panchnama of the scene of offence after two days of the death of the deceased i.e. 28.06.2008 and from the evidence, the prosecution has not produced relevant material to prove the case against the accused or to connect the accused with the alleged offence. While referring to the panchnama at Exhibit 38, Mr.Shah, learned counsel has Page 10 of 29 Uploaded by V.R. PANCHAL(HC00171) on Tue Oct 22 2024 Downloaded on : Sat Oct 26 22:38:32 IST 2024 NEUTRAL CITATION R/CR.A/1301/2009 JUDGMENT DATED: 14/10/2024 undefined submitted that from the panchnama nothing is come out against the accused to connect with the alleged offence and, therefore, the trial Court has not committed any error of facts and law in passing the impugned judgment and order of acquittal. He has referred to the evidence of P.W. 8 - Dr.Bhaktibhai Varvabhai Prajapati and has submitted that this doctor has deposed in his deposition that on 26.07.2008 while he was on duty one police constable along with the police yadi, brought the deadbody of the deceased and this doctor has performed the postmortem of the deadbody of the deceased and the same was started from 9.30 and completed on 10.30. He has submitted that this doctor has stated that the deceased died due to septicemia. He has submitted that since the death is caused after almost 20 days of the incident, however, during 20 days, the Investigating Officer has not collected any further evidence and recorded the statements of the concerned persons and the story put forward by the prosecution creates doubt. He has submitted that the impugned judgment and order passed by the trial Court is in consonance with the facts of the case and in consonance with the settled legal principles pronounced by the Hon'ble Supreme Court and thus, the impugned judgment and order of acquittal is required to be confirmed and the appeal being meritless deserves to be dismissed.
13.1 In support of his submissions, Mr.Shah, learned counsel has relied upon the decision of the Hon'ble Supreme Court in the case of State of Rajasthan Vs. Kistoora Ram rendered in Page 11 of 29 Uploaded by V.R. PANCHAL(HC00171) on Tue Oct 22 2024 Downloaded on : Sat Oct 26 22:38:32 IST 2024 NEUTRAL CITATION R/CR.A/1301/2009 JUDGMENT DATED: 14/10/2024 undefined Criminal Appeal No. 2119 of 2010 dated 28.07.2022 wherein the Hon'ble Supreme Court has held and observed in para - 8 as under:-
"8. The scope of interference in an appeal against acquittal is very limited. Unless it is found that the view taken by the Court is impossible or perverse. It is not permissible to interfere with the finding of acquittal. Equally if two views are possible, it is not permissible to set aside an order of acquittal, merely because the Appellate Court finds the way of conviction to be more probable. The interference would be warranted only if the view taken is not possible at all."
14. Before deciding the the matter, the learned Additional Public Prosecutor appearing for the appellant - State of Gujarat and the learned counsel appearing for the respondents - accused have taken to this Court to the evidence recorded by the trial Court and the oral as well as documentary evidence and the investigating papers referred to and relied upon by the prosecution. After examining the same and after going through the depositions of the witnesses, the issues are required to be decided in the appeal that whether the trial Court is justified in passing the impugned judgment and order of acquittal against the accused or not; whether the trial Court has committed any illegality and irregularity or perversity while passing the impugned judgment and order of acquittal or not; whether the prosecution has proved the case against the accused for the offences punishable under Section 306, 498A, 114 of the Indian Penal Code beyond reasonable doubt or not. It is relevant to refer to the undisputed fact that the marriage span between the Page 12 of 29 Uploaded by V.R. PANCHAL(HC00171) on Tue Oct 22 2024 Downloaded on : Sat Oct 26 22:38:32 IST 2024 NEUTRAL CITATION R/CR.A/1301/2009 JUDGMENT DATED: 14/10/2024 undefined deceased and accused No.1 is more than 19 years and out of the said wedlock, they have two children i.e daughter namely Sonal @ Swati aged 15 years and son namely Hardik aged 12 years. The deceased along with husband and children residing separately at Village : Kundher for a distance of 10 kilometer away from the residence of accused No.2, 3 and 4 as they are residing at Patan. It is also an undisputed fact that during 19 years there was not a single incident occurred that the deceased left the house of accused No.1 on account of any ill-treatment or any mental or physical torture due to household quarrel. It is undisputed fact that the deceased who is plying car and was not present at the time of incident so there was no proximate reason immediate passed to lead the deceased for taking such harsh and extreme steps by committing suicide by pouring kerosene on herself. It is also undisputed fact that the daughter of the deceased namely Sonal @ Swati was staying at Patan along with the accused No.2 and studied in the school at Patan for more than six to seven years so only husband, wife and son were residing at Village: Kundher. It is also undisputed fact that the incident has taken place on 26.06.2008 and the deceased died on 16.07.2008, in between only two statements of the deceased i.e. FIR recorded by the ASI in the hospital and another one is dying declaration recorded by the Executive Magistrate. It appears that during 20 days, there was no other statement recorded or collected any material which suggests that the deceased having any physical or mental torture by the accused. In light of the above referred facts, the Court is examining the Page 13 of 29 Uploaded by V.R. PANCHAL(HC00171) on Tue Oct 22 2024 Downloaded on : Sat Oct 26 22:38:32 IST 2024 NEUTRAL CITATION R/CR.A/1301/2009 JUDGMENT DATED: 14/10/2024 undefined depositions of the witnesses wherein the Court has extraneously gone through the depositions of the witnesses and found that neither of the witnesses except two witnesses have supported the case of the prosecution and none of the panch witnesses has supported the case of the prosecution. On perusal of the evidence of the relatives of the deceased, it appears that none of the relatives have supported the case of the prosecution except the Executive Magistrate, who recorded the dying declaration of the deceased and the Investigating Officer, who recorded the FIR, has not supported the case of the prosecution. That during 20 days, the deceased has taken the treatment at different hospitals and the doctor who examined the deceased has not supported the case of the prosecution nor any relevant material culled out which led the trial Court to come to the conclusion that whether any other opinion to be formed or any other view of the matter except the view which is taken by the trial Court which is possible. After evaluating the evidence and recording the oral as well as documentary evidence regarding the deamoner of the witnesses, the trial Court is justified in passing the impugned judgment and order of acquittal. On perusal of the evidence of the Executive Magistrate, it appears that he has admitted in his cross-examination that there was interpolation in the dying declaration and also two different inks are used and for that he has no explanation and he is strict to the version that he has recorded the statement as per the deposition of the deponent herself which is contrary to the law. Looking to the contents of both the dying declarations and compering the same to each Page 14 of 29 Uploaded by V.R. PANCHAL(HC00171) on Tue Oct 22 2024 Downloaded on : Sat Oct 26 22:38:32 IST 2024 NEUTRAL CITATION R/CR.A/1301/2009 JUDGMENT DATED: 14/10/2024 undefined other, it reveals that there is material contradiction apparent on the face of value and for which, no any material has been collected by the Investigating Officer during the course of the investigation. In fact, the real daughter of the deceased has not supported the version of the deceased and even the mother of the deceased has also not supported the case of the prosecution in the nature of the allegations made in both the piece of evidence i.e. dying declarations. Therefore, it creates serious doubt about the story put forward by the prosecution. It is relevant to note that during 19 years of marriage span, there was not a single allegations made with regard to ill-treatment or mental or physical torture to the deceased by any of the accused and no any complaint has been made by the deceased to her brother, mother, sisters. Though the deceased died after about almost 20 days of the incident, during this period, there are all possibility to meet near relatives, children, but in that period, in not a single occasion, the deceased has stated anything to those witnesses and, therefore, the view taken by the trial Court is just and proper and, therefore, no illegality and perversity is found in the impugned judgment and order of acquittal. It is hereby noted that so far as the ratio laid down by the Hon'ble Supreme Court in the case of Laxman (supra) is concerned, there is no other opinion with regard to the acceptability of the dying declaration as a valid and true evidence. In the present case, in none of the dying declaration, the prosecution has established that both the witnesses have not taken care to get endorsement of the doctor nor the doctor has deposed that he has concealed with regard to Page 15 of 29 Uploaded by V.R. PANCHAL(HC00171) on Tue Oct 22 2024 Downloaded on : Sat Oct 26 22:38:32 IST 2024 NEUTRAL CITATION R/CR.A/1301/2009 JUDGMENT DATED: 14/10/2024 undefined the mental and physical condition of the patient. Though the doctor was available, the police witnesses have deposed that the concerned witnesses have not consulted with the doctor at the time of recording the statement of the deceased in the nature of dying declaration. Therefore, the decision of the Hon'ble Supreme Court referred to and relied upon by the learned Additional Public Prosecutor is not helpful to the facts of the present case. In fact, the ratio laid down by the Hon'ble Apex Court that in case of different dying declaration, the acceptability of dying declaration as evidence is required to be proved beyond reasonable doubt by the prosecution, however, the same has not been done in the present case.
15. In case of Irfan alias Naka Vs. State of Uttar Pradesh reported in AIR 2023 SC 4129, the Hon'ble Supreme Court has, while dealing general principles, observed in para - 62 as under:-
"62. There is no hard and fast rule for determining when a dying declaration should be accepted; the duty of the Court is to decide this question in the facts and surrounding circumstances of the case and be fully convinced of the truthfulness of the same. Certain factors below reproduced can be considered to determine the same, however, they will only affect the weight of the dying declaration and not its admissibility: -
(i) Whether the person making the statement was in expectation of death?
(ii) Whether the dying declaration was made at the earliest opportunity? "Rule of First Opportunity"
(iii) Whether there is any reasonable suspicion to believe the dying declaration was put in the mouth of the dying person?
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(iv) Whether the dying declaration was a product of prompting, tutoring or leading at the instance of police or any interested party?
(v) Whether the statement was not recorded properly?
(vi) Whether, the dying declarant had opportunity to clearly observe the incident?
(vii) Whether, the dying declaration has been consistent throughout?
(viii) Whether, the dying declaration in itself is a manifestation / fiction of the dying persons imagination of what he thinks transpired?
(ix) Whether, the dying declaration was itself voluntary?
(x) In case of multiple dying declarations, whether, the first one inspires truth and consistent with the other dying declaration?
(xi) Whether, as per the injuries, it would have been impossible for the deceased to make a dying declaration?"
16. In the case of Rajaram Vs. State of Madhya Pradesh and others reported in AIR 2023 SC 94, the Division Bench of this Court has decided the issue with regard to the multiple dying declaration and in the case of Pawan Kumar Vs. State Of Himachal Pradesh reported in (2017) 7 SCC 780, the Hon'ble Supreme Court has held that a certificate of fitness is not the requirement of law. That there cannot be an absolute rule that a person who has suffered 80% burn injuries cannot give a dying declaration. The person is said to have instigated to another person who has a supportive to an act by any means direct or indirect whether it takes the form of express conciliation or solely simultaneous or encouragement instigation may be words or Page 17 of 29 Uploaded by V.R. PANCHAL(HC00171) on Tue Oct 22 2024 Downloaded on : Sat Oct 26 22:38:32 IST 2024 NEUTRAL CITATION R/CR.A/1301/2009 JUDGMENT DATED: 14/10/2024 undefined may be in conduct. In the present case, there is no any material on record which suggests that there is an instigation on behalf of the accused No.2, 3 and 4 to deceased to commit the suicide. In the case of Rajendra S/o. Ramdas Kolhe Vs. State of Maharashtra reported AIR 2024 SC 2682 the Hon'ble Supreme Court has held and observed in paras - 25 to 29 as under:-
"25. The law relating to dying declaration is now well settled. Once a dying declaration is found to be authentic inspiring confidence of the court, then the same can be relied upon and can be the sole basis for conviction without any corroboration. However, before accepting such a dying declaration, court must be satisfied that it was rendered voluntarily, it is consistent and credible and that it is devoid of any tutoring. Once such a conclusion is reached, a great deal of sanctity is attached to a dying declaration and as said earlier, it can form the sole basis for conviction.
26. Section 32(1) of the Indian Evidence Act, 1872 deals with dying declaration. Since the said provision is relevant, it is extracted hereunder:
[32.] Cases in which statement of relevant fact by person who is dead or cannot be found, etc., is relevant. - Statements, written or verbal, of relevant facts made by a person who is dead, or who cannot be found, or who has become incapable of giving evidence, or whose attendance cannot be procured without an amount of delay or expense which, under the circumstances of the case, appears to the Court unreasonable, are themselves relevant facts in the following cases:-
(1) When it relates to cause of death. - When the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person's death comes into question.
Such statements are relevant whether the person who made them was or was not, at the time when they were Page 18 of 29 Uploaded by V.R. PANCHAL(HC00171) on Tue Oct 22 2024 Downloaded on : Sat Oct 26 22:38:32 IST 2024 NEUTRAL CITATION R/CR.A/1301/2009 JUDGMENT DATED: 14/10/2024 undefined made, under expectation of death, and whatever may be the nature of the proceeding in which the cause of his death comes into question.
26.1 . Section 32 says that statements made by a person who is dead or who cannot be found etc., be it in written form or oral, are themselves relevant facts. As per situation(1), when the relevant facts relate to the cause of death, such a statement would be relevant whether the person who made it was or was not at the time of making the statement under expectation of death. Such a statement would be relevant whatever may be the nature of the proceedings in which the cause of his death comes into question. The relevancy is not confined to the cause of his death but also to the circumstances of the transaction which resulted in his death.
27. In Khushal Rao vs. State of Bombay, AIR 1958 SC 22 this Court examined the principles governing acceptance of dying declaration. After examining the relevant provisions of the Evidence Act and various judicial pronouncements, this Court laid down the following conclusions:
(i) 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;
(ii) each case must be determined on its own facts, keeping in view the circumstances in which the dying declaration was made;
(iii) it cannot be laid down as a general proposition that a dying declaration is a weaker kind of evidence than other pieces of evidence;
(iv) a dying declaration stands on the same footing as another piece of evidence. It has to be judged in the light of surrounding circumstances and with reference to the principles governing weighing of evidence;
(v) a dying declaration which has been recorded by a competent Magistrate in the proper manner 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;Page 19 of 29 Uploaded by V.R. PANCHAL(HC00171) on Tue Oct 22 2024 Downloaded on : Sat Oct 26 22:38:32 IST 2024
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(vi) in order to test the reliability of a dying declaration, the court has to keep in view various circumstances including the condition of the person concerned to make such a statement; that it has been made at the earliest opportunity and was not the result of tutoring by interested parties.
28. The above conclusions were reiterated by this Court in Paniben (Smt.) vs. State of Gujarat, (1992) 2 SCC 474 . This Court declared that there is neither any rule of law nor of prudence that a dying declaration cannot be acted upon without corroboration. However, the court has to scrutinize the dying declaration carefully and must ensure that the declaration is not the result of tutoring, prompting or imagination; the deceased should be in a fit and proper state to make the declaration. But once the court is satisfied that the dying declaration is true and voluntary, it can base conviction on it without corroboration.
29. This Court highlighted the significance of a dying declaration in Kundula Bala Subrahmanyam vs. State of Andhra Pradesh, (1993) 2 SCC 684 . The general rule is that hearsay evidence is not admissible. Unless the evidence tendered is tested by crossexamination, it is not creditworthy. However, Section 32(1) of the Evidence Act is an exception to this general rule. This Court observed as under:
18. * * * * * A dying declaration made by person on the verge of his death has a special sanctity as at that solemn moment, a person is most unlikely to make any untrue statement.
The shadow of impending death is by itself the guarantee of the truth of the statement made by the deceased regarding the causes or circumstances leading to his death. A dying declaration, therefore, enjoys almost a sacrosanct status, as a piece of evidence, coming as it does from the mouth of the deceased victim. Once the statement of the dying person and the evidence of the witnesses testifying to the same passes the test of careful scrutiny of the courts, it becomes a very important and a reliable piece of evidence and if the court is satisfied that the dying declaration is true and free from any embellishment such a dying declaration, by itself, can be sufficient for recording conviction even without looking for Page 20 of 29 Uploaded by V.R. PANCHAL(HC00171) on Tue Oct 22 2024 Downloaded on : Sat Oct 26 22:38:32 IST 2024 NEUTRAL CITATION R/CR.A/1301/2009 JUDGMENT DATED: 14/10/2024 undefined any corroboration. * * * * *"
17. It is worthwhile to refer to the decision of the Hon'ble Supreme Court in the case of Chandrappa and others Vs. State of Karnataka reported in (2007) 4 SCC 415. The relevant paragraph of the decision of the Hon'ble Supreme Court in the case of Chandrappa (supra) reads as under:-
"The following general principles regarding powers of appellate Court while dealing with an appeal against an order of acquittal emerge;
(1) An appellate Court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded;
(2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate Court on the evidence before it may reach its own conclusion, both on questions of fact and of law;
(3) Various expressions, such as, 'substantial and compelling reasons', 'good and sufficient grounds', 'very strong circumstances', 'distorted conclusions', 'glaring mistakes', etc. are not intended to curtail extensive powers of an appellate Court in an appeal against acquittal. Such phraseologies are more in the nature of 'flourishes of language' to emphasize the reluctance of an appellate Court to interfere with acquittal than to curtail the power of the Court to review the evidence and to come to its own conclusion.
(4) An appellate Court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court.Page 21 of 29 Uploaded by V.R. PANCHAL(HC00171) on Tue Oct 22 2024 Downloaded on : Sat Oct 26 22:38:32 IST 2024
NEUTRAL CITATION R/CR.A/1301/2009 JUDGMENT DATED: 14/10/2024 undefined (5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court."
18. It is also worthwhile to refer to the decision of the Hon'ble Supreme Court in the case of Rajesh Prasad Vs. State of Bihar and another reported in (2022) 3 SCC 471. The Hon'ble Supreme Court in the said decisions has held and observed in paragraphs No.22 to 30 as under:-
"22. In Atley vs. State of U.P., AIR 1955 SC 807, the approach of the appellate court while considering a judgment of acquittal was discussed and it was observed that unless the appellate court comes to the conclusion that the judgment of the acquittal was perverse, it could not set aside the same. To a similar effect are the following observations of this Court speaking through Subba Rao J., (as His Lordship then was) in Sanwat Singh vs. State of Rajasthan, AIR 1961 SC 715 (Sanwat Singh case, AIR pp 719-20 para 9):
"9. The foregoing discussion yields the following results: (1) an appellate court has full power to review the evidence upon which the order of acquittal is founded; (2) the principles laid down in Sheo Swarup case afford a correct guide for the appellate court's approach to a case disposing of such an appeal; and (3) the different phraseology used in the judgments of this Court, such as,
(i) 'substantial and compelling reasons', (ii) 'good and sufficiently cogent reasons', and (iii) 'strong reasons' are not intended to curtail the undoubted power of an appellate court in an appeal against acquittal to review the entire evidence and to come to its own conclusion; but in doing so it should not only consider every matter on record having a bearing on the questions of fact and the reasons given by the court below in support of its order of acquittal in its arriving at a conclusion on those facts, but should also express those reasons in its judgment, which lead it to hold that the acquittal was not justified."
The need for the aforesaid observations arose on account of observations of the majority in Aher Raja Khimavs. State Page 22 of 29 Uploaded by V.R. PANCHAL(HC00171) on Tue Oct 22 2024 Downloaded on : Sat Oct 26 22:38:32 IST 2024 NEUTRAL CITATION R/CR.A/1301/2009 JUDGMENT DATED: 14/10/2024 undefined of Saurashtra, AIR 1956 SC 217 which stated that for the High Court to take a different view on the evidence "there must also be substantial and compelling reasons for holding that the trial court was wrong."
23. M.G. Agarwal vs. State of Maharashtra, AIR 1963 SC 200 is the judgment of the Constitution Bench of this Court, speaking through Gajendragadkar, J. (as His Lordship then was). This Court observed that the approach of the High Court (appellate court) in dealing with an appeal against acquittal ought to be cautious because the presumption of innocence in favour of the accused "is not certainly weakened by the fact that he has been acquitted at his trial."
24. In Shivaji Sahabrao Bobade vs. State of Maharashtra, (1973) 2 SCC 793, Krishna Iyer, J., observed as follows:
(SCC p.799, para 6) "6......In short, our jurisprudential enthusiasm for presumed innocence must be moderated by the pragmatic need to make criminal justice potent and realistic. A balance has to be struck between chasing chance possibilities as good enough to set the delinquent free and chopping the logic of preponderant probability to punish marginal innocents."
25. This Court in Ramesh Babulal Doshi vs. State of Gujarat, (1996) 9 SCC 225, spoke about the approach of the appellate court while considering an appeal against an order acquitting the accused and stated as follows: (SCC p.229, para 7) "7.....While sitting in judgment over an acquittal the appellate court is first required to seek an answer to the question whether the findings of the trial court are palpably wrong, manifestly erroneous or demonstrably unsustainable. If the appellate court answers the above question in the negative the order of acquittal is not to be disturbed. Conversely, if the appellate court holds, for reasons to be recorded, that the order of acquittal cannot at all be sustained in view of any of the above infirmities it can then-and then only- reappraise the evidence to arrive at its own conclusions."
The object and the purpose of the aforesaid approach is to ensure that there is no miscarriage of justice. In another words, there should not be an acquittal of the guilty or a Page 23 of 29 Uploaded by V.R. PANCHAL(HC00171) on Tue Oct 22 2024 Downloaded on : Sat Oct 26 22:38:32 IST 2024 NEUTRAL CITATION R/CR.A/1301/2009 JUDGMENT DATED: 14/10/2024 undefined conviction of an innocent person.
26. In Ajit Savant Majagvai vs. State of Karnataka, (1997) 7 SCC 110, this Court set out the following principles that would regulate and govern the hearing of an appeal by the High Court against an order of acquittal passed by the Trial Court: (SCC pp. 116-17, para 16) "16. This Court has thus explicitly and clearly laid down the principles which would govern and regulate the hearing of appeal by the High Court against an order of acquittal passed by the trial court. These principles have been set out in innumerable cases and may be reiterated as under:
(1) In an appeal against an order of acquittal, the High Court possesses all the powers, and nothing less than the powers it possesses while hearing an appeal against an order of conviction.
(2) The High Court has the power to reconsider the whole issue, reappraise the evidence and come to its own conclusion and findings in place of the findings recorded by the trial court, if the said findings are against the weight of the evidence on record, or in other words, perverse.
(3) Before reversing the finding of acquittal, the High Court has to consider each ground on which the order of acquittal was based and to record its own reasons for not accepting those grounds and not subscribing to the view expressed by the trial court that the accused is entitled to acquittal.
(4) In reversing the finding of acquittal, the High Court has to keep in view the fact that the presumption of innocence is still available in favour of the accused and the same stands fortified and strengthened by the order of acquittal passed in his favour by the trial court.
(5) If the High Court, on a fresh scrutiny and reappraisal of the evidence and other material on record, is of the opinion that there is another view which can be reasonably taken, then the view which favours the accused should be adopted.
(6) The High Court has also to keep in mind that the trial court had the advantage of looking at the demeanour of witnesses and observing their conduct in the Court Page 24 of 29 Uploaded by V.R. PANCHAL(HC00171) on Tue Oct 22 2024 Downloaded on : Sat Oct 26 22:38:32 IST 2024 NEUTRAL CITATION R/CR.A/1301/2009 JUDGMENT DATED: 14/10/2024 undefined especially in the witness box.
(7) The High Court has also to keep in mind that even at that stage, the accused was entitled to benefit of doubt.
The doubt should be such as a reasonable person would honestly and conscientiously entertain as to the guilt of the accused."
27. This Court in Ramesh Babulal Doshi vs. State of Gujarat, (1996) 9 SCC 225 observed vis--vis the powers of an appellate court while dealing with a judgment of acquittal, as under: (SCC p.229, para 7)) "7.... While sitting in judgment over an acquittal the appellate court is first required to seek an answer to the question whether the findings of the trial court are palpably wrong, manifestly erroneous or demonstrably unsustainable. If the appellate court answers the above question in the negative the order of acquittal is not to be disturbed. Conversely, if the appellate court holds, for reasons to be recorded, that the order of acquittal cannot at all be sustained in view of any of the above infirmities it can then-and then only-reappraise the evidence to arrive at its own conclusions."
28. This Court in Chandrappa & Ors. vs. State of Karnataka, (2007) 4 SCC 415, highlighted that there is one significant difference in exercising power while hearing an appeal against acquittal by the appellate court. The appellate court would not interfere where the judgment impugned is based on evidence and the view taken was reasonable and plausible. This is because the appellate court will determine the fact that there is presumption in favour of the accused and the accused is entitled to get the benefit of doubt but if it decides to interfere it should assign reasons for differing with the decision of acquittal.
30. In Nepal Singh vs. State of Haryana- (2009) 12 SCC 351, this Court reversed the judgment of the High Court which had set aside the judgment of acquittal pronounced by the trial court and restored the judgment of the trial court acquitting the accused on reappreciation of the evidence.
19. It is also worthwhile to refer to the decision of the Hon'ble Page 25 of 29 Uploaded by V.R. PANCHAL(HC00171) on Tue Oct 22 2024 Downloaded on : Sat Oct 26 22:38:32 IST 2024 NEUTRAL CITATION R/CR.A/1301/2009 JUDGMENT DATED: 14/10/2024 undefined Supreme Court in the case of Babu Sahebagouda Rudragoudar Vs. State of Karnataka reported in AIR 2024 SC 2252 = (2024) 8 SCC 149 wherein the Hon'ble Supreme Court has held and observed in paras - 37 to 40 as under:-
37. This Court in the case of Rajesh Prasad v. State of Bihar and Another, (2022) 3 SCC 471 encapsulated the legal position covering the field after considering various earlier judgments and held as below: -
"29. After referring to a catena of judgments, this Court culled out the following general principles regarding the powers of the appellate court while dealing with an appeal against an order of acquittal in the following words: (Chandrappa case [ Chandrappa v. State of Karnataka, (2007) 4 SCC 415 ] " 42. From the above decisions, in our considered view, the following general principles regarding powers of the appellate court while dealing with an appeal against an order of acquittal emerge:
(1) An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded.
(2) The Criminal Procedure Code, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law.
(3) Various expressions, such as, "substantial and compelling reasons", "good and sufficient grounds", "very strong circumstances", "distorted conclusions", "glaring mistakes", etc. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal.
Such phraseologies are more in the nature of "flourishes of language" to emphasise the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion.
(4) An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of Page 26 of 29 Uploaded by V.R. PANCHAL(HC00171) on Tue Oct 22 2024 Downloaded on : Sat Oct 26 22:38:32 IST 2024 NEUTRAL CITATION R/CR.A/1301/2009 JUDGMENT DATED: 14/10/2024 undefined the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court.
(5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court."
38. Further, in the case of H.D. Sundara & Ors. v. State of Karnataka, (2023) 9 SCC 581 this Court summarized the principles governing the exercise of appellate jurisdiction while dealing with an appeal against acquittal under Section 378 of CrPC as follows: -
"8.1.The acquittal of the accused further strengthens the presumption of innocence;
8.2. The appellate court, while hearing an appeal against acquittal, is entitled to reappreciate the oral and documentary evidence;
8.3. The appellate court, while deciding an appeal against acquittal, after re-appreciating the evidence, is required to consider whether the view taken by the trial court is a possible view which could have been taken on the basis of the evidence on record;
8.4. If the view taken is a possible view, the appellate court cannot overturn the order of acquittal on the ground that another view was also possible; and 8.5. The appellate court can interfere with the order of acquittal only if it comes to a finding that the only conclusion which can be recorded on the basis of the evidence on record was that the guilt of the accused was proved beyond a reasonable doubt and no other conclusion was possible."
39. Thus, it is beyond the pale of doubt that the scope of interference by an appellate Court for reversing the judgment of acquittal recorded by the trial Court in favour of the accused has to be exercised within the four corners Page 27 of 29 Uploaded by V.R. PANCHAL(HC00171) on Tue Oct 22 2024 Downloaded on : Sat Oct 26 22:38:32 IST 2024 NEUTRAL CITATION R/CR.A/1301/2009 JUDGMENT DATED: 14/10/2024 undefined of the following principles:-
(a) That the judgment of acquittal suffers from patent perversity;
(b) That the same is based on a misreading/omission to consider material evidence on record;
(c) That no two reasonable views are possible and only the view consistent with the guilt of the accused is possible from the evidence available on record.
40. The appellate Court, in order to interfere with the judgment of acquittal would have to record pertinent findings on the above factors if it is inclined to reverse the judgment of acquittal rendered by the trial Court.
20. Under these circumstances, both the evidence i.e. dying declaration at Exhibit 41 and 63 are created serious doubt and, therefore the view taken by the trial Court is in consonance with the settled principle of law.
21. On consideration of entire evidence on record, it clearly transpires that the prosecution has miserably failed to prove the charges levelled against the accused beyond reasonable doubt. The trial Court has appreciated the entire evidence by threadbare and has given cogent and convincing reasons for not believing the case of the prosecution regarding various dying declaration of the deceased and has properly acquitted the accused from the charges levelled against them. The impugned judgment and order of acquittal is sustainable on factual as well as legal aspects.
22. In view of the evidence on record, it is clearly found that Page 28 of 29 Uploaded by V.R. PANCHAL(HC00171) on Tue Oct 22 2024 Downloaded on : Sat Oct 26 22:38:32 IST 2024 NEUTRAL CITATION R/CR.A/1301/2009 JUDGMENT DATED: 14/10/2024 undefined the trial Court has minutely examined the evidence and has properly appreciated the evidence on record and also not committed any error of fact and law in acquitting the accused for the charges levelled against them.
23. In the result, the appeal fails and accordingly it is dismissed. The impugned judgment and order of acquittal passed by the trial Court is hereby confirmed. Bail bond stands cancelled. Record and proceedings be sent back to the concerned Trial Court forthwith.
(HEMANT M. PRACHCHHAK,J) V.R. PANCHAL Page 29 of 29 Uploaded by V.R. PANCHAL(HC00171) on Tue Oct 22 2024 Downloaded on : Sat Oct 26 22:38:32 IST 2024