Gujarat High Court
Patel Maheshkumar Bhikhabhai vs State Of Gujarat & ... on 20 June, 2014
Author: Bhaskar Bhattacharya
Bench: Bhaskar Bhattacharya, J.B.Pardiwala
R/CR.A/857/2000 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL APPEAL NO. 857 of 2000
FOR APPROVAL AND SIGNATURE:
HONOURABLE THE CHIEF JUSTICE MR. BHASKAR BHATTACHARYA
and
HONOURABLE MR.JUSTICE J.B.PARDIWALA
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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 ?
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PATEL MAHESHKUMAR BHIKHABHAI....Appellant(s)
Versus
STATE OF GUJARAT & 1....Opponent(s)/Respondent(s)
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Appearance:
MR AJ SHASTRI, ADVOCATE for the Appellant(s) No. 1 - 2
MS. CHETNA SHAH, ADDL.PUBLIC PROSECUTOR for the Opponent(s)/Respondent(s) No. 1
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CORAM: HONOURABLE THE CHIEF JUSTICE MR.
BHASKAR BHATTACHARYA
and
HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date :20/06/2014
CAV JUDGMENT
(PER : HONOURABLE MR.JUSTICE J.B.PARDIWALA) Page 1 of 36 R/CR.A/857/2000 CAV JUDGMENT
1. The present Appeal is at the instance of two convicted persons of the offence under Section 302 r/w Section 34 of the Indian Penal Code and is directed against the order of conviction and sentence dated 5th July, 2000, passed by the Additional Sessions Judge, Mehsana in Sessions Case no.192 of 1999. By the aforesaid order the learned Additional Sessions Judge, Mehsana found the appellants guilty of the offence under Sec.302 read with Section 34 of the Indian Penal Code and consequently, sentenced them to suffer life imprisonment with fine of Rs.2,000/- each with a further stipulation that in default of payment of fine, the appellants shall undergo further simple imprisonment for a period of 10 days.
2. Case of the Prosecution :
2.1 The deceased, namely, Arunaben was married to the accused no.1 namely, Maheshbhai Bhikhabhai past about 18 years from the date of the incident. In the wedlock no child was born due to which the accused no.1 decided to get married with one other lady, namely, Malika Rasikbhai Darji i.e. the appellant no.2. It is the case of the prosecution that the accused no.1 started residing with Malika, the accused no.2 from 14/1/1999 much against the wishes of the deceased. No sooner had the accused no.1 got married with Malika, than the accused no.1, the mother-in-law of the deceased (original accused no.2 acquitted) and Malika started causing mental and physical harassment to the deceased. On the date of the incident i.e. 27/2/1999 at around 10.30 in the night, while everyone was preparing to go to sleep, the accused no.1 told the deceased to go to sleep outside the room. The deceased felt bad and humiliated. The deceased refused to go outside Page 2 of 36 R/CR.A/857/2000 CAV JUDGMENT and sleep, as a result the deceased was beaten by the accused no.1 and the mother-in-law of the deceased who was sleeping on the first floor of the house. It is also the case of the prosecution that at that point of time the accused persons told the deceased to die and saying so the accused no.1 is alleged to have poured kerosene from a stove on the body of the deceased and set her on fire by striking a matchstick. It is also the case of the prosecution that no sooner had the deceased started burning than she raised hue and cry due to which the persons residing in the neighbourhood came running at the place of incident and extinguished the fire by covering the body of the deceased with a quilt. The husband i.e. the accused no.1 thereafter called for the ambulance and took the deceased to the hospital for treatment. After giving some preliminary treatment at the Gozariya Government Hospital, the deceased was shifted to a hospital by name Arihant situated at Ahmedabad on the same night at around 4 O'clock in the early hours of 28th February, 1999.
2.2 It appears from the record that the deceased herself lodged a First Information Report, Exh.43, at the hospital. In the First Information Report, Exh.43, the deceased stated that the accused no.1 Maheshbhai Bhikhabhai was her husband and they were married past 18 years. However in the wedlock the deceased was unable to conceive as a result her husband brought another lady by name Malika and started residing with Malika like husband and wife. The deceased further stated in the FIR that much against her wishes, her husband brought Malika at home on 14th January,1999 and from that day onwards the husband, the mother of the husband and Malika started causing lot of mental and physical cruelty towards her.Page 3 of 36 R/CR.A/857/2000 CAV JUDGMENT
The deceased has further stated that on 27th February, 1999 while she was at home, at that time at around 10.30 in the night her husband i.e. the accused no.1 came from outside and requested Malika to serve food to him. After having food while the accused no.1 was preparing to go to sleep, he asked the deceased to go outside and sleep. The deceased refused to sleep outside, as a result, she was beaten by her husband. The mother-in-law of the deceased who was sleeping on the first floor was also called and she also joined the accused no.1 in beating the deceased. She has further stated that Malika also started beating her. It has been further stated in the first information report that thereafter the accused no.1 asked the deceased to die. In the mean time, the accused no.1 poured kerosene from a stove on the body of the deceased and set her on fire by striking a matchstick. The deceased raised hue and cry for help and hearing her shouts, the neighbours came rushing at the spot of occurrence and extinguished the fire by covering the body with a quilt. In the FIR it is further stated that thereafter, her husband called for the ambulance and shifted her to the hospital for treatment.
3. On the complaint being lodged by the deceased, the investigation had commenced. On 28 th February, 1999 the Dying Declaration, Exh.19 was recorded by the Executive Magistrate. In the dying declaration Exh.19, the deceased reiterated the same version as narrated by her in the first information report Exh.43. On the next day i.e. 1 st March, 1999 the deceased succumbed to the injuries in the hospital. The dead body of the deceased was sent for postmortem and the postmortem report Exh.17 noted that the cause of death was due to shock as a result of extensive burns all over the body.
Page 4 of 36 R/CR.A/857/2000 CAV JUDGMENTThe inquest panchnama of the dead body Exh.29 was drawn in presence of the two panch witnesses. The Panchnama of the place of occurrence Exh.27 was drawn by a Forensic Science Officer in presence of the two panch witnesses. The Medical Certificate Exh.13 issued by Arihant Burns and Plastic Surgery Hospital, Ahmedabad was collected by the Investigating Officer. The other case papers Exh.15 of Arihant Burns and Plastic Surgery Hospital, Ahmedabad were also collected by the Investigating Officer. The accused persons were arrested and their arrest Panchnamas - Exhs. 28 and 30 respectively were drawn in presence of the two panch witnesses. Finally, at the end of the investigation, the charge-sheet was filed against the accused-appellants herein and the mother-in-law of the deceased in the Court of the Judicial Magistrate, First Class, Vijapur.
4. As the case was exclusively triable by the Sessions Court, the J.M.F.C, Vijapur committed the case to the Court of Sessions under Sec.209 of Cr.P.C. The Trial Court framed charge Exh.7 against the accused persons for the offence punishable under Section 302 r/w Sec. 34 of the Indian Penal Code and the statements of the accused persons were recorded. The accused persons did not admit the charge and claimed to be tried.
5. The prosecution examined the following witnesses in support of the prosecution case.
P.W.1 Dr. Nitinbhai Dhanjibhai Shah. Exh.12 P.W.2 Dr.Rajeshbhai Shripadi Shukla. Exh.16 Page 5 of 36 R/CR.A/857/2000 CAV JUDGMENT P.W.3 Mr.Sureshchandra Vasudev Dixit. Exh.18 P.W.4 Dhananjay Maganbhai Patel Exh.22 (Scientific Officer) P.W.5 Himatbhai Somnath Patel. Exh.25 P.W.6 Ashokbhai Naranbhai Patel Exh.36 P.W.7 Kamleshbhai Amrutbhai Patel. Exh.37 P.W.8 Vishnubhai Keshavlal Patel. Exh.39 P.W.9 Prahladbhai Bapudas Patel. Exh.40 P.W.10 Mavjibhai Jivabhai Ansari -PSI Exh.42 P.W.11 Karansinh Gulabsinh -PSO Exh.45 P.W.12 Rupsinh Badsangji -PSO, Vasai Exh.47 P.W.13 Navinchandra Ishwarlal Raval-PSI Exh.48
6. The following pieces of documentary evidences were adduced by the prosecution.
1) Certificate of Arihant Burns and Plastic Surgery Hospital, Ahmedabad. Exh.13
2) Case papers of Arihant Burns and Plastic Surgery Hospital, Ahmedabad. Exh.14
3) Postmortem report. Exh.17
4) Dying Declaration taken by the Executive Magistrate. Exh.19
5) Yadi sent by PSI, Naranpura Police Station to take dying declaration.
Exh.20
6) Dying declaration (carbon copy) Exh.21 Page 6 of 36 R/CR.A/857/2000 CAV JUDGMENT
7) Muddamal seized by FSL Officer. Exh.23
8) Wireless message. Exh.24
9) Depute Order Exh.26
10) Panchnama of Place of occurrence Drawn by Scientific Officer. Exh.27
11) Panchnama of physical conditions of Accused nos.2 and 3. Exh.28
12) Inquest Panchnama. Exh.29
13) Panchnama of physical conditions of Accused no.1. Exh.30
14) Panchnama of clothes produced by Accused no.1. Exh.31
15) Muddamal dispatch entry. Exh.32
16) Muddamal dispatch entry. Exh.33
17) Receipt in token of receiving muddamal. Exh.34
18) Analysis report of F.S.L. Exh.35
19) Panchnama of Place of occurrence. Exh.41
20) Complaint (Arunaben Maheshbhai Patel) Exh.43
21) Abstract of Vardhi from Arihant Hospital Exh.44
22) List of papers forwarded to Vasai Police Station by Naranpura Police Station. Exh.46
23) Transfer warrant of Accused no.1. Exh.49
24) Arrest Memo of accused. Exh.50
7. After completion of the oral as well as documentary evidence of the prosecution, the statements of the accused Page 7 of 36 R/CR.A/857/2000 CAV JUDGMENT persons under Section 313 of the Cr.P.C. were recorded in which the accused persons stated that the complaint was a false one and they were innocent.
8. At the conclusion of the trial, the learned Trial Judge convicted the original accused no.1 i.e. the husband of the deceased and the original accused no.3 i.e. the second wife of the original accused no.1 under section 302 read with sec.34 of the Indian Penal Code and sentenced them as stated herein before. However, the learned Trial Judge acquitted the original accused no.2 i.e. the mother-in-law of the deceased of the offence of murder.
9. Being dissatisfied, the accused appellants have come up with the present appeal.
10. Contentions on behalf of the accused-appellants:
Mr. Ashutosh Shastri, the learned advocate appearing for the accused appellants, vehemently submitted that the trial judge committed a serious error in convicting the accused persons of the offence of murder by placing implicit reliance on the two dying declarations of the deceased i.e. the first information report, Exh.43 and the dying declaration Exh.19 recorded by the Executive Magistrate.
Mr.Shastri submitted that at the time of the admission of the deceased in the hospital, the Doctor had noted that there were 98% burns all over the body. Mr.Shastri submits that there is no cogent and reliable evidence as regards the condition of the deceased, more particularly her mental state Page 8 of 36 R/CR.A/857/2000 CAV JUDGMENT of mind so as to arrive at a definite conclusion that the deceased was fit enough to make a dying declaration, first before the Investigating Officer and thereafter before the Executive Magistrate. Mr.Shastri submits that the case at hand is one of suicide and not murder. According to Mr.Shastri, the oral evidence of the P.W.5 Himmatbhai Patel, Exh.25 establishes beyond any pale of doubt that the deceased had set herself on fire in the Veranda of the house while the other family members i.e. the accused persons were locked in the house from outside. Mr.Shastri would submit that the evidence of the P.W.5 Himmatbhai Patel who is a neighbuor residing in the same locality, further establishes that the door had to be broken open and it is only after the door was broken open, that the accused persons herein and the mother-in-law of the deceased were able to come outside in the Veranda.
Mr.Shastri submits that the scene of offence Panchnama also indicates that the latch of the door was damaged suggesting that the force had to be exerted for the purpose of breaking open the door. The stopper of the door was also found to be twisted and damaged.
Mr.Shastri submits that the deceased might have felt extremely bad and humiliated when her husband i.e. the accused no.1 asked her to go outside and sleep. According to Mr.Shastri the deceased unable to bear the insult and humiliation, took the extreme step of committing suicide by pouring kerosene on her body and thereafter set herself ablaze.
Mr.Shastri would submit that once the possibility of Page 9 of 36 R/CR.A/857/2000 CAV JUDGMENT suicide cannot be ruled-out then in such circumstances, the benefit of doubt must go in favour of the accused persons. Mr.Shastri, in the circumstances referred to above, submits that the appeal merits consideration and the same may be allowed by setting aside the order of conviction and sentence.
11. Contentions on behalf of the State :
Ms. Chetna Shah, the learned Addl. Public Prosecutor appearing for the State has vehemently opposed this appeal. Miss Shah submits that the Trial Court committed no error not to speak of any error of law in holding the accused persons guilty of the offence of murder by placing reliance on the two dying declarations of the deceased, Exh.19 and Exh.43. Ms Shah submits that there is no reason worth the name to disbelieve the two dying declarations. Ms Shah submits that the evidence of the doctor who had treated the deceased in his hospital for two days makes it very clear that the deceased all through-out was cooperative and in a fit state of mind to make such dying declarations. According to Ms Shah there is no reason to disbelieve the evidence of the doctor so far as the condition of the deceased at the time of making the two dying declarations is concerned.
In such circumstances Miss Shah submits that there being no merit in this appeal, the same deserves to be dismissed.
12. Oral evidence on record :
A) P.W.1 Dr. Nitinbhai Dhanjibhai Shah - Exh.12.Page 10 of 36 R/CR.A/857/2000 CAV JUDGMENT
The P.W.1 in his evidence has deposed that he has a Private Hospital at Vadaj. On 28 th February,1999 at 4 O'clock in the early morning Arunaben Maheshbhai Patel, a resident of Suthar Vas, Gozariya was brought for treatment at his hospital. He has deposed that Arunaben had sustained 98% burns on her body. He has deposed that Arunaben was admitted as an indoor patient in the hospital and immediately her treatment had started. On 1st March, 1999 at around 5.04 hours in the evening Arunaben succumbed to the burn injuries. He has deposed that after admitting Arunaben as an indoor patient, he had administered I.V. Fluid, Antibiotics and had also performed dressing of the burn wounds and had made all possible endeavour to save her life. The P.W.1 has deposed that he had issued a certificate of injuries - Exh.13. He has further deposed that right from the time Arunaben was admitted in the Hospital till the time she passed away, she was conscious. He has further deposed that the Executive Magistrate had come at his hospital for recording of the dying declaration of the injured Arunaben and before recording the dying declaration the Executive Magistrate had met him at the hospital. He has deposed that he had discussed with the Executive Magistrate regarding the overall condition of the patient and thereafter he had put an endorsement regarding the same on the dying declaration. The P.W.1 has also deposed that while the dying declaration was being recorded, he was present. He has deposed that in the history of incident, it was narrated by Arunaben that her husband had poured kerosene on her and had set her on fire by striking a matchstick on 27 th February, 1999 at around 10.30. He has further deposed that Arunaben was brought at his hospital by her relatives without any IV Line or oxygen at 4 O'clock in the early morning of 28 th Page 11 of 36 R/CR.A/857/2000 CAV JUDGMENT February, 1999. In his cross-examination the P.W.1 has deposed that when the deceased was brought at his hospital at that time he had not inquired with the relatives whether any medical treatment had been given to her at some other dispensary or hospital. He has deposed that it is absolutely necessary to know whether any primary treatment had been given earlier before starting with the treatment. He has deposed that although there were 98% burns on the body of the injured and seven hours had elapsed, he had not made any specific inquiry from the relatives regarding treatment at some other place. He has also deposed that after admitting Arunaben in the hospital he had informed the Naranpura Police Station on telephone stating that a woman by name Arunaben Maheshbhai Patel resident of Gozariya, Dist: Mehsana has burnt herself while cooking on 27th February,1999 at 23.20 hours. He also informed the Naranpura Police station that Arunaben had been brought for treatment by her husband Maheshbhai Patel. The P.W.1 accordingly requested the Naranpura Police Station to do the needful. He has further deposed that the dressing was done on the wounds and I.V. fluids were administered through her right hand. He has deposed that considering the nature of injuries it was not possible to record the blood pressure of the injured. He has further deposed that the patient was not shouting and was answering the questions which were put to her quietly despite the fact that she had sustained 98% of burns. He has further deposed that pain killer injections are ordinarily administered in cases of burns. He has deposed that having regard to the burn injuries sustained by Arunaben her chances of survival were very remote. According to this witness it was difficult to state whether the burn injuries were homicidal or suicidal. He Page 12 of 36 R/CR.A/857/2000 CAV JUDGMENT has also deposed that the entire expenses of the medical treatment incurred were borne by Maheshbhai i.e. the husband of the deceased.
B) P.W.2 Dr.Rajeshbhai Shripadi Shukla - Exh.16 :
The P.W.2 in his evidence has deposed that on 2/3/1999 he was serving as a Medical Officer at the V.S. Hospital, Ahmedabad. On 2/3/1999 he received a dead body of a lady by name Arunaben Maheshbhai Patel through PSI of the Naranpura Police Station for the purpose of postmortem. He has deposed that he had commenced the postmortem at 8.30 in the morning on 2/3/1999. He has deposed that the following injuries were noticed on the body of the deceased as mentioned in Column No.17 of the postmortem report -Exh.17.
i) Face and neck show 2° to 3° burns. Eye brows and eye laster burnt upto root. Kerosene oil like smell present on scalp hairs. Scalp hair burnt and singed in mid frontal & mid parietal regions.
ii) Chest and abdomen show 2° to 3° burns.
iii) 2° to 3° burns on back of body including posterior
aspect of neck and both glutei regions.
iv) 2° to 3° burns on both upper limbs including exilic
and palms.
v) 2° to 3° burns on both lower limbs except soles
bilaterally.
The P.W.2 has further deposed that there were 3 rd degree burns on the body of the deceased. Both the palms along with armpit were burnt and smell of kerosene was found from the head of the deceased. In the cross-examination, the P.W.2 has Page 13 of 36 R/CR.A/857/2000 CAV JUDGMENT deposed that Arunaben had practically sustained 100% deep burns. He has deposed that in such cases of severe burns medicines like Morphine, Analgin are given as pain-killers. The P.W.2 has deposed that considering the heels of the patient, it could be said that while the kerosene was poured she might be in a standing posture. He has deposed that both the palms were found to be burnt and he denied the suggestion given to him that if palms of both the hands are found to be burnt, then it would suggest to be a case of suicide. The P.W.2 has further deposed that it was difficult to state with authority that in the present case the deceased had committed suicide by pouring kerosene on her body.
C) P.W.3 Mr.Sureshchandra Vasudev Dixit - Exh.18 :
The P.W.3 in his evidence has deposed that on 28 th February, 1999 he was serving as the Executive Magistrate. His Office is situated in the Collector's Office. He has deposed that his jurisdiction was confined to the Metropolitan area, Gheekanta Court-2 at Ahmedabad. He has deposed that on 28th February 1999 early in the morning at around 5.15 he received a Yadi from the Naranpura Police Station with the opinion of the doctor on the same. The opinion of the doctor on the said Yadi was obtained at 4.50 hours in the morning. He has deposed that he had reached the Hospital situated at Old Vadej at 5.30 in the morning and had requested the relatives of the patient to go outside the room. The Police Constables were also asked to go outside the room. He has deposed that he started recording the dying declaration of Arunaben at 5.30 in the morning and completed the same at 5.45 A.M. He had read over the entire dying declaration before Page 14 of 36 R/CR.A/857/2000 CAV JUDGMENT Arunaben and thereafter had obtained the right hand thumb impression of the injured and he himself also put his signature on the same. He has deposed that thereafter he obtained the opinion regarding the mental state of the patient. The P.W.3 has deposed that in the dying declaration Exh.19 Arunaben stated that her husband had burnt her as she was not able to conceive in the wedlock of 18 years. He has deposed that it was also stated by Arunaben that her husband had brought home a mistress by name Malika and both together had set her on fire. He has deposed that it was stated by Arunaben that after the fire was extinguished her husband and the neighbours together had brought her to the hospital for treatment. He has deposed that a specific question was put to Arunaben whether she had attempted to commit suicide and in reply she denied the same. In his cross-examination he has deposed that he had started recording the dying declaration at 5.30 in the morning and after completing the recording of the dying declaration had obtained the endorsement of the doctor.
He admitted in his cross-examination that there was some discrepancy in the dying declaration and the contents of the police yadi. He has deposed that he had not sought any clarification from the police regarding such discrepancy.
D) P.W.4 Dhananjay Maganbhai Patel - Exh.22 :
This witness has deposed that on 28th February, 1999 he was serving in the DSP Office at Mehsana. He received a wireless Wardhi from Vasai Police Station in connection with C.R.No.40/1999 and on receipt of such wardhi he had visited the place of occurrence. He has deposed that the house at which the incident occurred was a two storied house with three Page 15 of 36 R/CR.A/857/2000 CAV JUDGMENT rooms. He has deposed that on entering the first room, he found a platform and a toilet. In the front side of the house there was a bathroom. This witness has deposed that some burnt pieces of saree and petticoat were found near the door of the bath-room. In the cross-examination of this witness he has deposed that the room where the incident had occurred admeasured about 15 x 20 ft. and there was a door with a grill to enter in the Veranda. He has further deposed that there was one door in the Veranda for entering in the main room and the other door was also situated in the Veranda leading to the first floor through a staircase. He has deposed that there was no other door noticed to enter in the main room except those two doors. He has also deposed that the incident had occurred in the kitchen room and the stopper of the door of the staircase was found bent towards the bathroom. In addition to the Panchnama which was prepared with the help of the Forensic Officer, the Investigating Officer had also prepared the Panchnama. He has deposed that after entering the Veranda the door which lead to the main room opened inside the room. He has deposed that the latch of the door which was there to enter the room from the Veranda, was found to be bent from inside. He has deposed that the incident had occurred in the kitchen-room.
E) P.W.5 Himatbhai Somnath Patel - Exh.25 :
The P.W.5 has deposed that he resides at SutharVas situated at Gozariya. He has deposed that the house of the accused persons is also situated in the Suthar Vas. On the date of the incident one Rameshbhai Dhulabhai was to leave for U.S.A. and therefore, the P.W.5 along with one Bhikhabhai Page 16 of 36 R/CR.A/857/2000 CAV JUDGMENT and few others had gone to meet him and they all were sitting in the courtyard. At around 12 O'clock in the night the P.W.5 and the others heard shouts coming from the house of the accused no.1 Maheshbhai. The P.W.5 has deposed that he saw fire and rushed at the house of Maheshbhai. He has deposed that they all found Arunaben on fire. Arunaben was in the Veranda. The door of the Veranda was locked but the P.W.5 and the others could manage to break-open the door and got inside the Veranda. He has deposed that at that time Maheshbhai, Malikaben and mother of Maheshbhai were inside the room while the door was locked from outside. After extinguishing the fire, the ambulance was called for. He has deposed that the police had recorded his statement. He has also deposed that while trying to extinguish the fire he had also sustained injuries on his legs. In his cross-examination this witness has deposed that he could see the house of Maheshbhai from his own house. He could also hear the shouts from the house of Maheshbhai while at his own house. He has also deposed that near the house of Maheshbhai, there are houses of Ambalal Prasadbhai, Baldevbhai Mohanbhai, Bhagwatiben Rameshbhai, Kankuben Kaluji, Bhikhabhai Harjivabhai. Rameshbhai who was to leave for USA happens to be the brother of the P.W.5. He has deposed that Rameshbhai had left for Ahmedabad at around 12 O'clock in the night on 27th February, 1999. He has deposed that when they reached the house of Maheshbhai, the door of the Veranda was locked from inside and the same was broken-open by exerting force. After breaking open the door of the Veranda, the fire was extinguished by throwing a quilt on the body of Arunaben. He has deposed that at that time all the three accused persons were not there, but they were shouting from inside the room.Page 17 of 36 R/CR.A/857/2000 CAV JUDGMENT
He has deposed that both the doors were broken open i.e. the door leading to the staircase as well as the main door. Thereafter ambulance was immediately called for.
F) P.W.6 Ashokbhai Naranbhai Patel - Exh.36 :
The P.W.6 in his evidence has deposed that the deceased Arunaben happened to be the daughter of his elder uncle. Arunaben was married with Maheshbhai at Gozariya past 18 years. In the wedlock no children were born to Arunaben. On the date of the incident, the P.W.6 received a phone-call from Kamlesh informing him that Aruna had been burnt by her husband and asked the P.W.6 to immediately reach the Vadaj Hospital. He has deposed that as dying declaration of Arunaben was to be recorded, none was permitted to see or meet Arunaben. He has deposed that in the evening on inquiring with Arunaben regarding the incident it was stated by Arunaben before P.W.6 that her husband and her husband's mistress Malika had set her on fire. In the cross-examination of this witness he has deposed that his statement was recorded by the Police two days after the demise of Arunaben. He has deposed that it was true that he had no talks with Arunaben. He denied the suggestion given to him that with a view to seek revenge Arunaben was instigated to lodge a false FIR as well as the dying declaration implicating her husband Maheshbhai in the crime.
G) P.W.7 Kamleshbhai Amrutbhai Patel - Exh.37 :
This witness is the brother of the deceased. The P.W.7 has deposed that past a year and a half from the date of the Page 18 of 36 R/CR.A/857/2000 CAV JUDGMENT incident Arunaben used to tell the P.W.7 that her husband had illicit relations with Malika as a result Arunaben was treated cruelly by her husband and the husband's mistress. He has deposed that he had received a phone-call from the mother-in- law of Arunaben at 12.30 in the night informing that Aruna had burnt herself. He has deposed that thereafter they all reached Arihant Hospital where Arunaben was admitted. He has deposed that initially he was unable to look at her sister Arunaben, but thereafter he had a talk with Arunaben and was told by Arunaben to the P.W.7 that she had been burnt by her husband Malika and her mother-in-law.
H) P.W.8 Vishnubhai Keshavlal Patel - Exh.39 :
The P.W.8 in his evidence has deposed that he knows the family of the accused persons and at the time of the incident he was at his house. He has deposed that Maheshbhai i.e. the accused no.1 had sent a message through other person informing him that Aruna had burnt herself and he should come to the dispensary. The P.W.8 has deposed that thereafter he went to the Gozariya dispensary. At the dispensary medical treatment was being given to Arunaben and the doctor of Gozariya Dispensary advised to transfer Arunaben to Ahmedabad. He has deposed that accordingly an ambulance was called for. He had seen Arunaben but had no talks with her. He has deposed that Arunaben was saying that she had burnt herself and requested for water. The P.W.8 has also deposed that she was abusing and cursing Maheshbhai. He has deposed that Arunaben was saying that it was due to Maheshbhai's misdeeds that she had to take such an extreme step. However, this witness was declared as a hostile witness.Page 19 of 36 R/CR.A/857/2000 CAV JUDGMENT
In the cross-examination of this witness by the Public Prosecutor nothing substantial could be elicited on the basis of which it could be said that the P.W.8 is an unreliable witness and his version is far from truth. The statements made by this witness in his examination-in-chief have not been challenged in the cross-examination by the Public Prosecutor.
I) P.W.9 - Prahladbhai Bapudas Patel - Exh.40 :
This witness has been examined as a Panch witness of the scene of offence Panchnama, Exh.41. The P.W.9 in his evidence has deposed that on 28 th February,1999 he was called at the house of the accused no.1 to act as a panch witness. Along with the P.W.9 there was a second panch witness, namely, Anwarmiya Hussainmiya also present at the house of accused no.1. He has deposed that on the ground floor some burnt pieces of cloth were found and in the front part of the house smell of kerosene was felt. The P.W.9 has deposed that the Police collected the stove, matchbox and the burnt pieces of cloth. In his cross-examination he has deposed that the place of occurrence was shown by Dahiben Bhikhabhai i.e. original accused no.2. He has deposed that adjoining the house of the accused no.1 there are other residential houses. He has also deposed that the Veranda was covered by a grill admeasuring 13 x 10 ft. and the burnt pieces of cloth were found from the Veranda only. He has also deposed that some force was found to be exerted on the wash-basin and the top part of the kitchen was found to be covered with black sooth. He has also deposed that the latch on the door of the grill covering the Veranda was found to be bent. He has deposed that if any person wants to get into the room inside the house, Page 20 of 36 R/CR.A/857/2000 CAV JUDGMENT then that the person has to enter through the Veranda. He has deposed that there is one door to enter the main room of the house and the other door was one near the staircase. He has deposed that the latch of the door through which one could enter the main room of the house was also found to be bent.
J) P.W.10 Mavjibhai Jivabhai Ansari - Exh.42 :
The P.W.10 in his evidence has deposed that on 28 th February,1999 he was serving as a PSI at the Naranpura Police Station. The PSO had issued a wardhi to the P.W.10 to reach the hospital situated at Old Vadaj where one Arunaben Maheshbhai had been admitted due to burn injuries. He has deposed that on the strength of the wardhi he had reached the hospital at 4.20 in the early morning. The P.W.10 has deposed that on reaching the hospital he was told by the doctor that Arunaben had been admitted. He has also deposed that the doctor informed him that Arunaben was in a position to speak. Thereafter the P.W.10 visited the Ward where Arunaben was admitted and recorded the First Information Report of the deceased. The P.W.10 has deposed that it was stated by the deceased while recording the first information report that she was married to the accused no.1 past 18 years but was not able to conceive due to which her husband i.e. the accused no.1 remained annoyed and disappointed. He has also deposed that thereafter it was stated by the deceased that her husband brought another lady at the house by name Malika and started living with her as husband and wife. The P.W.10 has deposed that it was also stated by the deceased that on 14th January, 1999 the accused no.1 had got married to Malikaben. He has deposed that it was stated by the deceased Page 21 of 36 R/CR.A/857/2000 CAV JUDGMENT that on 27th February, 199 her husband returned home in the night and asked Arunaben to go outside the house and sleep. He has deposed that thereafter Arunaben stated that the accused no.1 poured kerosene on her body while Malikaben and Dahiben i.e. the mother of accused no.1 had caught hold of the deceased. He has deposed that thereafter it was stated by Arunaben that Maheshbhai set her on fire by striking a matchstick. In the cross-examination the P.W.10 has deposed that when he reached the hospital the treatment of Arunaben was going-on. He has deposed that dressing on the wounds was completed. He has also deposed that by the time he reached at the hospital, the relatives of Arunaben had already arrived. He has deposed that when he reached the hospital, the doctor was in his chamber. He has deposed that in the wardhi which he had received it was stated that Arunaben had been admitted in the hospital by her husband Maheshbhai. He has also deposed that when he reached the hospital Arunaben was sleeping and was shouting due to excruciating pain. He has deposed that he was present at the hospital upto 5 O'clock but was not present when the Executive Magistrate arrived to record the dying declaration of Arunaben. He has deposed that the condition of the patient was very critical and was between life and death. He has also deposed that before recording the first information report he had not obtained the endorsement of the doctor as regards the mental condition of Arunaben. He has also deposed that Arunaben was speaking with lot of difficulty. This witness has also deposed that the brother of the deceased had consented to hand-over the dead body of Arunaben to her husband Maheshbhai. He has deposed that the two brothers of Arunaben, namely, Kamleshbhai and Ashokbhai were also present.Page 22 of 36 R/CR.A/857/2000 CAV JUDGMENT
K) P.W.11 Karansinh Gulabsinh - Exh.45 :
The P.W.11 in his evidence has deposed that from 8 o'clock in the night of 27th February, 1999 till the morning of 28th February,1999 he was on duty as a PSO at the Naranpura Police Station, Ahmedabad. He has deposed that on 28 th February, 1999 at around 5.15 hours in the morning he received a complaint recorded by PSI Shri Ansari for the purpose of registration of the offence. He has deposed that the complaint was lodged by one Arunaben Maheshbhai. He has deposed that accordingly the necessary entry was effected in the Station Diary and the offence was registered.
L) P.W.12 Rupsinh Badsangji - Exh.47 :
The P.W.12 in his evidence has deposed that on 28 th February, 1999 he was incharge as a PSO at the Vasai Police Station. He has deposed that on that day at around 1.30 in the afternoon he had received the papers from the Naranpura Police Station. On receipt of the papers he registered the offence at the Vasai Police Station vide C.R.No.40/1999 and handed-over the investigation to PSI Shri Raval.
M) P.W.13 Navinchandra Iskwarlal Raval -Exh.48 :
The Investigating Officer P.W.13 in his evidence has deposed that on 28th February, 1999 he was serving as a PSI. He has deposed that the Naranpura Police Station, Ahmedabad Page 23 of 36 R/CR.A/857/2000 CAV JUDGMENT forwarded the necessary papers to the PSO of the Vasai Police station and on the basis of the same, the C.R.No.40/1999 was registered of the offence under Section 307 read with Sec. 114 of the I.P.C. He has deposed that thereafter the investigation was handed-over to him. He has deposed that he visited the place of occurrence and drew the scene of offence Panchnama. In his evidence he has explained the various stages of investigation carried-out by him. In his cross-examination he has deposed that the outside part of the grill covering the Veranda was found to be bent. He has deposed that the entire incident had occurred only in the area of the Veranda. He has also deposed that the door through which one can enter the main room of the house could be reached only after passing through the Veranda and the second door in the Veranda led towards the staircase. He has deposed that if both these doors are closed, then it is not possible to enter in the main room. However, one could go on top through the staircase. He has also deposed that without opening the main door one cannot come in the Veranda. He has deposed that the door through which one can enter the main room through the Veranda was found to be detected with black sooth. He has deposed that the latch outside the main door was found to be bent and the latch outside the door leading to the stair case was also found to be bent. He has deposed that the persons to arrive at the house of the accused no.1 first after the incident were the P.W.5 Himmatbhai and one Bhikhabhai. He has deposed that on recording the statements of Himmatbhai and Bhikhabhai it was revealed that the incident had occurred at 12 O'clock in the night. He has also deposed that the houses of Himmatbhai and Bhikhabhai are next to the house of the accused no.1.Page 24 of 36 R/CR.A/857/2000 CAV JUDGMENT
ANALYSIS:
13. Having heard the learned counsel appearing for the parties and having gone through the materials on record, the only question that falls for our consideration in this appeal is whether the Trial Court committed any error in finding the accused persons guilty of the offence of murder. Upon re- appreciation and re-evaluation of the entire evidence on record, oral as well as documentary, we are of the view that the conviction of the accused persons ought not to have been based on the two dying declarations as relied upon by the Trial Court. There are many reasons for arriving at such a conclusion. It is no doubt true that the conviction can be recorded on the basis of the dying declaration alone, but therefor, the same must be wholly reliable. In a case where suspicion can be raised as regards the correctness of the dying declaration, the Court, before convicting an accused on the basis thereof would look for some corroborative evidence. Suspicion is no substitute for proof. If the evidence brought on record suggests that such dying declaration does not reveal the entire truth, then in such circumstances it may be considered only as a piece of evidence, in which event, conviction may not be rested only on the basis thereof. The question, whether a dying declaration is of a impeccable character, would depend upon several factors, physical and mental condition of the deceased is one of them.
14. The Supreme Court has laid down in several judgments the principles governing dying declaration, which could be summed up as under as indicated in the case of Paniben v/s. State of Gujarat, reported in (1992)2 SCC 474 (SCC pp.480-81, Page 25 of 36 R/CR.A/857/2000 CAV JUDGMENT para 18) (Emphasis supplied):
"(i) There is neither rule of law nor of prudence that dying declaration cannot be acted upon without corroboration. [See Munnu Raja v. State of M.P. (1976) 3 SCC 104]
(ii) If the Court is satisfied that the dying declaration is true and voluntary, it can base conviction on it, without corroboration. [See State of U.P. v. Ram Sagar Yadav, (1985)1 SCC 552 and Ramawati Devi v. State of Bihar, (1983)1 SCC 211]
(iii) The Court has to scrutinise the dying declaration carefully and must ensure that the declaration is not the result of tutoring, prompting or imagination. The deceased had an opportunity to observe and identify the assailants and was in a fit state to make the declaration.
[See K.Ramachandra Reddy v. Public Prosecutor, (1976) SCC 618]
(iv) Where dying declaration is suspicious, it should not be acted upon without corroborative evidence. [See Rasheed Beg v. State of M.P., (1974)4 SCC 264]
(v) Where the deceased was unconscious and could never make any dying declaration the evidence with regard to it is to be rejected. [See Kake Singh v. State of M.P., 1981 Supp SCC 25]
(vi) A dying declaration which suffers from infirmity cannot form the basis of conviction. [See Ram Manorath Page 26 of 36 R/CR.A/857/2000 CAV JUDGMENT v. State of U.P., (1981)2 SCC 654]
(vii) Merely because a dying declaration does not contain the details as to the occurrence, it is not to be rejected. [See State of Maharashtra v. Krishnamurthi Laxmipati Naidu, 1980 Supp SCC 455]
(viii) Equally, merely because it is a brief statement, it is not be discarded. On the contrary, the shortness of the statement itself guarantees truth. [See Surajdeo Ojha v. State of Bihar, 1980 Supp SCC 769]
(ix) Normally the Court in order to satisfy whether the deceased was in a fit mental condition to make the dying declaration look up to the medical opinion. But where the eyewitness has said that the deceased was in a fit and conscious state to make the dying declaration, the medical opinion cannot prevail. [See Nanhau Ram v. State of M.P., 1988 Supp SCC 152]
(x) Where the prosecution version differs from the version as given in the dying declaration, the said declaration cannot be acted upon. [See State of U.P. v. Madan Mohan, (1989)3 SCC 390]
(xi) Where there are more than one statement in the nature of dying declaration, one first in point of time must be preferred. Of course, if the plurality of dying declaration could be held to be trustworthy and reliable, it has to be accepted. [See Mohanlal Gangaram Gehani v. State of Maharashtra, (1982)1 SCC 700] Page 27 of 36 R/CR.A/857/2000 CAV JUDGMENT
15. In the light of the above principles, the acceptability of the alleged dying declaration in the instant case has to be considered. If, after careful scrutiny, the Court is satisfied that it is free from any effort to induce the deceased to make a false statement and if it is coherent and consistent, there shall be no legal impediment to make a basis of conviction, even if there is no corroboration. With these principles, let us consider the statement of Arunaben and its acceptability.
16. It is not in dispute that the deceased Arunaben was married to the accused no.1 past 18 years from the date of the incident. It is also not in dispute that in the wedlock of 18 years the deceased was unable to conceive and this appear to be the main reason why the marital life of the accused no.1 and the deceased was disturbed. It also appears that the accused no.1 was quite desperate to have a child in the family and therefore, decided to maintain relations with Malika. To a certain extent on the basis of the evidence on record it also appears that Arunaben might have consented to the relations of accused no.1 with Malika. It appears to us that it was the fateful incident which occurred on 27th February, 1999 at around 10.30 in the night when the accused no.1 asked the deceased to go outside the house and sleep, created the problem. We have no doubt in our mind that the deceased must have felt extremely hurt and insulted when her own husband i.e. the accused no.1 told her to go and sleep outside the house i.e. may be in the Veranda. We have no doubt in our mind that any wife would feel extremely humiliated and bad if such words are uttered by her own husband and more particularly when the husband has brought a mistress in the Page 28 of 36 R/CR.A/857/2000 CAV JUDGMENT house. At the same time, due to such humiliation and insult, the deceased took the extreme step of pouring kerosene on her body and thereafter setting herself on fire by striking a match-stick. It is always a difficult question to speculate why the deceased accused a certain persons of committing crime, or why the witness deposes against the person with whom he has no ostensible cause of enmity or why the police, in the discharge of his public duty should influence persons to make inaccurate statements, when courts come to a conclusion that the accusation of the evidence does not appeal to be true and that there are reasons to suppose that the police has influenced the testimony of the witness. Anyway, the same difficulty occurs in the present case. If the deceased had been nurturing a grudge against her husband and his concubine for the reasons which we have assigned above, she, while committing suicide herself, may try to implicate both so as to make their life miserable. If such were the relations which one is inclined to infer from what the prosecution wants the Court to believe, it should not be difficult to imagine that the wife's motives in charging the husband, the mistress of the husband and her mother-in-law falsely may be equally strong. The deceased Arunaben must have been fed-up with the misery of the life and might have committed suicide and put an end to her life, but when, as often happens, she was questioned, she accused her husband, Malikaben and the mother-in-law of setting fire to her clothes after pouring kerosene, not with a view to save herself from a conviction for attempting to commit suicide, but either on account of her feeling that her husband was responsible for all her troubles and that her desperate action was also due to the same cause or out of malice. Anyway, a dying declaration is not to be believed Page 29 of 36 R/CR.A/857/2000 CAV JUDGMENT merely because no possible reason can be given for accusing the accused falsely. It can only be believed if there are no grounds for doubting it at all. There are grounds which we shall discuss to arrive at a conclusion that the version of the deceased in her two dying declarations is not correct. Court cannot in all cases presume that a dying person would never make a false statement.
17. The First Information Report, Exh.43, lodged by the deceased herself while undergoing treatment at the hospital, indicates that the deceased involved her husband, the accused no.1, her mother-in-law, original accused no.2 and Malikaben, the accused no.3. In the first information report it is alleged by the deceased that on the date of the incident her husband asked her to go outside and sleep and when she refused, she was beaten up by her husband. It is also alleged that thereafter the mother-in-law who was sleeping on the first floor was called and her mother-in-law also joined the accused no.1 in beating the deceased. In the First Information Report the deceased has stated that after being set on fire by the accused persons, she raised shouts as a result people from the neighbourhood arrived and extinguished the fire by throwing a quilt on her body. She has also stated in the FIR that thereafter her husband called for the ambulance and took her to the hospital for treatment. It is important to note that the mother-in-law has been acquitted by the Trial Court and there is no acquittal Appeal filed by the State. When the Dying declaration Exh.19 was recorded by the Executive Magistrate, the deceased did not say a word against her mother-in-law, but levelled allegations only against her husband and the mistress of the husband i.e. the original accused no.3, appellant no.2.
Page 30 of 36 R/CR.A/857/2000 CAV JUDGMENTAt this stage it may not be out of place to state that in the Medical Certificate Exh.15 issued by the Arihant Burns and Plastic Surgery Hospital dated 28 th February, 1999, the history of the incident has been noted. In the history before the doctor she involved only the husband and not a word was uttered against the appellant no.2. It appears that slowly and gradually the deceased decided to implicate all the three persons.
18. In our opinion the case of the prosecution should fail only on the evidence of the P.W.5 Himmatbhai Somabhai Patel. The P.W.5 is an independent witness examined by the prosecution. He is the neighbour of the accused no.1. The P.W.5 has not been declared as a hostile witness. The evidence of the P.W.5 would indicate that at around 12 O'clock in the night while he was sitting along with others in the locality, he saw fire at the house of the accused no.1 and therefore, everyone rushed at the house of the accused no.1 and saw that Arunaben had set herself on fire. The P.W.5 has deposed that Arunaben was in the Veranda. The door of the grill enclosing the Veranda had to be broken open and thereafter the fire was extinguished by throwing a quilt on the body of the deceased. This witness in clear terms has deposed that the main door in the house was locked from outside and the three persons i.e. the accused no.1, his mother and the accused no.3 were shouting from inside the house. It appears that the accused no.1 and the other family members must have tried to break open the door as it was locked from outside as a result the latch from outside was also found to be damaged and bent. This fact is fully established from the evidence of the panch witness i.e. the P.W.9 Prahaladbhai Bapudas Exh.40 and the evidence of the Page 31 of 36 R/CR.A/857/2000 CAV JUDGMENT P.W.13 Navinchandra Ishwarbhai Raval Exh.48 the I.O. It is also not in dispute that it was the husband i.e. the accused no.1 who immediately called for the ambulance and first took the deceased to the Gozariya Government Hospital and from there she was shifted to the Ahmedabad Arihant Burns Hospital.
19. From the oral evidence as well as documentary evidence it is very clear that the front part of the house is a Veranda which is enclosed with a grill. If a person wants to enter the Veranda he has to enter through the door affixed with the grill and thereafter if the person wants to enter the house i.e. the main room of the house, again there is a door. It also appears that there is one another door in the Veranda leading to the staircase. If the main door of the house through which one can enter the main room, was found to be locked from outside and had to be broken open and it is only thereafter that the accused no.1 and the accused no.3 and the mother of the accused no.1 were able to come out in the Veranda then it is suggestive of the fact that the deceased doused herself with kerosene in the Veranda after locking the door from outside and set herself on fire by striking a match-stick. The Investigating Officer, in clear terms, has deposed that the incident had occurred only in the area of Veranda and at no other place. The burnt pieces of cloth were also found from the area of Veranda only. There is no reason for us to disbelieve the testimony of the P.W.5 Himmatbhai Patel. After all he is a witness examined by the prosecution. His evidence stands fully corroborated by the evidence of the P.W.9 Prahalladbhai i.e. the panch witness and the evidence of the Investigating Officer, P.W.13.
Page 32 of 36 R/CR.A/857/2000 CAV JUDGMENT20. Although the P.W.8 Vishnubhai Keshavbhai Patel has been declared as a hostile witness, yet we find no reason even to disbelieve the version of this witness as it is more probable and corroborated by the evidence of the P.W.5, P.W.9 and the P.W.13. The P.W.8 in his evidence has deposed that he was informed by the accused no.1 through some other person that Arunaben had burnt herself and that he should reach at the hospital. The P.W.8 accordingly reached the Gozariya Dispensary where the doctor advised that Arunaben be transferred to any hospital at Ahmedabad. The P.W.8 has deposed that at that time Arunaben stated that she had burnt herself and asked for water. He has also deposed that at that time Arunaben was cursing and abusing Maheshbhai stating that she had to take the extreme step only because of the misdeeds of her husband Maheshbhai. This version of the P.W.9 appears to us much more natural and probable.
21. As discussed above, it is only thereafter with a view to seek revenge it appears that Arunaben decided to implicate her husband, Malikaben and the mother-in-law in the crime.
22. Therefore, two versions have been placed before us for our consideration. The version of homicidal death by the prosecution and the version of suicidal death by the defence. At any rate, the fact that the deceased may have committed suicide, cannot be safely excluded or eliminated. We are, therefore, clearly of the opinion, taking the best view of the matter on the evidence in this case that two possibilities are clearly open (i) that it may be a case of suicide or (ii) that it may be a case of murder, and both are equally probable Page 33 of 36 R/CR.A/857/2000 CAV JUDGMENT hence, the prosecution case stands disproved. [See Sharad Birdhichand Sarda Vs. State of Maharashtra AIR 1984 SC 1622)
23. The trial Judge owes a responsibility to weigh the probability of the prosecution evidence, which he has to do for arriving at the decision whether the prosecution allegations have been proved by the standard laid down in Section 3 of the Evidence Act. In so weighing the probability of the prosecution allegations, of necessity, other probabilities also appearing from the evidence brought before the Court have to be considered for comparative assessment which of the probabilities should be accepted as a fact proved. If, from the evidence, any probability consistent with the innocence of the accused is equally strong as the probability pointing to his guilt, then on the strength of the presumption of innocence in favour of the accused, it could be said that the prosecution has failed to prove its allegations. Even if the probability consistent with innocence is not equally strong with other probability of his guilt, yet the probability of innocence is such as would cast a doubt, then it may be a case of reasonable doubt, the benefit of which must go to the accused. That being so, it is incumbent upon the trial Judge to consider all the probabilities that appear from the evidence before him and he cannot afford to be credulous and omit to consider the reasonable probabilities only because there is a dying declaration of the deceased. The judgment rendered by the trial Court has given us an impression that it neglected to consider a probable defence appearing from the evidence only because the medical evidence suggests so. The trial Court, as a Judge of fact, must consider the evidence given in the case from all view points.
Page 34 of 36 R/CR.A/857/2000 CAV JUDGMENT24. In the aforesaid context, we may quote with profit the observations of the Supreme Court in the case of Lal Mandi Vs. State of West Bengal, reported in (1995) Criminal Law Journal, 2659, as contained in paragraph 5 of the decision.
"5. To say the least, the approach of the High Court is totally fallacious. In an appeal against conviction, the Appellate Court has the duty to itself appreciate the evidence on the record and if two views are possible on the appraisal of the evidence, the benefit of reasonable doubt has to be given to an accused. It is not correct to suggest that the "Appellate Court cannot legally interfere with" the order of conviction where the trial Court has found the evidence as reliable and that it cannot substitute the findings of the Sessions Judge by its own, if it arrives at a different conclusion on reassessment of the evidence. The observation made in Tota Singh's case, which was an appeal against acquittal, have been misunderstood and mechanically applied. Though, the powers of an appellate Court, while dealing with an appeal against acquittal and an appeal against conviction are equally wide but the considerations which weigh with it while dealing with an appeal against an order of acquittal and in an appeal against conviction are distinct and separate. The presumption of innocence of an accused which gets strengthened on his acquittal is not available on his conviction. An appellate Court may give every reasonable weight to the conclusions arrived at by the trial Court but it must be remembered that an appellate Court is duty bound, in the same way as the trial Court, to test the evidence extrinsically as well as intrinsically and to consider as thoroughly as the trial Court, all the circumstances available on the record so as to arrive at an independent finding regarding guilt or innocence of the convict. An Appellate Court fails in the discharge of one of its essential duties, if it fails to itself appreciate the evidence on the record and arrive at an independent finding based on the appraisal of such evidence."
25. In the result, the appeal succeeds and is hereby allowed.
Page 35 of 36 R/CR.A/857/2000 CAV JUDGMENTThe order of conviction and sentence passed by the trial Court against the accused-appellants are hereby set aside. The accused No.1, Maheshkumar Bhikabhai Patel is ordered to be released forthwith, if not required in any other case. As the appellant No.2 has been released on bail pending this appeal, her bail bond stands discharged.
(BHASKAR BHATTACHARYA, C.J.) (J.B.PARDIWALA, J.) Mohandas Page 36 of 36