Gujarat High Court
State Of Gujarat vs Noorabhai Ahmedbhai on 23 January, 2023
Author: Vipul M. Pancholi
Bench: Vipul M. Pancholi
NEUTRAL CITATION
R/CR.A/1251/1997 JUDGMENT DATED: 23/01/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 1251 of 1997
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI
and
HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK
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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 or any order
made thereunder ?
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STATE OF GUJARAT
Versus
NOORABHAI AHMEDBHAI & 1 other(s)
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Appearance:
MR CHINTAN DAVE, APP for the Appellant(s) No. 1
for the Opponent(s)/Respondent(s) No. 1
MR SHAKEEL A QURESHI & NAUMAN S QURESHI for the
Opponent(s)/Respondent(s) No. 1,2
NOTICE SERVED for the Opponent(s)/Respondent(s) No. 2
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CORAM:HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI
and
HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK
Date : 23/01/2023
ORAL JUDGMENT
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NEUTRAL CITATION R/CR.A/1251/1997 JUDGMENT DATED: 23/01/2023 undefined (PER : HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI)
1. The appellant - State has preferred present appeal under Section 378 of the Code of Criminal Procedure, 1973 (hereinafter referred to as 'the Code' for short) challenging the judgment and order of acquittal dated 01.12.1997 rendered by the Additional Sessions Judge, Bhavnagar in Sessions Case No.37 of 1997.
2. The brief case of the prosecution is as under:
2.1. That one Sharifaben, wife of Noorabhai Ahmedbhai Sahelia, gave a complaint, wherein, she has alleged that on the date of incident i.e. on 27.09.1996, at about 2:30 p.m., her husband Noorabhai poured kerosene on her and thereafter set her on fire. The said incident had taken place because of certain disputes which are going on with the husband as well as her sister-in-law. The said complaint is registered as FIR.
3. After the registration of the said FIR, the investigating agency carried out the investigation and initially FIR under Sections 498-A, 307 and 34 of Indian Penal Code was registered. However, during the treatment, the First Informant died and therefore Section 302 of IPC came to be added.Page 2 of 30 Downloaded on : Sun Sep 17 21:05:38 IST 2023
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4. The investigating officer carried out the investigation and during the course of investigation the investigating officer recorded the statement of the witnesses and collected the documentary evidence. After the investigation was over, he filed the charge-sheet against the respondent accused before the concerned Magistrate Court. As the case was exclusively triable by the Court of Sessions, the concerned Magistrate committed the case under section 209 of the Code to the Sessions Court, Bhavnagar and the same was registered as Sessions Case No.37 of 1997.
5. During the course of the trial, the prosecution examined 12 witnesses and also produced documentary evidence as observed in para 2 and 3 of the impugned judgment and order of acquittal passed by the Sessions Court.
6. After the prosecution evidence was over, further statement of the accused came to be recorded under Section 313 of the Code and thereafter the learned Trial Court passed the impugned judgment and order whereby the respondents - accused were acquitted from the charges levelled against them for the offence punishable under Sections 498(A), 114 and 302 read with Section 34 of the Indian Penal Code. The appellant - State has, therefore, preferred the present appeal.
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7. Heard learned APP Mr. Chintan Dave for the appellant - State and learned advocate Mr. Shakeel Qureshi for the respondents - accused.
8. Learned APP Mr. Dave has mainly referred the deposition given by PW-1 - Ramjibhai Premjibhai Revar, Deputy Executive Magistrate - Exh.10, who had recorded the dying declaration of the deceased, which was produced at Exh.12. After referring to the aforesaid documents, learned APP contended that the Deputy Executive Magistrate reached to the hospital after he received Yadi from the PSO, Gariyadhar Police Station. He immediately reached to the spot and thereafter contacted the Doctor. The Doctor informed him that the patient is conscious and therefore her dying declaration can be recorded. Thereafter, the said witness had recorded the dying declaration of the deceased and after the dying declaration was recorded, the said witness had gone to the chamber of the Doctor, at that time, the Doctor made an endorsement on the dying declaration that patient is conscious. The learned APP, after referring to the dying declaration, contended that the deceased has specifically stated in the dying declaration that her husband poured kerosene on her and thereafter set her on fire and therefore when there is an evidence in the form of dying declaration which is supported by the Deputy Executive Magistrate, the learned Trial Court has committed grave error while disbelieving the said dying Page 4 of 30 Downloaded on : Sun Sep 17 21:05:38 IST 2023 NEUTRAL CITATION R/CR.A/1251/1997 JUDGMENT DATED: 23/01/2023 undefined declaration mainly on the ground that there is discrepancy in the timings mentioned in the said dying declaration. Learned APP, therefore, urged that impugned judgment and order be quashed and set aside.
8.1. Learned APP, thereafter, referred the deposition given by PW-2 - Chelshankar Laxmishankar Rajyaguru - Exh.13. The said witness had registered the FIR and carried out the investigation. It is submitted that the said witness has also supported the case of the prosecution.
8.2. At this stage, learned APP has referred the deposition given by PW-5 - Dr. Vijay Chhatrabhuj - Exh.24. The said witness conducted the postmortem of the deceased.
8.3. Learned APP also referred the deposition given by PW-10 - Dr. Dalpatbhai Jerambhai Parmar - Exh.44. After referring to the deposition of the said witness, it is submitted that the said witness had given the treatment to the deceased when she was brought to Gariyadhar Primary Health Centre at 3:20 p.m. The said witness has stated that when the treatment of the patient was going on, the Deputy Executive Magistrate came at the Health Centre for the purpose of recording the dying declaration of Sharifaben. The concerned police officer also came for taking the statement of the patient and thereafter the Dy. Executive Magistrate recorded the Page 5 of 30 Downloaded on : Sun Sep 17 21:05:38 IST 2023 NEUTRAL CITATION R/CR.A/1251/1997 JUDGMENT DATED: 23/01/2023 undefined dying declaration and after the dying declaration was recorded, the Dy. Executive Magistrate came to his chamber and necessary endorsement was made by the said witness in which it is stated that patient was conscious. Learned APP, at this stage, has also referred the re-examination of the said witness wherein he has stated that he had examined the patient when she was brought to the hospital and thereafter he was sitting in his chamber. During the said period, the nurse did not inform him about the adverse condition of the patient. Learned APP, therefore, urged that when the patient was brought to the hospital she was conscious and till she died at 4:30 p.m. the patient was conscious and during the said period, dying declaration was recorded by the Dy. Executive Magistrate. The FIR was also recorded by the concerned police officer during that period. Thus, when there is sufficient evidence available, the learned Trial Court has committed an error while passing the impugned order of acquittal. Learned APP, at this stage, submitted that the conviction can be recorded only relying upon the dying declaration given by the deceased which is supported by the oral evidence of the Dy. Executive Magistrate. In the present case, the dying declaration was recorded by the Dy. Executive Magistrate when the patient was conscious and therefore the learned Trial Court has committed grave error while not believing the same merely on the ground that there is discrepancy in the timings recorded in the dying declaration. Learned Page 6 of 30 Downloaded on : Sun Sep 17 21:05:38 IST 2023 NEUTRAL CITATION R/CR.A/1251/1997 JUDGMENT DATED: 23/01/2023 undefined APP has placed reliance upon the following decisions in support of his contentions.
(1) In case of Uttam v. State of Maharashtra, reported in (2022) 8 SCC 576; and (2) In case of State of Uttar Pradesh v. Veerpal and Another, reported in (2022) 4 SCC
741. 8.4. Learned APP, therefore, urged that the impugned judgment and order of acquittal passed by the learned Trial Court be quashed and set aside and thereby the appeal filed by the State be allowed.
9. On the other hand, learned advocate Mr. Qureshi appearing for the respondents - accused has opposed this appeal. Learned advocate for the respondents - accused has also referred the deposition given by the PW-1 - Ramjibhai Premjibhai Revar, Deputy Executive Magistrate - Exh.10, who had recorded the dying declaration of the deceased. Learned advocate has also referred the deposition given by PW-10 - Dr. Dalpatbhai Jerambhai Parmar - Exh.44. The said Dr. had given the treatment to the deceased when she was brought to the Primary Health Centre, Gariyadhar. Learned advocate, at this stage, has referred the medical certificate issued by the said witness i.e. Exh.45. It is submitted that as per the medical Page 7 of 30 Downloaded on : Sun Sep 17 21:05:38 IST 2023 NEUTRAL CITATION R/CR.A/1251/1997 JUDGMENT DATED: 23/01/2023 undefined certificate issued by the PW-10 i.e. Dr. Dalpatbhai Jerambhai Parmar the patient was having 100% first, second and third degree burn injuries on all over body except both soles. It is submitted that when the patient sustained 100% burn injuries, it was not possible for her to give dying declaration in such position. It is further submitted that in the examination-in-chief, PW-10 - Dr. Dalpatbhai Jerambhai Parmar has specifically stated that before recording of the dying declaration the Dy. Execitive Magistrate had not contacted him. Further, after the dying declaration was recorded he came to his chamber and obtained endorsement of the said witness. At that time, the said witness made an endorsement on dying declaration that, 'patient is conscious'. It is submitted that PW-1, the Dy. Executive Magistrate has stated in his examination-in-chief that when he reached to the Primary Health Centre, he contacted the Doctor who informed him that patient is conscious and therefore her dying declaration can be recorded. Thus, there are major contradictions in the deposition given by PW-1.
9.1. At this stage, it is also submitted that there are discrepancies in the timings mentioned in the dying declaration. It is submitted that when the PW-1 started recording the dying declaration the said witness has written the time 16:50 hours. However, subsequently, it was corrected to 15:50 hours, whereas at the end of the dying declaration 16:20 Page 8 of 30 Downloaded on : Sun Sep 17 21:05:38 IST 2023 NEUTRAL CITATION R/CR.A/1251/1997 JUDGMENT DATED: 23/01/2023 undefined hours is mentioned. Moreover, at the end of the dying declaration, it is mentioned that the thumb impression of the deceased was obtained. However, when the deceased got 100% first, second and third degree burn injuries all over her body except both soles, it is impossible for PW-1 to get her thumb impression at the end of the dying declaration and therefore the learned Trial Court has rightly not believed the version given by PW.1. Learned advocate for the respondents - accused, therefore, urged that the learned Trial Court has not committed any error while passing the impugned order of acquittal in favour of the respondents - accused.
9.2. Learned advocate Mr. Qureshi for the respondents
- accused contended that when there are two views possible and one possible view is adopted by the learned Trial Court, this Court may not interfere with the same while examining the appeal filed under Section 378 of the Code.
9.3. Learned advocate Mr. Qureshi has placed reliance upon the following decisions in support of his submissions:
(1) In case of Jayamma v. State of Karnataka, reported in (2021) 6 SCC 213;
(2) In case of Naresh Kumar v. Kalawati, reported in AIR 2021 SC 1605;Page 9 of 30 Downloaded on : Sun Sep 17 21:05:38 IST 2023
NEUTRAL CITATION R/CR.A/1251/1997 JUDGMENT DATED: 23/01/2023 undefined (3) In case of Divakar Neelkantha Hegde v. State of Karnataka, reported in (1996) 10 SCC 236; and (4) In case of State of Maharashtra v. Kashirao, reported in (2003) 10 SCC 434;
10. We have considered the submissions canvassed by learned advocates appearing for the parties. We have also gone through the material placed on record in the form of paper-book.
11. PW-1 - Ramjibhai Premjibhai Revar - Exh.10 has deposed that he was working as Dy. Mamlatdar (Revenue) in the office of Mamlatdar, Gariyadhar on 27.09.1996. The said witness has stated in his examination-in-chief that he received Yadi from PSO, Gariyadhar Police Station for recording dying declaration of Sharifaben Noorabhai. Said Yadi is produced at Exh.11. On the basis of the said Yadi, he reached to Gariyadhar Primary Health Centre where patient Sharifaben was taking treatment. The Doctor was present in the hospital and he contacted the said Doctor. The Doctor informed him that patient is conscious and therefore her dying declaration can be recorded. Thereafter he asked certain questions to patient Sharifaben to which patient has replied. The dying declaration of the deceased was recorded in question - answer form.
Page 10 of 30 Downloaded on : Sun Sep 17 21:05:38 IST 2023NEUTRAL CITATION R/CR.A/1251/1997 JUDGMENT DATED: 23/01/2023 undefined The said witness further stated that after the dying declaration of the patient was recorded, he had gone to the chamber of the Doctor where he was sitting and he obtained endorsement of the said Doctor and signature on the dying declaration. The Doctor, at that time, endorsed that patient is conscious. The dying declaration is produced vide Exh.12.
11.1. During the cross-examination of the said witness, once again the said witness has specifically stated that when he asked the Doctor about the condition of the patient, the said Doctor informed him that patient is conscious and her statement can be recorded and thereafter the Doctor left the place. The said witness has also admitted in his cross-examination that condition of the patient was serious. After recording of the said dying declaration, he went to the chamber of the Doctor and obtained signature of the Doctor. The said witness has also tried to explain in the cross-examination about the discrepancy in the timings mentioned in the dying declaration and he has tried to clarify that through oversight, instead of 15:50 hours, 16:50 hours is mentioned. He has also stated in the cross-examination that after the dying declaration of the patient was recorded, he obtained thumb impression of the patient. It is further stated by the said witness in the cross-examination that when he reached to Page 11 of 30 Downloaded on : Sun Sep 17 21:05:38 IST 2023 NEUTRAL CITATION R/CR.A/1251/1997 JUDGMENT DATED: 23/01/2023 undefined the Hospital for recording the dying declaration of the patient, the concerned Police Officer came to the Hospital for recording the statement of the patient. However, at the time of recording the dying declaration, he asked the said police officer to leave the said place.
12. If the dying declaration - Exh.12 is carefully examined, it is revealed that the concerned Doctor has made an endorsement at 16:20 hours that patient is conscious. It is also revealed that there is discrepancy in the timings mentioned by the PW-1.
13. PW-2 - Chelshankar Laxmishankar Rajyaguru - Exh.13 was working as Senior Head Constable in Gariyadhar Police Station. In his examination-in- chief, the said witness has stated that PSO of Gariyadhar Police Station asked him to visit the hospital on the basis of the Janvajog Entry No.40 of 1996 recorded at 16:15 hours and thereafter to carry out the investigation. On the basis of the said instruction, he reached to Gariyadhar Government Hospital where patient Sharifaben was under treatment. He asked certain questions to patient Sharifaben and recorded her complaint. After recording the complaint, he obtained thumb impression of right hand of the patient. The said FIR is produced vide Exh.14. Janvajog entry is produced vide Exh.15. After recording the FIR, the Page 12 of 30 Downloaded on : Sun Sep 17 21:05:38 IST 2023 NEUTRAL CITATION R/CR.A/1251/1997 JUDGMENT DATED: 23/01/2023 undefined said witness carried out the investigation and recorded the statement of the witness and prepared various Panchnamas.
13.1. During the cross-examination, the said witness has specifically stated that he took 30 to 45 minutes time for recording the FIR. He has specifically stated in the cross-examination that when he was recording the FIR of the patient/complainant, the Executive Magistrate was not present.
14. If the Yadi Exh.15 given by the Medical Officer of Gariyadhar Health Centre to PSI, Gariyadhar Police Station is carefully examined, it is stated in the said Yadi that condition of the patient is serious.
15. PW-3 - Chimanlal Gordhandas - Exh.19 and PW-4
- Razakbhai Daudbhai - Exh.21 are the neighbours of the deceased. However, both the aforesaid witnesses have not supported the case of the prosecution and declared hostile.
16. PW-5 - Dr. Vijay Chhatrabhuj - Exh.24 is the witness who had conducted postmortem of the deceased. The said witness has given the opinion that the deceased died due to burn injuries sustained by her. P.M. Report is produced at Exh.27. The said witness has further stated in his Page 13 of 30 Downloaded on : Sun Sep 17 21:05:38 IST 2023 NEUTRAL CITATION R/CR.A/1251/1997 JUDGMENT DATED: 23/01/2023 undefined cross-examination that such burn injuries are even possible if any person pours kerosene upon himself or when his cloth catches fire accidently.
17. PW-6 - Chandubhai Limbaji Kharadi - Exh.28 is the PSO who recorded the entry in the station diary Exh.29.
18. PW-7 - Aniruddhsinh Natubha Gohil - Exh.31 was working as Police Head Constable who got information from PSO that the patient has expired and therefore he sent Yadi to concerned Executive Magistrate for preparing the inquest.
19. PW-8 - Satishkumar Gangaram - Exh.36 was a Panch Witness of Panchnama of scene of offence, whereas, PW-9 - Shantilal Bavchandbhai - Exh.38 is also a Panch Witness. However, the said witness did not support the case of the prosecution and he was declared hostile.
20. Another important witness examined by the prosecution is PW-10 - Dr. Dalpatbhai Jerambhai Parmar - Exh.44. The said witness in his examination-in-chief has specifically stated that he was working as Medical Officer in Primary Health Centre, Gariyadhar on 27.09.1996. On the said day, at about 3:20 p.m., one Sharifaben was Page 14 of 30 Downloaded on : Sun Sep 17 21:05:38 IST 2023 NEUTRAL CITATION R/CR.A/1251/1997 JUDGMENT DATED: 23/01/2023 undefined brought to the said hospital in a burn condition. The said patient sustained first, second and third degree burn injuries on entire body except soles. He gave primary treatment to the said patient and informed to Gariyadhar Police Station. The patient was referred to Bhavnagar for further treatment at 4:30 p.m. The medical certificate Exh.45 was issued by him. The said witness further specifically stated in the examination-in-chief that when the treatment of Sharifaben was going on, the Executive Magistrate came to the hospital for recording the dying declaration of the patient and police officer had also come to the hospital for recording the statement of the patient. The said witness has specifically stated that before recording the dying declaration, the Executive Magistrate had not contacted him. However, after the dying declaration was recorded, the Executive Magistrate came to his chamber and obtained his endorsement and signature where he has endorsed that patient is conscious.
20.1.During the cross-examination, the said witness has stated that the patient sustained 100% burn injuries. He has also stated that when the patient was brought to the hospital, he had tried to get the information from the patient how the incident took place. However, she was not in position to give the details. The said witness has specifically asked about the manner in which the Page 15 of 30 Downloaded on : Sun Sep 17 21:05:38 IST 2023 NEUTRAL CITATION R/CR.A/1251/1997 JUDGMENT DATED: 23/01/2023 undefined incident took place. However, the patient did not give any answer to the same. He further stated that the condition of the patient was serious and therefore he asked three to four questions but when no reply was given, he has started giving treatment to the said patient. The said witness further stated that after giving treatment to the patient till the patient was referred to Bhavnagar, he was sitting in his chamber. In re- examination of the said witness, he has stated that he had examined the patient when she was brought to the hospital and thereafter he was sitting in his chamber. During the said period, the nurse did not inform him about the adverse condition of the patient.
21. PW-11 - Dineshbhai Nathubhai - Exh.47 is the Panch Witness of Panchnama of the seizure of the cloths of the accused, whereas, PW.12 - Mahadevbhai Govabhai Rabari - Exh.48 was working as PSI and prepared arrest panchnama of the accused and collected the cloths of the accused in presence of the Panch Witnesses and thereafter sent the muddamal for necessary analysis to FSL.
22. On the basis of the aforesaid oral as well as documentary evidence produced by the prosecution, the prosecution has tried to canvass the case that when the deceased herself had given the dying declaration before the Dy. Executive Magistrate Page 16 of 30 Downloaded on : Sun Sep 17 21:05:38 IST 2023 NEUTRAL CITATION R/CR.A/1251/1997 JUDGMENT DATED: 23/01/2023 undefined which is supported by the Dy. Executive Magistrate by his oral evidence, conviction can be recorded relying upon the dying declaration given by the deceased without any corroboration. Thus, learned APP has mainly relied upon the deposition given by the Dy. Executive Magistrate as well as dying declaration given by the deceased. Learned APP has also relied upon the deposition given by PW-10 - Dr. Dalpatbhai Jerambhai Parmar - Exh.44 who had given treatment to the patient/deceased.
23. If the evidence led by the prosecution, as discussed hereinabove, is carefully examined it is revealed that PW-10 - Dr. Dalpatbhai Jerambhai Parmar - Exh.44 has specifically stated that when the Executive Magistrate came to the Hospital for recording the dying declaration, he did not meet him and endorsement of the said witness/Doctor was obtained after the dying declaration was recorded by the Dy. Executive Magistrate and the said witness, without examining the patient, has made an endorsement that, 'patient is conscious', whereas PW-1 - Ramjibhai Premjibhai Revar, Deputy Executive Magistrate in his deposition stated that when he reached to the hospital for recording the dying declaration of the patient, he initially contacted the Doctor who informed him that patient is conscious and therefore her dying declaration can be recorded. However, the said part is missing in the deposition of the Doctor as referred to Page 17 of 30 Downloaded on : Sun Sep 17 21:05:38 IST 2023 NEUTRAL CITATION R/CR.A/1251/1997 JUDGMENT DATED: 23/01/2023 undefined hereinabove.
24. Further, there is discrepancy in the timings with regard to recording of the dying declaration by the said Dy. Executive Magistrate - PW1. Initially it was mentioned that he has started recording the dying declaration of the deceased at 16:50 hours. However, subsequently it was corrected to 15:50 hours. Further, from the cross- examination of PW-2 - Chelshankar Laxmishankar Rajyaguru, it is revealed that he took 30 to 45 minutes for recording the FIR and when he was recording the FIR of the patient/complainant, the Executive Magistrate was not present. Further, from the medical certificate Exh.45 issued by PW- 10 - Dr. Dalpatbhai Jerambhai Parmar, it is revealed that patient was brought to the hospital at 3:20 p.m. and was having 100% first, second and third degree burn injuries allover her body except both soles. Thus, we failed to understand how PW-1 and PW-2 got thumb impression of the deceased on dying declaration as well as on the FIR. From the Yadi given by the said medical officer to the concerned police officer of Gariyadhar Police Station, it is further revealed that condition of the patient was serious. Further, during the cross-examination of the said witness - PW-10 - Dr. Dalpatbhai Jerambhai Parmar, he has specifically stated that when the patient was brought to the hospital, he asked certain Page 18 of 30 Downloaded on : Sun Sep 17 21:05:38 IST 2023 NEUTRAL CITATION R/CR.A/1251/1997 JUDGMENT DATED: 23/01/2023 undefined questions and tried to get history about the manner in which the incident took place. However, the patient did not give any answer to the said questions and did not give any history. The said witness further specifically stated in the examination-in-chief that the Dy. Executive Magistrate had not contacted him before recording of the dying declaration and he came to the chamber of the said witness only after recording of the dying declaration of the patient and therefore he made an endorsement that the patient is conscious. It is pertinent to note that the said witness has not stated that the patient was in a fit state of mind to give the dying declaration.
25. Keeping in view the aforesaid facts and circumstances of the present case, at this stage, this Court would like to refer the decisions upon which reliance is placed by the learned advocates for the parties.
26. In case of Uttam (supra), the Hon'ble Supreme Court observed and held as under:
"14. In Paniben (Smt.) v. State of Gujarat, on examining the entire conspectus of the law on the principles governing dying declaration, this Court had concluded thus:
"18. ........ (i) There is neither rule of law nor of prudence that dying declaration cannot be Page 19 of 30 Downloaded on : Sun Sep 17 21:05:38 IST 2023 NEUTRAL CITATION R/CR.A/1251/1997 JUDGMENT DATED: 23/01/2023 undefined acted upon without corroboration. (Munnu Raja v. State of M.P.)
(ii) If the Court is satisfied that the dying declaration is true and voluntary it can base conviction on it, without corroboration.
(State of U.P. v. Ram Sagar Yadav; Ramawati Devi v. State of Bihar).
(iii) This 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 opportunity to observe and identify the assailants and was in a fit state to make the declaration. (K. Ramachandra Reddy v. Public Prosecutor) .
(iv) Where dying declaration is suspicious it should not be acted upon without corroborative evidence. (Rasheed Beg v. State of M.P.)
(v) Where the deceased was unconscious and could never make any dying declaration the evidence with regard to it is to be rejected. (Kake Singh v. State of M. P.)
(vi) A dying declaration which suffers from infirmity cannot form the basis of conviction. (Ram Manorath v. State of U.P.)
(vii) Merely because a dying declaration does not contain the details as to the occurrence, it is not to be rejected. (State of Maharashtra v. Krishnamurti Laxmipati Naidu)
(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. (Surajdeo Oza v. State of Bihar).
(ix) Normally the court in order to satisfy whether deceased was in a fit mental condition to make the dying declaration look up to the medical opinion. But where the eye witness has said that the deceased was in a fit and Page 20 of 30 Downloaded on : Sun Sep 17 21:05:38 IST 2023 NEUTRAL CITATION R/CR.A/1251/1997 JUDGMENT DATED: 23/01/2023 undefined conscious state to make this dying declaration, the medical opinion cannot prevail. (Nanahau Ram v. State of M.P.).
(x) Where the prosecution version differs from the version as given in the dying declaration, the said declaration cannot be acted upon. (State of U.P. v. Madan Mohan).
xxx xxx xxx
25. The credibility of a dying declaration recorded by the Magistrate has also come up for consideration in several cases and it has been held that a Magistrate being an uninterested witness and a respected officer and there being no circumstances or material to suspect that he would have any animus against the accused or would in any way be interested for fabricating a dying declaration, such a declaration recorded by the Magistrate, ought not be doubted. Absence of corroborative evidence for convicting an accused based on a dying declaration has been a matter of discussion in several cases [Ref.:
Munnu Raja (supra), Paniben (Smt.) (supra), Ram Sagar Yadav (supra), Ramawati Devi (supra) and Veerpal (supra)].
26.1 In case of Veerpal and Another (supra), the Hon'ble Supreme Court observed and held as under:
"8. At the outset, it is required to be noted in the present case, there are two dying declarations, one recorded by the Police Officer on 20.12.2011 and another recorded by the Magistrate/SDM recorded on 22.12.2011. Even in the impugned judgment and order, the High Court has as such specifically observed that none of the dying declarations inspire confidence. The High Court has not believed Page 21 of 30 Downloaded on : Sun Sep 17 21:05:38 IST 2023 NEUTRAL CITATION R/CR.A/1251/1997 JUDGMENT DATED: 23/01/2023 undefined the dying declaration recorded by the Magistrate/SDM on 22.12.2011 mainly on the ground that when the dying declaration was already recorded by the Police Officer on 20.12.2011, there was no reason to record the second dying declaration. However, it is required to be noted that what was recorded by the Police Officer on 20.12.2011 was the statement under Section 161 Cr.PC. Therefore, it was thought fit to record the dying declaration of the deceased by the Magistrate and that is why SDM was called to record the dying declaration of deceased on 22.12.2011.
9. At the cost of repetition, it is observed that even the High Court has specifically observed that the first statement/dying declaration recorded by the Police on 20.12.2011 does not inspire any confidence. In that view of the matter, it is required to be considered whether the dying declaration recorded by the Magistrate on 22.12.2011 is to be believed or not and whether on the basis of such dying declaration recorded by the Magistrate/SDM, the accused can be convicted or not.
10. While considering the aforesaid question/issue a few decisions of this Court on the credibility of the dying declaration recorded by the Magistrate are required to be referred to."
26.2.In the case of Jayamma (supra), the Hon'ble Supreme Court observed and held as under:
"18. We may now proceed to evaluate the evidentiary value of purported dying declaration (Ex.P5). As noticed earlier, the son and daughterinlaw of the deceased, their neighbour and other witnesses from the vicinity, have resiled and not supported the prosecution case. Only two material witnesses are left out, one being police officer K.V. Page 22 of 30 Downloaded on : Sun Sep 17 21:05:38 IST 2023 NEUTRAL CITATION R/CR.A/1251/1997 JUDGMENT DATED: 23/01/2023 undefined Mallikarjunappa (PW11) who is the author of the dying declaration, the investigating officer and the prosecutor. The second, and more crucial witness, is Dr. A. Thippeswamy (PW16), who was working in the P.H.C., Thalak at the relevant time. As per his deposition, the statement of the injured was taken in front of him and the patient was in a sound state of mind at that time. PW16 was the one who had informed the police regarding admission of Jayamma (the deceased victim) in the hospital, and in his crossexamination, he has admitted that painkillers were given immediately after admission. He has acknowledged that in a case of fourth degree burns the patient will be "delirious and in a period of confusion". He has not denied that due to painkillers there was bound to be drowsiness. He has also not denied that "hand, body was fully burnt" and that "hand includes the fingers". He has candidly owned up that the police did not take his written permission before recording the statement.
19. As regard to the version of K.V. Mallikarjunappa (PW11), he has deposed that he was the SHO of police station on the night when he received a phone call from Taluka Government Hospital at about 12:45 a.m. He went to the hospital and noticed Jayamma with burn injuries. According to him the doctor examined her and said that "she was in a position to talk", then the statement of Jayamma was taken in the presence of the doctor and after he put in his signatures, the medical officer also endorsed and signed it.
In his crossexamination, PW11 has stated that "Jayamma's son, daughterinlaw and one other person was also present....". He has, however, admitted that no written permission was sought or taken before recording the statement of the injured and that he "questioned Jayamma the injured, as to how it happened. Then she narrated about the incident.......... Jayamma the injured, narrated the details of the Page 23 of 30 Downloaded on : Sun Sep 17 21:05:38 IST 2023 NEUTRAL CITATION R/CR.A/1251/1997 JUDGMENT DATED: 23/01/2023 undefined accused persons. The thumb impression was taken since the said finger was not burnt"
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26. The Additional Session Judge, Chitradurga in his judgment dated 30.11.2001 formulated point no. 1 as to whether the prosecution was able to prove beyond all reasonable doubt that the accused persons with an intention to kill Jayamma went to her house and picked up a quarrel in connection with a previous dispute and then doused her with kerosene and set her ablaze. The Additional Sessions Judge extensively examined the entire evidence and after reaching to the conclusion that all the witnesses of the motive or the occurrence have resiled and declared hostile, he was left with the residuary question to decide as to whether the death was suicidal or homicidal. He, thereafter, considered the dying declaration (Ex. P-5) threadbare and critically analysed the statements of the police officer (PW-11) and the doctor (PW-16). The factors like (i) interpolation in the dying declaration Ex.P-5,
(ii) contradiction in the statements of PW-11 and PW-16 regarding injuries on the palm,
(iii) the victim with 80% injuries was apparently not in a situation to talk or give statement, (iv) PW-2, son of the deceased himself has stated that his mother committed suicide as she could not bear that her another son had been sent to jail, (v) there being no corroborative evidence to the statement Ex.P- 5, and (vi) there is no other evidence led by the prosecution to connect the appellants with the crime except the statement Ex.P-5, he held it unsafe to convict the appellants on the solitary basis of the dying declaration (Ex. P-5)."
26.3. In the case of Naresh Kumar (supra), the Hon'ble Supreme Court observed and held as under:
Page 24 of 30 Downloaded on : Sun Sep 17 21:05:38 IST 2023NEUTRAL CITATION R/CR.A/1251/1997 JUDGMENT DATED: 23/01/2023 undefined "8. The deceased had suffered 95% burn injuries at home on 17.09.1991 at about 4:30 pm while making tea. She was brought to Safdarjung Hospital at 6:00 pm. She is said to have initially told the police at the hospital that she had been set on fire by her husband.
The deceased was examined by the said Dr. Anant Sinha at about 6:00 pm and prepared her MLC. She is stated to have told him that she had been set on fire by the wife of her husband's elder brother while making tea. The MLC records her as being fully conscious. It is signed only by the Doctor who has not been examined. The deceased is then stated to have made a dying declaration before P.W. 25 that she was set on fire by respondent no.1 by pouring kerosene oil while she was making tea and that her husband had brought her to the hospital. It bears her right toe impression as her hands were burnt. The statement bears the signature of Dr. Anant Sinha. His signature has been proved by P.W. 19. But it does not bear any endorsement by the Doctor with regard to his presence during the recording of the same and the fit state of mind by the deceased to make the statement. P.W. nos. 3 and 4 have stated that the deceased told them that she was set on fire by respondent no.1. P.W. 5 has stated that both the respondents have killed his sister. He then states that the deceased had told him she was set on fire by respondent no.1.
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11. P.W. 25 who recorded the dying declaration does not state that the deceased was in a fit state of mind to make the statement. He states that the Doctor had certified fitness of mind of the deceased, when the dying declaration itself contains no such statement. In cross examination he acknowledges that the fitness of the deceased was certified by a resident junior doctor separately but whose signature and endorsement is not available on the dying declaration. At this stage it is relevant to Page 25 of 30 Downloaded on : Sun Sep 17 21:05:38 IST 2023 NEUTRAL CITATION R/CR.A/1251/1997 JUDGMENT DATED: 23/01/2023 undefined notice the statement of P.W. 19 who acknowledges that Dr. Anant Sinha has not signed in his presence and that at times doctors would come and put their signatures in the record room.
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13. In the facts and circumstances of the present case, considering that the statements of the deceased have vacillated, there is no evidence about the fitness of mind of the deceased to make the dying declaration including the presence of the Doctor, the veracity and truthfulness of the dying declaration remains suspect. It would not be safe to simply reject the probable defence of suicide, to reverse the acquittal and convict the respondents."
27. We have gone through the aforesaid decisions and we are of the view that the decisions upon which learned APP has placed reliance would not render any assistance to the case of the prosecution in the facts of the present case, as discussed hereinabove. It is true that only on the basis of the dying declaration of the deceased recorded by the Executive Magistrate in question and answer form, conviction can be recorded without any corroboration. However, in the aforesaid decision rendered by the Hon'ble Supreme Court in the case of Uttam (supra), the Hon'ble Supreme Court has specifically observed that normally the court, in order to satisfy whether deceased was in a fit mental condition to make the dying declaration, look up to the medical opinion. It is also observed that if the Court is satisfied that Page 26 of 30 Downloaded on : Sun Sep 17 21:05:38 IST 2023 NEUTRAL CITATION R/CR.A/1251/1997 JUDGMENT DATED: 23/01/2023 undefined the dying declaration is true and voluntary it can base conviction on it, without any corroboration.
28. In the present case, the learned Trial Court was not satisfied that the dying declaration which was recorded by the Dy. Executive Magistrate is true on the basis of the various discrepancies observed in the impugned judgment and order of acquittal passed by the learned Trial Court. Further, the concerned Doctor has not specifically stated about the fit mental condition of the patient to give the dying declaration. It is only after the dying declaration was recorded without examining the patient the said Doctor while sitting in chamber has made an endorsement that the patient is conscious on the basis of the presumption that after the patient was brought to the hospital at 3:20 p.m. till she was referred to Bhavnagar at 4:30 p.m. the nurse did not inform him about the condition of the patient that it is deteriorated.
29. We are also not satisfied with regard to the manner in which the dying declaration is recorded and mental condition of the patient to give dying declaration when she sustained 100% first, second and third degree burn injuries allover the body except two soles and when her condition was serious as per the case of the prosecution. Thus, simply relying Page 27 of 30 Downloaded on : Sun Sep 17 21:05:38 IST 2023 NEUTRAL CITATION R/CR.A/1251/1997 JUDGMENT DATED: 23/01/2023 undefined upon the dying declaration, conviction of the respondents - accused cannot be recorded.
30. It is a cardinal principle of criminal jurisprudence that in an acquittal appeal if other view is possible, then also, the appellate Court cannot substitute its own view by reversing the acquittal into conviction, unless the findings of the trial Court are perverse, contrary to the material on record, palpably wrong, manifestly erroneous or demonstrably unsustainable. (Ramesh Babulal Doshi V. State of Gujarat (1996) 9 SCC 225). In the instant case, the learned APP for the applicant has not been able to point out to us as to how the findings recorded by the learned trial Court are perverse, contrary to material on record, palpably wrong, manifestly erroneous or demonstrably unsustainable.
31. As observed by the Hon'ble Supreme Court in the case of Rajesh Singh & Others vs. State of Uttar Pradesh reported in (2011) 11 SCC 444 and in the case of Bhaiyamiyan Alias Jardar Khan and Another vs. State of Madhya Pradesh reported in (2011) 6 SCC 394, while dealing with the judgment of acquittal, unless reasoning by the learned trial Court is found to be perverse, the acquittal cannot be upset. It is further observed that High Court's interference in such appeal in somewhat circumscribed and if the view taken by the learned trial Court is possible on the Page 28 of 30 Downloaded on : Sun Sep 17 21:05:38 IST 2023 NEUTRAL CITATION R/CR.A/1251/1997 JUDGMENT DATED: 23/01/2023 undefined evidence, the High Court should stay its hands and not interfere in the matter in the belief that if it had been the trial Court, it might have taken a different view.
32. We have independently re-appreciated the evidence produced by the prosecution before the learned Trial Court and also examined the reasoning recorded by the learned Trial Court while passing the impugned judgment and order of acquittal and we are of the view that if in light of the above circumstances, the learned Trial Court felt that the accused could get the benefit of doubt, the said view cannot be held to be illegal, improper or contrary to law. Hence, even though we are of the opinion that in an appeal against acquittal, powers of appellate Court are as wide as that of the Trial Court and it can review, re-appreciate and reconsider the entire evidence brought on record by the parties and can come to its own conclusion on fact as well as on law, in the the facts and circumstances of the present case as discussed hereinabove, the view taken by the learned Trial Court for acquitting the accused was possible and plausible. Therefore, on the basis of evidence, even if it is to be assumed that the other view is equally possible, even then it is well settled and well-established that if two views are possible on the basis of evidence on record and one favourable to the accused has been taken by the learned Trial Court, it ought not to be disturbed by Page 29 of 30 Downloaded on : Sun Sep 17 21:05:38 IST 2023 NEUTRAL CITATION R/CR.A/1251/1997 JUDGMENT DATED: 23/01/2023 undefined the Appellate Court.
33. Considering the aforesaid facts and circumstances of the present case and the law laid down by the Hon'ble Supreme Court in the aforesaid decisions upon which reliance is placed by learned advocates appearing for the parties and while considering the scope of appeal under Section 378 of the Code, no case is made out for interference in the impugned judgment and order of acquittal passed by the concerned Trial Court. Accordingly, present appeal deserves to be dismissed and is, therefore, dismissed.
(VIPUL M. PANCHOLI, J) (HEMANT M. PRACHCHHAK,J) LAVKUMAR J JANI Page 30 of 30 Downloaded on : Sun Sep 17 21:05:38 IST 2023