Gujarat High Court
Jayshriben @ Kali D/O Shamjiyomal ... vs State Of Gujarat on 10 May, 2019
Bench: J.B.Pardiwala, A.C. Rao
R/CR.A/1152/2018 CAVJUDGMENT
IN THEHIGHCOURTOF GUJARATAT AHMEDABAD
R/CRIMINAL APPEALNO. 1152 of 2018
With
CRIMINAL MISC.APPLICATION (FOR SUSPENSION OF SENTENCE) NO. 2 of 2018
In R/CRIMINAL APPEAL NO. 1152 of 2018
FORAPPROVALANDSIGNATURE:
HONOURABLEMR.JUSTICEJ.B.PARDIWALA Sd/-
and
HONOURABLEMR.JUSTICEA.C. RAO Sd/-
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1 Whether Reporters of Local Papers may be allowed YES
to see the judgment ?
2 To be referred to the Reporter or not ? YES
3 Whether their Lordships wish to see the fair copy NO
of the judgment ?
4 Whether this case involves a substantial question NO
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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JAYSHRIBEN @ KALI D/O SHAMJIYOMAL SUNJANI (SINDHI)
Versus
STATE OF GUJARAT
==============================================================================
Appearance:
MR BB NAIK, SR.ADVOCATE with MR ASHISH M DAGLI for the Appellant(s)No. 1,2
MR HK PATEL, APP for the Opponent(s)/Respondent(s)No. 1
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CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
and
HONOURABLE MR.JUSTICE A.C. RAO
Date: 10/05/2019
CAVJUDGMENT
(PER: HONOURABLE MR.JUSTICE A.C. RAO) Page 1 of 63 Downloaded on : Mon Jun 24 23:12:50 IST 2019 R/CR.A/1152/2018 CAVJUDGMENT
1. The present Criminal Appeal No.1152 of 2018 has been preferred by the appellants-original accused nos.1 and 2, under Section 374(2) of the Code of Criminal Procedure, 1973 (for short, 'the Code'), challenging the legality, validity and propriety of the judgment and order of conviction and sentence dated 14.5.2017 passed by the Additional Sessions Judge, City Civil and Sessions Court, Court No.22, Ahmedabad, in the Sessions Case No.353 of 2014.
2. By the aforesaid judgment, the Sessions Judge convicted the appellants-original accused nos.1 and 2 for the offences punishable under Section 302 read with Section 114 of the Indian Penal Code and sentenced them to undergo life imprisonment with fine of Rs.10,000=00 each; and in default of payment of the amount of fine, to undergo rigorous imprisonment for a further period of six months.
3. Since the accused are convicted for the offence punishable under Section 302 of the Indian Penal Code, the Sessions Judge, however, did not pass any separate order of sentence for the offence punishable under Section 307 of the Indian Penal Code.
4. The appellants came to be acquitted by the Sessions Judge of the offences punishable under Section 498(A) read with Section 114 of the Indian Penal Code by giving them the benefit of doubt.
5. The Sessions Judge was pleased to grant the benefit of set- off as per Section 428 of the Code for the period during which the accused remained in jail as under-trial prisoners.
Page 2 of 63 Downloaded on : Mon Jun 24 23:12:50 IST 2019R/CR.A/1152/2018 CAVJUDGMENT 6. The Criminal Misc. Application No.2 of 2018 has been preferred by the accused-original appellant no.2, namely Raniben, Wd/o Hareshbhai Karshanbhai Vaghadia, under
Section 389 of the Code for suspension of sentence and to release her on bail during the pendency and final hearing of the main Criminal Appeal.
7. In such circumstances, with the consent of the learned counsel for the respective parties and as per the order passed in the Criminal Misc. Application No.2 of 2019 dated 19.3.2019, this Court heard the Appeal itself.
I. THE CASE OF THE PROSECUTION :
8. The first informant initially lodged an FIR being I-CR No.67 of 2014 on 1.5.2014 with the Sardarnagar Police Station, Ahmedabad, for the offences punishable under Sections 307, 323 and 314 of the Indian Penal Code. Later, as the injured died, the offence under Section 302 of the Indian Penal Code came to be added. In the FIR, it has been stated that the deceased complainant, namely Ushaben, married to one Akashbhai Shyamlal Sujlani nine years ago. It was a love marriage. The appellants-accused happens to be the sisters-in-law of the deceased. The appellants-accused frequently used to take up quarrel with the deceased and her husband on the issue of money.
9. It is alleged that two days prior to the date of the incident, an altercation took place between the accused and the deceased.
Page 3 of 63 Downloaded on : Mon Jun 24 23:12:50 IST 2019R/CR.A/1152/2018 CAVJUDGMENT It is alleged that the appellants-accused threatened the deceased that they will falsely implicate her mother, who is a Government servant, by filing false cases against her and will try to see that she is removed from the service. Thereafter, the matter was compromised.
10. It is alleged that on 30.4.2014 at about 20:00 hours in the night, when the deceased was alone at home, the appellants- accused had visited the deceased and informed her that her husband is demanding money. It is alleged that thereafter, the deceased-complainant told them that she would not intervene in their matter as the same was between own brother and sisters, i.e. her husband and sisters-in-law. She also told them not to harass her and her mother. The accused No.2 assaulted the deceased by holding her hairs and pulling her down. Thereafter, the accused No.1 sprinkled petrol on the deceased-complainant from a tin in her hand and set the deceased-complainant on fire. As the deceased-complainant sustained severe burn injuries, she was taken to a hospital for treatment. She was admitted in the burn-ward. On 1.5.2014, during the treatment she succumbed to the injuries, therefore, an offence under Section 302 of the Indian Penal Code came to be added subsequently.
11. After the registration of the FIR, the Investigating Officer commenced with the investigation, prepared the panchnama of the place of the occurrence and the inquest panchnama, sent the dead-body of the deceased for postmortem, recorded the statements of the witnesses and sent the samples to the FSL for analysis.
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12. On completion of the investigation, as there was sufficient evidence against the accused, the Investigating Officer filed the charge-sheet against both the accused persons under Section 173(2) of the Code in the court of the learned Judicial Magistrate. Thereupon, the case was registered as the Criminal Case.
13. As the case was exclusively triable by the Court of Sessions, the Judicial Magistrate committed the case to the Court of Sessions under Section 209 of the Code and the case was re-registered as the Sessions Case No.353 of 2014 in the City Civil and Sessions Court, Ahmedabad.
14. Thereafter, the Sessions Court framed the charge against the accused under Section 228(1)(B) of the Code for the offences punishable under Sections 302, 307, 498(A) read with Section 114 of the Indian Penal Code vide Exhibit-25 and the plea of the accused persons was recorded under Section 228(2) of the Code vide Exhibits-26 and 27.
15. The accused did not admit the charge and they claimed to be tried. Therefore, the trial court conducted the trial in accordance with law.
16. The prosecution adduced the following oral as well as documentary evidence in support of its case. In all, the prosecution examined 11 witnesses and relied upon the documentary evidence including the dying declaration.
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ORAL EVIDENCE
Witness Name Exhibit
No.
1. Indravarsinh Vajubha Rana - 28
Executive Magistrate
2. Dr.Manish Chimanlal Sutariya - 43
Doctor who performed the postmortem
3. Girishkumar Ambalal Pandya - 46
Police Officer who register the complaint 4. Asan @ Akko Shambhai Sujnani (Sindhi) - 55 Complainant's husband 5. Bhagwatiben Ishwarbhai Bhil - 57 Complainant's mother 6. Jayaben Avinashbhai Vagadia - 58 Complainant's sister 7. Urvish Umeshbhai Garange - 59 Panch Witness 8. Dipaben Sundarbhai Bhatia - 65 Panch Witness 9. Dashrathbhai Ramanbhai Rana - 70 Witness 10. Madhuben Dashrathbhai Rana - 71 Witness 11. Kanubhai Kishorbhai Patel - 73 Investigating Officer Page 6 of 63 Downloaded on : Mon Jun 24 23:12:50 IST 2019 R/CR.A/1152/2018 CAVJUDGMENT DOCUMENTARY EVIDENCE Sr. No. Description Exhibit
1. Yadi sent by the Police Officer, Sardarnagar, to 29 the Executive Magistrate to record the dying declaration.
2. Dying declaration of Ushaben Aakashbhai. 30
3. Postmortem examination report of Ushaben 44 Aakashbhai.
4. Police Yadi. 455. Yadi by the P.S.O. to register the complaint. 47 6. Complaint of Ushaben Aakashbhai. 48 7. Report by the Officer Incharge. 49
8. Inquest Panchnama of the dead-body of Ushaben 63 Aakashbhai.
9. Panchnama of the person of and clothes worn by 60 the accused - Raniben.
10. Panch - Slip. 61, 62
11. Panchnama of the person of and clothes worn by 66 the accused - Jayshreeben.
12. Panch - Slip. 67, 68 13. Wardhi of the Civil Hospital. 74 14. Panchname of the scene of offence. 75 Page 7 of 63 Downloaded on : Mon Jun 24 23:12:50 IST 2019 R/CR.A/1152/2018 CAVJUDGMENT 15. F.S.L. Report. 76 16. F.S.L. Analysis. 81
17. Thereafter, the statement of the accused came to be recorded under Section 313 of the Code, wherein the accused pleaded that they are innocent and falsely implicated in the offence.
18. After conclusion of the trial, the Additional Sessions Judge convicted both the accused-appellants for the offence punishable under Sections 302, 307 read with Section 114 of the Indian Penal Code and sentenced them to undergo life imprisonment with fine as aforesaid. Hence, both the accused have preferred the present Criminal Appeal No.1152 of 2018 challenging the impugned judgement and order of conviction and sentence.
II. SUBMISSIONS ON BEHALF OF THE APPELLANTS-
ACCUSED :
17. Mr.B.B.Naik, the learned senior counsel appearing with Mr.Ashish Dagli, the learned counsel for the appellants-original accused has made the following submissions :
[1] The trial court erred in convicting the appellants for the offence punishable under Sections 302, 307 read with Section 114 of the Indian Penal Code and imposing the sentence of life imprisonment. The trial court failed to Page 8 of 63 Downloaded on : Mon Jun 24 23:12:50 IST 2019 R/CR.A/1152/2018 CAVJUDGMENT appreciate that the case against the appellants is not proved beyond reasonable doubt. There is no cogent, convincing, reliable and sufficient evidence to convict the appellants. The trial court has convicted the accused misinterpreting the evidence on record. The conviction is against the evidence on record, against the provision of law and against the settled legal position.
[2] The trial court erred in convicting the appellants solely relying on the dying declaration of the deceased Ushaben. The dying declaration is not reliable and trustworthy and the same is not proved in accordance with law. There is inherent lacuna in the dying declaration.
[3] The trial court failed to appreciate the evidence on record that the dying declaration of the deceased Ushaben was recorded by the PW-1 Shri Indravarsinh Vajubha Rana, Executive Magistrate (Exh.28), on 1.5.2014 between 00.10 am. and 00.35 am., whereas the PW-1 has categorically admitted in his cross-examination that he received the yadi to record the dying declaration of the deceased in the hospital at 00:45 am. Thereafter, the FIR (Exh.48) was recorded by the PW-3 Police Sub-Inspector (Exh.46) at the Civil Hospital, Ahmedabad.
[4] The trial court failed to appreciate the evidence on record that Dr.Manoj Gera of the Civil Hospital, Ahmedabad, who treated the deceased, did not endorse that the deceased was fully conscious and was in a fit state of mind at the time of giving the dying declaration. This Page 9 of 63 Downloaded on : Mon Jun 24 23:12:50 IST 2019 R/CR.A/1152/2018 CAVJUDGMENT fact is also admitted by the PW-1 Executive Magistrate in his cross-examination. Dr.Manoj Gera is not examined as a witness. The medical papers as regards the treatment given to the deceased were also not placed on the record in support of the case of the prosecution.
[5] The trial court failed to appreciate the fact that the PW-2 Dr.Manish Sutariya, who performed the postmortem of the deceased Ushaben, admitted in his cross examination that the deceased was having 100% burn injuries and it was not possible for the deceased to give the dying declaration in such a situation. Therefore, the dying declaration is not reliable.
[6] The trial court failed to consider that there is no corroborative evidence to support the dying declaration and, therefore, the appellants-accused cannot be convicted merely on the basis of the dying declaration of the deceased Ushaben.
[7] The trial court failed to appreciate the fact that the prosecution has not proved by leading evidence on record that the accused had visited the house of the deceased and there is no eye-witness who have seen the appellants accused visiting the house of the deceased.
[8] The trial court failed to appreciate the fact that most of the witnesses, including the husband of the deceased, has not supported the case of the prosecution.Page 10 of 63 Downloaded on : Mon Jun 24 23:12:50 IST 2019
R/CR.A/1152/2018 CAVJUDGMENT [9] The trial court failed to appreciate the fact that the
PW-5 Bhagwatiben Ishwarbhai Bhil, who happens to be the mother of the deceased, has deposed in her evidence that Hemaben's son had informed her about the incident and thereafter when she, along with her daughter Jaya PW-6, reached at the house of the deceased Ushaben, her another sister-in-law named Hemaben was present and she was trying to extinguish the fire. She also sustained injuries. However, neither the statement of Hemaben's son is recorded nor he has been examined as the prosecution witness. Though the statement of Hemaben is recorded under Section 161 by the Investigating Officer, she has not been examined as the witness.
[10] The independent witnesses, namely the PW-7, PW-8, PW-9 and PW-10, who are the neighbours of the deceased, have not supported the case of the prosecution and they are declared hostile.
[11] There is no legal and admissible evidence to connect the accused with the alleged commission of offence.
[12] The trial court has erred in convicting the appellants accused on the basis of the dying declaration recorded by the PW-1 Indravarsinh Vajubhai Rana, Executive Magistrate, and the First Information Report recorded by the PW-3 Girishkumar Ambalal Pandya, PSI, though the same have not been proved as per law.
[13] The PW-5 Bhagawatiben, mother of the deceased, has admitted in her deposition that she was present all throughout with the deceased. She was present even at the Page 11 of 63 Downloaded on : Mon Jun 24 23:12:50 IST 2019 R/CR.A/1152/2018 CAVJUDGMENT time when the dying declaration and the first information report were being recorded. However, the Executive Magistrate and the PSI, who recorded the dying declaration and FIR respectively, have categorically stated that they had sent everyone outside the room when the dying declaration and the FIR respectively were being recorded.
[14] The dying declaration and the FIR are highly doubtful. There is every possibility and probability that they might have been recorded as per the say of the PW-5 Bhagwatiben, the mother of the deceased.
[15] The trial court has simply brushed aside the above infirmities in the evidence of the prosecution and convicted the accused solely relying upon the dying declaration and the FIR, though the same are highly doubtful and not reliable.
18. The learned counsel for the appellants relied on the following decisions :
[1] State of Gujarat v. Jayrajbhai Punjabhai Varu, reported in (2016)14 SCC 151;
[2] State of Maharashtra v. Hemant Kawadu Chauriwal, reported in (2015)17 SCC 598;
[3] Lashuben Chemabhai Chaudhary v. State of Gujarat, reported in (2013)2 G.L.H. 706;
[4] Somabhai Ganeshbhai Parmar v. State of Gujarat reported in (2012)3 G.L.H. 169;Page 12 of 63 Downloaded on : Mon Jun 24 23:12:50 IST 2019
R/CR.A/1152/2018 CAVJUDGMENT
[5] Pankaj v. State of Rajasthan, reported in 2017
CRI.L.J. 1076 and
[6] Dashrathbhai Mohanbhai Rathod v. State of Gujarat,
reported in (2014)3 GLR 2391.
19. In such circumstances referred to above, the learned counsel appearing for the appellants-accused prayed to allow this Appeal and to quash and set aside the impugned judgement and order of conviction and sentence passed by the learned Sessions Judge.
III. SUBMISSIONS ON BEHALF OF THE STATE :
20. The Appeal is opposed by Mr.Himanshu K.Patel, the learned APP appearing for the State. He has made the following submissions :-
[1] The prosecution has successfully proved the case beyond reasonable doubt, by leading cogent and convincing evidence.
[2] The prosecution witnesses have supported the case of the prosecution.
[3] The judgement and order of conviction and sentence passed by the trial court is based on true appreciation of evidence and the same is not perverse.
[4] No error, not to speak of any error of law, is said to have been committed by the trial court in convicting the appellants for the offence under Sections 302, 307 read Page 13 of 63 Downloaded on : Mon Jun 24 23:12:50 IST 2019 R/CR.A/1152/2018 CAVJUDGMENT with Section 114 of the Indian Penal Code and in imposing the sentence of life imprisonment upon the appellants- accused.
[5] There are two dying declarations of the deceased; one, in the form of the FIR, and another, recorded by the Executive Magistrate. Both are proved as per law and beyond reasonable doubt. Both the dying declarations are consistent with each other and there is no material contradictions in both the dying declarations.
[6] There was no reason for the deceased Ushaben to falsely implicate the appellants-accused.
[7] The dying declaration was recorded by the Executive Magistrate and since the deceased had burn injuries and was not in a position to put her thumb impression, her toe impression was obtained on the dying declaration. Even the doctor who performed the postmortem found the ink on the toe of the deceased.
[8] The Executive Magistrate, who recorded the dying declaration of the deceased, is an independent witness and he has deposed in his evidence that nobody was present at the time when the dying declaration was being recorded, therefore, there is no reason to disbelieve his deposition.
[9] For the sake of argument, even if it is presumed without admitting the same, that the mother of the deceased was present, there is no cross-examination of the Page 14 of 63 Downloaded on : Mon Jun 24 23:12:50 IST 2019 R/CR.A/1152/2018 CAVJUDGMENT mother of tutoring the deceased for recording the dying declaration.
[10] The FIR and the dying declaration are consistent and and reliable and they have not been given due to enmity or vengeance. On perusing the same, it could be made out that the same are given in normal course. If the deceased wanted to falsely implicate all the members of the family, she could have implicated all of them including her husband, mother-in-law and brother-in-law. However, the deceased has not named them, which shows the reliability and trustworthiness of the same.
[11] The mother of the deceased, i.e. the PW-5, and the other witnesses have supported the case of the prosecution. There are ample evidence against the accused.
21. In such circumstances, Mr.Patel, the learned APP appearing for the State, submitted that no interference is warranted in this Appeal, and there being no merit in the Appeal, the same same deserves to be dismissed.
22. Considering the overall evidence on record, the following facts emerge :-
(1) The PW-1, i.e. the Executive Magistrate, deposed in his evidence that he received a yadi from the Sardarnagar Police Station, Ahmedabad, for recording a dying declaration, wherein there was endorsement of the doctor that the patient is conscious. The endorsement was made Page 15 of 63 Downloaded on : Mon Jun 24 23:12:50 IST 2019 R/CR.A/1152/2018 CAVJUDGMENT at 11:10 p.m. on 30.4.2011. The Executive Magistrate started recording the dying declaration at 00:10 am. On 1.5.2014. In the dying declaration recoded by the Executive Magistrate, the deceased Ushaben stated that the incident took place at her home and she was pushed and beaten by her sister-in-law, i.e. the appellant No.2, and the appellant No.1 poured kerosene on her and set her on fire. She stated in the dying declaration that she was mentally tortured by both the appellants. In all, sixteen questions were put to Ushaben, and after recording the dying declaration, the Executive Magistrate read over the same to the deceased Ushaben. The Executive Magistrate deposed in his evidence that both the hands of Ushaben were covered with bandages and it was not possible to obtain her thumb impression, therefore, he took the right toe impression of the deceased Ushaben on the dying declaration recorded by him. Thereafter, he endorsed that the patient was fully conscious. According to the Executive Magistrate, the relatives of the patient were not present at the time when the dying declaration was being recorded.
The Executive Magistrate, in his evidence, deposed that the dying declaration was written by him in his own handwriting. The dying declaration was produced at Exh.28. The Executive Magistrate, in his cross- examination, admitted that he had not obtained any endorsement from the doctor as regards the consciousness and mental fitness of the patient and whether the patient was capable to understand the questions put to her and give a statement. He admitted in his evidence that the treatment was already started before he could reach the Page 16 of 63 Downloaded on : Mon Jun 24 23:12:50 IST 2019 R/CR.A/1152/2018 CAVJUDGMENT hospital and, therefore, he could not inquire about the treatment.
(2) The PW-2 Dr.Manish Chimanlal Sutariya, i.e. the Medical Officer who performed the postmortem of the deceased Ushaben, deposed in his evidence that the whole body of the deceased was covered with bandages. She had sustained 100% burn injuries. There was an ink mark on the right toe of the deceased. He admitted that the injuries were painful, therefore, painkiller drugs might have been administered on the deceased. The postmortem report is produced at Exh.44.
(3) The PW-3 Girishkumar Ambalal Pandya, i.e. the Police Sub-Inspector of the Sardarnagar Police Station, Ahmedabad, who recorded the FIR, deposed in his evidence that on 30.4.2014 at 21:00 hours, he received a yadi from the Police Sub-Inspector, wherein he was asked to register the FIR. The said yadi is produced at Exh.47. He has deposed that he arranged for the recording of the dying declaration and wrote a yadi for the same, which is produced at Exh.29. He has deposed that he wrote the FIR as dictated by Ushaben. He has deposed that as per say of the complainant, an altercation took place between the appellants and Ushaben. One of the appellants caught hold of Ushaben and the another poured petrol over her body. He stated that the complaint was written in his own handwriting. The PW-3 also identified the right toe impression of the deceased Ushaben. He deposed that complaint is produced at Exh.48. He admitted that when Page 17 of 63 Downloaded on : Mon Jun 24 23:12:50 IST 2019 R/CR.A/1152/2018 CAVJUDGMENT the deceased complainant was in the hospital, her relatives were near her bed. The treatment was going on and her body was covered with bandages. He admitted that he had not obtained any endorsement of the doctor that the patient was conscious and he did not inquire with the doctor as to what treatment and which medicines were being given to the victim. He denied all other questions put to him in his cross-examination.
(4) The PW-5 Bhagwatiben Ishwarbhai Bhil, i.e. the mother of the deceased, deposed in her evidence that after the death of her husband, she was appointed on compassionate ground in the BSNL. She stated that Usha was her daughter and was married to Aakashbhai Sujlani. She deposed that on 30.4.2014 at about 10:00 a.m. to 11:30 a.m. an altercation took place between the appellants-accused and her daughter and the appellants- accused threatened her daughter that if she could not pursue her husband for money, they will file criminal case against her mother and falsely implicate her and she will lose her job from the BSNL. She deposed that at about 8:00 p.m. to 8:30 p.m., Hemaben's son had informed that Usha is set on fire by the appellants-accused. Therefore, she called her daughter Jaya and they both reached the house of the deceased. Usha was lying on the bed in a burnt condition and she was covered with a blanket. Thereafter, a 108-Ambulance was called and Usha was taken to the hospital. She further deposed that when she asked Usha as to how she sustained the burn injuries, she informed that both the appellants-accused had pushed her Page 18 of 63 Downloaded on : Mon Jun 24 23:12:50 IST 2019 R/CR.A/1152/2018 CAVJUDGMENT in the bathroom and after pouring kerosene, they set her on fire. Thereafter they both run away from the house. The PW-5, i.e. the mother of the deceased, further deposed that the dying declaration was recorded by the Executive Magistrate and the complaint was also registered by the police. Thereafter, at about 5:00 a.m., her daughter Usha died. She admitted in her cross examination that she was constantly present with her daughter when the dying declaration was being recorded by the Executive Magistrate. She admitted that many cases have been registered against her son-in-law as he is involved in antisocial activities. She denied the suggestion put to her that her daughter was not in a conscious state of mind when the dying declaration was being recorded by the Executive Magistrate and that she has not given the dying declaration before the Executive Magistrate. She also denied the suggestion put to her that her daughter had not informed her anything about the incident.
(5) The PW-6 Jayaben Avinashbhai Vagadia, i.e. sister of the deceased Ushaben, supported the case of the prosecution and she deposed on the line of deposition made by the PW-5 Bhagwatiben, i.e. her mother.
(6) The PW-7 and 8 are the Panch-Witnesses to the panchnama of the recovery of the clothes of the deceased which the deceased had worn at the time of incident. They did not support the case of the prosecution and have turned hostile.
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(7) The PW-9 and 10 are the neighbours of the deceased.
They too did not support the case of the prosecution and have turned hostile.
(8) The PW-11 Kanubhai Kishorbhai Patel, is the Police Inspector of the Sardarnagar Police Station, Ahmedabad, who conducted the investigation. He narrated the facts in details in his deposition, i.e. from filing of the FIR till the completion of the charge-sheet.
23. From the above evidence on record, it is clear that the case of the prosecution hinges on the two dying declarations of the deceased, namely the FIR given by the deceased and the dying declaration given by the deceased before the Executive Magistrate.
24. We agree with the submission of the learned counsel for the appellants-accused that there is no endorsement of the doctor on the dying declaration recorded by the Executive Magistrate that the deceased Ushaben was conscious at the time of recording of the dying declaration. However, there is AN endorsement of the Executive Magistrate on the dying declaration that the deceased was completely conscious and in a fit state of mind and was able to speak and understand the questions put to her at the time of recording of the dying declaration. Under the circumstances, there is no substance in the contention raised by the learned counsel for the appellants- accused that since there is no endorsement of the doctor on the dying declaration that the patient was conscious at the time of recording of the dying declaration, the dying declaration cannot Page 20 of 63 Downloaded on : Mon Jun 24 23:12:50 IST 2019 R/CR.A/1152/2018 CAVJUDGMENT be relied upon, and on that basis, the appellants cannot be convicted. As per the settled legal position, the endorsement of the Executive Magistrate on the dying declaration that the patient was conscious, is enough and in absence of the endorsement by the doctor that the patient was conscious, the same would not be fatal to the case of the prosecution.
25. One of the arguments of the learned counsel for the appellants-accused is that the deceased had sustained 100% burn injuries and, therefore, it would not have been possible for her to speak or to give either the FIR or the dying declaration. Therefore, both the dying declarations, i.e. the FIR before the police and the dying declaration before the Executive Magistrate, are doubtful and not reliable. They have not been given by the deceased. In this regard, we may rely upon a decision rendered in the case of Vijay Pal v. State (Government of NCT of Delhi), reported in (2015)4 SCC 749. After referring to the Constitution Bench decision in Laxman v. State of Maharashtra, AIR 2002 SC 2973 and the two-Judge Bench decisions in Babulal v. State of M.P., AIR 2004 SC 846 and Prakash v. State of M.P., AIR 1993 SC 65, the Supreme Court held thus:
"22. Thus, the law is quite clear that if the dying declaration is absolutely credible and nothing is brought on record that the deceased was in such a condition, he or she could not have made a dying declaration to a witness, there is no justification to discard the same. In the instant case, PW 1 had immediately rushed to the house of the deceased and she had told him that her husband had poured kerosene on her. The plea taken by the appellant that he has been Page 21 of 63 Downloaded on : Mon Jun 24 23:12:50 IST 2019 R/CR.A/1152/2018 CAVJUDGMENT falsely implicated because his money was deposited with the in-laws and they were not inclined to return, does not also really breathe the truth, for there is even no suggestion to that effect.
23. It is contended by the learned counsel for the appellant that when the deceased sustained 100% burn injuries, she could not have made any statement to her brother. In this regard, we may profitably refer to the decision in Mafabhai Nagarbhai Raval v. State of Gujarat, (1992) 4 SCC 69 wherein it has been held that a person suffering 99% burn injuries could be deemed capable enough for the purpose of making a dying declaration. The Court in the said case opined that unless there existed some inherent and apparent defect, the trial court should not have substituted its opinion for that of the doctor. In the light of the facts of the case, the dying declaration was found to be worthy of reliance."
26. In the case of State of M.P. v. Dal Singh, reported in (2013)14 SCC 159 and in the case of Ramesh v. State Of Haryana, reported in 2017 (1) SCC 529, a two-Judge Bench placed reliance on the dying declaration of the deceased who had suffered 100% burn injuries on the ground that the dying declaration was found to be credible.
27. We do not find any substance in the argument of the learned counsel for the appellants-accused that the dying declaration recorded by the Executive Magistrate does not bear the endorsement of the doctor that the patient was conscious, therefore, the same is not reliable.
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28. The Supreme Court, in the case of Narender Kumar v. State of National Capital Territory of Delhi, reported in 2015(17) SCC 451, has observed and held as under :-
"10. Having noted the above uncontroverted facts, when we examine the defence canvassed on behalf of the appellants, according to them PW-7/C the dying declaration cannot be relied upon for various defects. It was contended that the identity of the deceased was not verified by the learned Metropolitan Magistrate PW-7. Insofar as the said stand is concerned, when we peruse the evidence of PW-7 the learned Magistrate, we find that he has stated that PW-12 Dr. Nayar identified the patient to him though he had not obtained the identification of the patient in writing from PW-
12. That apart, in the initial part of the evidence he has narrated as to how PW-2 the Assistant Sub-Inspector of Police approached him to record the dying declaration of the deceased, that he was accompanied by PW-2 to the hospital, that he was taken to the patient thereafter, namely, the deceased Laxman Singh s/o of Huba Singh and after preliminary orientation and after satisfying himself that the patient was fully conscious and was capable of making the statement and making an endorsement vide PW- 7/D and also after getting it endorsed it by PW-12 he proceeded to record exhibit PW-7/C, the dying declaration of the deceased.
11. Having noted the above detailed statement made by PW- 7 learned Metropolitan Magistrate, we have no doubt in our Page 23 of 63 Downloaded on : Mon Jun 24 23:12:50 IST 2019 R/CR.A/1152/2018 CAVJUDGMENT mind about the verification of the identity of the patient/deceased and, therefore, we do not find any substance in the said submission."
29. In the case of Koli Chunilal Savji and another v. State of Gujarat, reported in AIR 1999 SC 3695, the Supreme Court was considering the question as to whether in the absence of a doctor's certificate as regards the mental fitness of the person to make a statement, would it not be reliable ? The Supreme Court held that the requirement of such endorsement is only a matter of prudence and the ultimate test is whether the dying declaration is voluntary and truthful. Before recording the dying declaration, the officer concerned must find that the declarant was in a fit state of mind to make the statement and if the Magistrate is satisfied about the condition of the patient to make the statement, such statement can be relied upon.
30. In the case of Laxman v. State of Maharasthra, reported in AIR 2002 SC 2973, a Constitution Bench of the Supreme Court had the occasion to consider similar aspect regarding the veracity of the dying declaration where the doctor's certificate regarding the fitness of a person had not been taken. The Supreme Court held that if the person recording the statement is satisfied that the person was fit, then the veracity of the declaration will not be questioned. The Supreme Court, in Paparambaka Rosamma and Ors. v. State of Andhra Pradesh, AIR 1999 SC 3455, held that the view taken about getting the doctor's certificate on the state of mind of the patient to make a statement would be a hyper-technical view, particularly when the Magistrate stated that the patient was in a fit state of mind Page 24 of 63 Downloaded on : Mon Jun 24 23:12:50 IST 2019 R/CR.A/1152/2018 CAVJUDGMENT and where after he recorded the dying declaration. The Supreme Court further held that where the Magistrate had ascertained from the doctor whether the victim was in a fit state of mind to make the statement and obtained an endorsement to that effect, merely because the endorsement was not made on the dying declaration but on the application, it would not render the dying declaration suspicious in any manner.
31. In the case of Laxman v. State of Maharashtra, reported in AIR 2002 SC 2973, a Five-Judge bench of the Supreme Court has further observed and held as under :-
"5. The court also in the aforesaid case relied upon the decision of this Court in Harjeet Kaur V/s. State of Punjab, 1999 (6) SCC 545 case wherein the magistrate in his evidence had stated that he had ascertained from the doctor whether she was in a fit condition to make a statement and obtained an endorsement to that effect and merely because an endorsement was made not on the declaration but on the application would not render the dying declaration suspicious in any manner. For the reasons already indicated earlier, we have no hesitation in coming to the conclusion that the observations of this court in Paparambaka Rosamma and others V/s. State of Andhra Pradesh, 1999 (7) SCC 695 to the effect that ".........in the absence of a medical certification that the injured was in a fit state of mind at the time of making the declaration, it would be very much risky to accept the subjective satisfaction of a magistrate who opined that the injured was in a fit state of mind at the time of making a declaration"Page 25 of 63 Downloaded on : Mon Jun 24 23:12:50 IST 2019
R/CR.A/1152/2018 CAVJUDGMENT has been too broadly stated and is not the correct enunciation of law. It is indeed a hyper-technical view that the certification of the doctor was to the effect that the patient is conscious and there was no certification that the patient was in a fit state of mind specially when the magistrate categorically stated in his evidence indicating the questions he had put to the patient and from the answers elicited was satisfied that the patient was in a fit state of mind where after he recorded the dying declaration. Therefore, the Judgement of this court in Paparambaka Rosamma and others V/s. State of Andhra Pradesh, 1999 (7) SCC 695 must be held to be not correctly decided and we affirm the law laid down by this Court in Koli Chunilal Savji and another V/s. State of Gujarat, 1999 (9) SCC 562 case :
1999 Cri.LJ 4055."
32. The law on the dying declaration is not res-integra. It will be useful to reproduce a passage from Babulal and others v. State of M.P. reported in (2003)12 SCC 490, wherein the value of dying declaration in evidence has been stated:
"7. ... A person who is facing imminent death, with even a shadow of continuing in this world practically non-existent, every motive of falsehood is obliterated. The mind gets altered by most powerful ethical reasons to speak only the truth. Great solemnity and sanctity is attached to the words of a dying person because a person on the verge of death is not likely to tell lies or to concoct a case so as to implicate an innocent person. The maxim is "a man will not meet his Maker with a lie in his mouth" (nemo moriturus praesumitur Page 26 of 63 Downloaded on : Mon Jun 24 23:12:50 IST 2019 R/CR.A/1152/2018 CAVJUDGMENT mentire). Mathew Arnold said, " truth sits on the lips of a dying man". The general principle on which the species of evidence is admitted is that they are declarations made in extremity, when the party is at the point of death, and when every hope of this world is gone, when every motive to falsehood is silenced and mind induced by the most powerful consideration to speak the truth; situation so solemn that law considers the same as creating an obligation equal to that which is imposed by a positive oath administered in a court of justice. ..."
33. While dealing with the oral dying declaration, the Supreme Court, in the case of Prakash and another v. State of Madhya Pradesh, reported in (1992)4 SCC 225, ruled thus:
"11. ... In the ordinary course, the members of the family including the father were expected to ask the victim the names of the assailants at the first opportunity and if the victim was in a position to communicate, it is reasonably expected that he would give the names of the assailants if he had recognized the assailants. In the instant case there is no occasion to hold that the deceased was not in a position to identify the assailants because it is nobody's case that the deceased did not know the accused persons. It is therefore quite likely that on being asked the deceased would name the assailants. In the facts and circumstances of the case the High Court has accepted the dying declaration and we do not think that such a finding is perverse and requires to be interfered with. ..."Page 27 of 63 Downloaded on : Mon Jun 24 23:12:50 IST 2019
R/CR.A/1152/2018 CAVJUDGMENT 34. In the case of Shama v. State of Haryana, reported in
(2017)11 SCC 535, the Supreme Court held as under :-
"30. Dying declaration made by the deceased is admissible in evidence under Section 32(1) of the Evidence Act, 1872. In the absence of any kind of infirmity or/and suspicious circumstances surrounding its execution, once it is proved in evidence in accordance with law, it can be relied on for convicting an accused even in the absence of corroborative evidence but with a rule of prudence that it should be so done with extreme care and caution. (See Panchdeo Singh v. State of Bihar)
31. One of the principles which is always kept in mind while examining the dying declaration of the deceased is that "a man will not meet his Maker with a lie in his mouth". As aptly said by Mathew Arnold in a very old English case (see Lyre LCR in R. v. Woodcock) "Truth sits on the lips of a dying man". This principle is deduced from a well-known Latin legal maxim "nemo moriturus praesumitur mentire".
32. We are not impressed by the submission of the learned counsel for the appellant when he urged that the dying declaration is bad because it was recorded by the Inspector and not by any Magistrate.
33. In our considered opinion, firstly, the law does not prescribe any format for recording dying declaration; and secondly, it also does not prescribe any specific authority to record it unless any special law or rule is enacted to that Page 28 of 63 Downloaded on : Mon Jun 24 23:12:50 IST 2019 R/CR.A/1152/2018 CAVJUDGMENT effect. No such rule was brought to the notice of the courts below and here also. On the other hand, we find that perfect working and neatly structured dying declaration at times brings about an adverse impression and creates suspicion in the mind of the court since the dying declaration need not be drawn with mathematical precision.
34. All that the law requires is that the declarant should be in a fit state of mind and be able to recollect the situation resulting in the available state of affairs in relation to the incident and the Court should be satisfied that the reliance ought to be placed thereon rather than distrust.
35. We have not been able to notice any kind of illegality in recording the dying declaration by the Inspector as urged by the learned counsel for the appellant. As observed supra, the Inspector concerned before recording the statement had got the deceased medically examined by the doctor and it was only after the doctor certified that the deceased was in fit state of mind to speak, his dying declaration was recorded. In the absence of any other suspicious circumstances surfacing the dying declaration, it is not possible to discard the dying declaration only on this ground."
35. In the case of State of Gujarat v. Jayrajbhai Punjabhai Varu, reported in (2016) 14 SCC 151, the Supreme Court held as under :-
"15. The courts below have to be extremely careful when they deal with a dying declaration as the maker thereof is Page 29 of 63 Downloaded on : Mon Jun 24 23:12:50 IST 2019 R/CR.A/1152/2018 CAVJUDGMENT not available for the cross-examination which poses a great difficulty to the accused person. A mechanical approach in relying upon a dying declaration just because it is there is extremely dangerous. The court has to examine a dying declaration scrupulously with a microscopic eye to find out whether the dying declaration is voluntary, truthful, made in a conscious state of mind and without being influenced by the relatives present or by the investigating agency who may be interested in the success of investigation or which may be negligent while recording the dying declaration.
16. In the case on hand, there are two sets of evidence, one is the statement/declaration made before the police officer and the Executive Magistrate and the other is the oral dying declaration made by the deceased before her father who was examined as PW 1. On a careful scrutiny of the materials on record, it cannot be said that there were contradictions in the statements made before the police officer and the Executive Magistrate as to the role of the respondent herein in the commission of the offence and in such circumstances, one set of evidence which is more consistent and reliable, which in the present case being one in favour of the respondent herein, requires to be accepted and conviction could not be placed on the sole testimony of PW 1.
17. A number of times the relatives influence the investigating agency and bring about a dying declaration. The dying declarations recorded by the investigating agencies have to be very scrupulously examined and the Page 30 of 63 Downloaded on : Mon Jun 24 23:12:50 IST 2019 R/CR.A/1152/2018 CAVJUDGMENT court must remain alive to all the attendant circumstances at the time when the dying declaration comes into being. In case of more than one dying declaration, the intrinsic contradictions in those dying declarations are extremely important. It cannot be that a dying declaration which supports the prosecution alone can be accepted while the other innocent dying declarations have to be rejected. Such a trend will be extremely dangerous. However, the courts below are fully entitled to act on the dying declarations and make them the basis of conviction, where the dying declarations pass all the above tests.
18. The court has to weigh all the attendant circumstances and come to the independent finding whether the dying declaration was properly recorded and whether it was voluntary and truthful. Once the court is convinced that the dying declaration is so recorded, it may be acted upon and can be made a basis of conviction. The courts must bear in mind that each criminal trial is an individual aspect. It may differ from the other trials in some or the other respect and, therefore, a mechanical approach to the law of dying declaration has to be shunned."
36. In the case of State of Maharashtra v. Hemant Kawadu Chauriwal, reported in (2015) 17 SCC 598, the Supreme Court observed thus :
"8. In our considered opinion, two main arguments have been advanced before this Court and we shall now examine each and every contention in light of the arguments adduced before us. It is a settled law that dying declaration can be Page 31 of 63 Downloaded on : Mon Jun 24 23:12:50 IST 2019 R/CR.A/1152/2018 CAVJUDGMENT the sole basis of conviction and it does not require any corroboration. But it is equally true that dying declaration goes against the cardinal principle of law that "evidence must be direct". Thus, dying declaration must be judged and appreciated in light of the surrounding circumstances and its weight determined by reference to the principle governing the weighing of evidence. In the present case, dying declaration was recorded by the Naib Tahsildar after she was informed vide a memo by the police authorities. However, it is on record that the said police official who delivered the memo was never produced or examined before the court. The Naib Tahsildar deposed before the court that fitness certificate as to mental capacity of the deceased was taken from the doctor. However, the certificate nowhere states that the deceased was in a fit and stable mental condition at the time of making the statement. The dying declaration was recorded on 20-6-2004 i.e. the same day of incident but the same was recorded at 5.45 p.m. and it is undisputed that the incident occurred in the morning at 8.00 a.m. The Naib Tahsildar specifically deposed that she ordered the blood relation of the deceased to be removed from the ward. The dying declaration was signed by the Naib Tahsildar, PW 1; the doctor, PW 5 and thumb impression of the deceased was taken at about 5.55 p.m. The dying declaration then formed the basis of the FIR lodged on 21-6-2004 at Ghatanji Police Station, however, there is no explanation as to in whose custody the said crucial piece of evidence was placed for one full day. The prosecution did not give any evidence to explain the said delay.Page 32 of 63 Downloaded on : Mon Jun 24 23:12:50 IST 2019
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9. The second issue which is of paramount consideration is the alleged letters written by the deceased to her father, which were argued to be in her own handwriting. PW 3 himself deposed that he only produced a few letters which helped his case. Further, he himself testified that the letters were written by the deceased in her own handwriting as was known to him. The prosecution, however, had a duty to establish the veracity of such an important piece of evidence. The prosecution explained that it was unable to find the handwriting of the deceased by any other means. However, it is not explained as to what steps were taken to investigate the said evidence in the case. Another important fact which is on record is that while recording the dying declaration, the Naib Tahsildar deposed that the deceased was illiterate and the dying declaration was read over and explained to her. These two facts are self-contradictory and severely detrimental to the prosecution case which ought to have been explained by the prosecution.
10. Apart from the above two pivotal facts, the testimonies of PW 3 (father of the deceased), PW 4 (mother of the deceased) and PW 5 (investigating officer) are worth considering. PW 3 and PW 4 both deposed that the deceased used to narrate about the incidents of cruelty committed upon her. Physical beating after the 12th day of the marriage was deposed, the taunt which the deceased used to face for not cooking well, the rationing on edible items, etc. However, when the cross-examination was made, these witnesses have not stated these facts to the police Page 33 of 63 Downloaded on : Mon Jun 24 23:12:50 IST 2019 R/CR.A/1152/2018 CAVJUDGMENT and it was only before the court that such material improvements were made to support the prosecution case.
11. The investigating officer seemed to have deliberately or negligently erred in investigating the case. The case was of burn injuries, there ought to have effect of the incident in the house, the place of occurrence was an important fact, the seizure of surrounding material was also important. However, no such efforts were made. Even the handwriting of the deceased was not investigated. In the light of the above, the defence deposed before the court that the deceased locked herself in the bathroom, poured kerosene and set herself on fire. It was further stated that the accused had to break open the door and then the deceased was taken to the hospital. The investigating officer could have easily located the place of occurrence or even a broken door or lock. The probability here, tilts in favour of the accused that possibility of suicide being committed by the deceased cannot be ruled out completely.
12. In our opinion, the two pivotal evidence i.e. dying declaration and the alleged letters having not been proved, strikes at the very root of the prosecution case. We are, therefore, of the view that the High Court rightly pointed out the lacunae in the shabby investigation of the case. Moreover, the prosecution failed to stand its ground and bring home its case."
37. In the case of Lashuben Chemabhai Chaudhary v. State of Gujarat, reported in (2013)2 G.L.H. 706, one of us (Justice J.B. Pardiwala) observed and held as under :-
Page 34 of 63 Downloaded on : Mon Jun 24 23:12:50 IST 2019R/CR.A/1152/2018 CAVJUDGMENT "7.1. 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. State of Gujarat, reported in (1992)2 SCC 474 (SCC pp.480-81, 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) Supreme 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].
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(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 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 tatement 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].
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(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] 7.2. In Puran Chand v. State of Haryana, (2010) 6 SCC 566, the Supreme Court once again reiterated the abovementioned principles.
7.3. In Panneerselvam v. State of Tamil Nadu, (2008) 17 SCC 190, a Bench of three Judges of the Supreme Court reiterating various principles mentioned above, held that it cannot be laid down as an absolute rule of law that the Dying Declaration cannot form the sole basis of the conviction unless it is corroborated and the rule requiring corroboration is merely a rule of prudence."
38. In the case of Somabhai Ganeshbhai Parmar v. State of Gujarat reported in (2012)3 G.L.H. 169, one of us (Justice J.B. Pardiwala) observed and held as under :-
"46. 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. State of Gujarat, reported in (1992)2 SCC 474 (SCC pp.480- 81, para 18) :Page 37 of 63 Downloaded on : Mon Jun 24 23:12:50 IST 2019
R/CR.A/1152/2018 CAVJUDGMENT "(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) Supreme 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 v. State of U.P., (1981)2 SCC 654] Page 38 of 63 Downloaded on : Mon Jun 24 23:12:50 IST 2019 R/CR.A/1152/2018 CAVJUDGMENT
(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 39 of 63 Downloaded on : Mon Jun 24 23:12:50 IST 2019 R/CR.A/1152/2018 CAVJUDGMENT
47. In Puran Chand v. State of Haryana, (2010)6 SCC 566, this Court once again reiterated the above mentioned principles.
48. In Panneerselvam v. State of Tamil Nadu, (2008)17 SCC 190, a Bench of three Judges of the Supreme Court reiterating various principles mentioned above, held that it cannot be laid down as an absolute rule of law that the dying declaration cannot form the sole basis of the conviction unless it is corroborated and the rule requiring corroboration is merely a rule of prudence."
39. In the case of Pankaj v. State of Rajasthan, reported in 2017 CRI.L.J. 1076, the Supreme Court observed and held as under :-
"7. It is evident from material on record that when Raj Kumar was shot at, he was taken to the General Hospital, Bharatpur wherefrom he was transferred to Agra for further treatment. The dying declaration of Raj Kumar was allegedly recorded at 10:45 p.m. on 19.03.2008 at Agra by Shri Naresh Pal Gangwal, who was the then SDM. Dr. Vanay Singh (PW-6), who first examined the body of the deceased at the General Hospital categorically stated in his statement that he was unconscious when he was brought to the hospital at 12:45 p.m. The dying declaration is also alleged to have been recorded on the said date at 10:45 p.m. It is really very hard to believe that Raj Kumar, who was unconscious in the noon, regained consciousness in Page 40 of 63 Downloaded on : Mon Jun 24 23:12:50 IST 2019 R/CR.A/1152/2018 CAVJUDGMENT front of SDM that too in the absence of certificate of the duty doctor that the patient is fit to make a statement. In view of such infirmities in the dying declaration, we are of the opinion that the High Court has rightly discarded the same. It has already been held by this Court in a catena of cases that when a dying declaration is suspicious, it should not be acted upon without corroborative evidence."
40. In the case of Smt. Paniben v. State of Gujarat, reported in AIR 1992 S.C. 1817, the Supreme Court observed and held as under :-
"21. It is important to note to the specific question as to whether she was sleeping alone or someone else was also with her, she replied that her husband had gone to the wadi and she was sleeping alone.
22. It is equally important to note that the parents of the deceased reached the hospital only round about 7.30 a.m. Hence there is no possibility of she being tutored, prompted as to utter falsehood, so as to implicate the accused. It is also clear that at that time when she made the statement, she was in a fit mental condition to make the statement.
23. The third oral dying declaration was made by the deceased to her father Jadav. The deceased told him that her mother-in-law had burnt her. Jadav impressed the High Court as a truthful witness because he did not want to fall in line with the narration of the police in which minor details were attributed to him. We also on going through the evidence of Jadav are fully impressed with the same.Page 41 of 63 Downloaded on : Mon Jun 24 23:12:50 IST 2019
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24. As rightly held by the High Court the fourth dyng declaration Ex. 34 stated to have been recorded by the police Sub-Inspector Tavde has to be discarded. Thus, we are clearly of the opinion the High Court was fully justified in accepting the dying declarations because they answer every test which is required to be applied for such acceptance.
25. We concur with the High Court in reversing the findings of the learned Sessions Judge as to why the deceased could not try to run and catch the miscreant and allow her clothes to burn. Equally, we agree with the High Court with regard to the other infirmities including not informing the husband. The theory of suicide has been rightly rejected by the High Court. As was pointed out a tender lass after only five years of married life with an affectionate husband and a young daughter to foster could not have resorted to that rash act merely because there were quarrels between her and her mother-in-law. In every house it is proverbial that such quarrels do take place. It is impossible to contend that the deceased was so much frustrated in life so as to commit suicide.
26. In the result, we have no hesitation in upholding the conviction"
41. In the case of Dashrathbhai Mohanbhai Rathod v. State of Gujarat, reported in 2014 (3) GLR 2391, one of us (Justice J.B. Pardiwala) observed and held as under :-
Page 42 of 63 Downloaded on : Mon Jun 24 23:12:50 IST 2019R/CR.A/1152/2018 CAVJUDGMENT "54. We have no reason even to disbelieve the two dying declarations; first, before the Investigating Officer at the time of recording of the F.I.R. and, at a later stage, the dying declaration recorded by the Executive Magistrate. Nothing substantial could be elicited by the defence through the cross- examination of the Executive Magistrate or the Investigating Officer so as to disbelieve the contents of the same. Both the dying declarations are consistent with each other and are substantially corroborated and fortified by the oral version of the two witnesses, viz. PW12, the brother-in- law of the deceased Exh.27 and PW13, the mother-in-law of the deceased Exh.28, before whom the deceased disclosed the name of the accused as the assailant immediately in point of time.
55. In our opinion, both these witnesses could be termed as a res gestae witnesses. This principle of res gestae is embodied in Section 6 of the Evidence Act.
"6. Relevancy of facts forming part of same transaction.- Facts which, though not in issue, are so connected with a fact in issue as to form part of the same transaction, are relevant, whether they occurred at the same time and place or at different times and place."
56. In the case of Sukhar v/s. State of U.P., (1999)9 SCC 507, the Supreme Court noticed position of law with regard to Section 6 of the Evidence Act thus :
Page 43 of 63 Downloaded on : Mon Jun 24 23:12:50 IST 2019R/CR.A/1152/2018 CAVJUDGMENT "6. Section 6 of the Evidence Act is an exception to the general rule whereunder the hearsay evidence becomes admissible. But for bringing such hearsay evidence within the provisions of Section 6, what is required to be established is that it must be almost contemporaneous with the acts and there should not be an interval which would allow fabrication. The statements sought to be admitted, therefore, as forming part of res gestae, must have been made contemporaneously with the acts or immediately thereafter. The aforesaid rule as it is stated in Wigmore's Evidence Act reads thus :
"Under the present exception [to hearsay] an utterance is by hypothesis, offered as an assertion to evidence the fact asserted (for example that a car-brake was set or not set), and the only condition is that it shall have been made spontaneously, i.e. as the natural effusion of a state of excitement. Now this state of excitement may well continue to exist after the exciting fact has ended. The declaration, therefore, may be admissible even though subsequent to the occurrence, provided, it is near enough in time to allow the assumption that the exciting influence continued.""
57. Sarkar on Evidence (Fifteenth Edition) summarises the law relating to applicability of Section 6 of the Evidence Act thus :
Page 44 of 63 Downloaded on : Mon Jun 24 23:12:50 IST 2019R/CR.A/1152/2018 CAVJUDGMENT "1. The declarations (oral or written) must relate to the act which is in issue or relevant thereto; they are not admissible merely because they accompany an act. Moreover the declarations must relate to and explain the fact they accompany, and not independent facts previous or subsequent thereto unless such facts are part of a transaction which is continuous.
2. The declarations must be substantially contemporaneous with the fact and not merely the narrative of a past.
3. The declaration and the act may be by the same person, or they may be by different persons, e.g., the declarations of the victim, assailant and bystanders. In conspiracy, riot, the declarations of all concerned in the common object are admissible.
4. Though admissible to explain or corroborate, or to understand the significance of the act, declarations are not evidence of the truth of the matters stated."
58. The rule embodied in Section 6 is usually known as the rule of res gestae. What it means is that a fact which, though not in issue, is so connected with the fact in issue "as to form part of the same transaction" becomes relevant by itself. To form particular statement as part of the same transaction utterances must be simultaneous with the incident or substantial contemporaneous that is made either during or immediately before or after its occurrence."
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42. On the facts and in the circumstances of the case and upon appreciation of the evidence and the materials on record, we are of the view that the two dying declarations are consistent with each other and well corroborated with other evidence and no error, not to speak of any error of law, could be said to have been committed by the trial court in placing reliance upon the dying declarations of the deceased to record the conviction.
43. Applying the ratio laid down by the Supreme Court in the aforesaid decisions to the facts of the present case, we are of the view that the dying declarations have been rightly relied upon by the trial court for convicting the appellants-accused.
44. In the overall view of the matter, we do not find any illegality or any error of law on the part of the trial Judge. The Appeal fails and is hereby dismissed. We are convinced that the appellants-accused have been rightly held guilty of the offence of murder by the trial court. No interference is warranted with the judgment and order of conviction and sentence dated 14.5.2017 passed by the Additional Sessions Judge, City Civil and Sessions Court, Court No.22, Ahmedabad, in the Sessions Case No.353 of 2014
45. In view of dismissal of the main Appeal, the Criminal Misc. Application No.2 of 2018 also stands dismissed.
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46. I am in complete agreement with the ultimate decision taken by my esteemed brother Justice A.C.Rao that the judgment and order of conviction and sentence passed by the trial court deserves to be affirmed. However, I would like to add few words of my own.
47. The dying declaration Exh.28 recorded by the PW-1 Executive Magistrate reads thus :
"Dying Declaration Started at: 00:10 hours Date: 01/05/2014 Civil Hospital - Burns Department - Second Floor, C-5, Ahmedabad (1) What is your name ? Ushaben (2) What is your husband's name ? Akashbhai (3) What is your cast ? Sindhi - Sujlani (4) What is your age ? 24 years (5) What is your educational qualification ? Std.-5 (6) Are you married ? Since when ?- Yes, since 8 years.
(7) Where do you live ? Rameshdutt Colony, Nr. Water
Tank, Bhilvas, Sardarnagar,
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(8) Who is living with you ? My husband and children.
(9) Where and when the incident took place ? On
30.04.2014 at 08:00 hours in the night. At my husband's house.
(10) What is the reason of incident ? My two sisters-in-law namely Kali and Rani frequently used to quarrel with me. Today, after my sister-in-law Rani beat me up severely, my other sister-in-law Kali poured petrol on my body and set me on fire.
(11) Who was present in the house at the time of incident ? I was alone.
(12) Has anybody burnt you ? Yes, Kali had poured petrol on me and set me on fire.
(13) Do you have any mental harassment from anybody ?
My two sisters-in-law, namely Kali and Rani used to harass me.
(14) Who has brought you here ? My husband Aakash brought me here in a108-Ambulance.
(15) Do you want to state anything further ? No The above fact is true as dictated by me. The same has been read over to me, which is correct. I am literate but as I have been burnt and bandages have been tied on both my hands, I have given my right toe impression.
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............................ Before me
Right toe Sd/-(Illegible)
impression of Ushaben (I.P.Zala)
Executive Magistrate
Metropolitan Area
Ghee Kanta, A'bad.
Certificate
The patient is completely conscious at the time of recording this statement. The relative of the patient or the Investigating Officer is not present.
Completed at: 00:35 hours
Date: 01/05/14 Sd/-(Illegible)
Executive Magistrate
Metropolitan Area
Ghee Kanta, A'bad."
48. The FIR Exh.48 treated as the second dying declaration reads thus :
"FIRST INFORMATION REPORT (Under Section-154 of Cr. P.C.) My name is Ushaben W/o. Akashbhai Shyamlal Sujlani, Aged 24 Years, Occupation: Housewife, Residing at:
Rameshdutt Colony, Nr. Water Tank, Bhilwas, Sardarnagar, Ahmedabad City.
I give my complaint in person that I reside with my husband and two children at the aforesaid address and do household chores. I have three sisters-in-law, namely Rani Hareshbhai, Jayshri @ Kali and Hema, and they all reside nearby our house. I got married nine years ago and it was a Page 49 of 63 Downloaded on : Mon Jun 24 23:12:50 IST 2019 R/CR.A/1152/2018 CAVJUDGMENT love-marriage. My parental home is in Bhilwas. My father Kishorebhai is not alive. My mother Bhagwatiben is serving in the BSNL. I have young brother by name Prakash, who does labour work. I have two younger sisters and both are married.
My sisters-in-law, namely Kali and Rani, used to frequently quarrel with me and my husband for money and they were threatening that they will get my mother, who is a Government servant, sacked from the service. Two days back, both Jayshri @ Kali and Rani had an altercation with my husband over the issue of money, and later, they both compromised.
On 30.4.2014, my husband had gone to Bhilwas to attend a marriage function and I was alone at home. At that time, both my children were at my mother's house and two of my sisters-in-law, namely Jayshri @ Kali and Rani, had came to my house at about 8 O'clock in the night and Kali had a petrol bottle in her hand. Rani asked me about why I am demanding money from them and started quarreling with me. Therefore, I told them that its a matter between you and your brother and I don't want to involve into your dispute, therefore, do not harass me or my mother for the same. Thereafter, Rani pulled my hair and beat me and Jayshri @ Kali poured petrol and set me on fire. I shouted and cried for help, therefore, my another sister-in-law, namely Hema, came for help and she also got burn injuries. I was burnt on my entire body and I was brought to the Civil Hospital in a 108-Ambulance. I was admitted in the burns ward and presently I am being treated. I am completely conscious, Page 50 of 63 Downloaded on : Mon Jun 24 23:12:50 IST 2019 R/CR.A/1152/2018 CAVJUDGMENT therefore, I lodge this complaint against both my sisters-in- laws, namely Kali and Rani, and my witnesses are the persons who are found during the investigation.
The aforesaid complaint is true and correct as per my say.
Before me,
Right Toe Impression Sd/- (in English)
of the complainant Inv. P.S.I.
Sardarnagar Police Stn.
Ahmedabad City"
49. The principal argument of Mr.Naik, the learned senior counsel appearing for the accused-appellants, is that no sooner a patient with extensive burns all over the body is admitted in a hospital, then the first thing the doctors would do as a part of the treatment to relieve the patient from excruciating pain is to administer injection like fortwin and pethidine. According to Mr.Naik, the doctors would try to keep the patient under constant sedatives. Mr.Naik submitted that in the present case such pertinent questions have been put to the doctor who performed the postmortem as regards the treatment. Mr.Naik submitted that the prosecution has not examined the doctor who initially attended the deceased till the time the deceased breathed her last. According to Mr.Naik, it is very essential for the prosecution to bring on record cogent, convincing and reliable evidence as regards the condition of the maker of the statement, more particularly, in cases like extensive burns of 99% as in the present case. According to Mr.Naik, it is in such situation that the absence of the endorsement of the doctor on the dying declaration as regards the condition of the patient assumes significance.Page 51 of 63 Downloaded on : Mon Jun 24 23:12:50 IST 2019
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50. In the aforesaid context, more particularly, with regard to the absence of the endorsement of the doctor on the dying declaration as regards the condition of the patient, I may refer to a very recent pronouncement of the Supreme Court in the case of Poonam Bai v. The State of Chhattisgarh (Criminal Appeal No.903 of 2018, decided on 30th April 2019). A bench of three-
Judges has observed in para-10 as under :
"10. There cannot be any dispute that a dying declaration can be the sole basis for convicting the accused. However, such a dying declaration should be trustworthy, voluntary, blemishless and reliable. In case the person recording the dying declaration is satisfied that the declarant is in a fit medical condition to make the statement and if there are no suspicious circumstances, the dying declaration may not be invalid solely on the ground that it was not certified by the doctor. Insistence for certification by the doctor is only a rule of prudence, to be applied based on the facts and circumstances of the case. The real test is as to whether the dying declaration is truthful and voluntary. It is often said that man will not meet his maker with a lie in his mouth. However, since the declarant who makes a dying declaration cannot be subjected to cross-examination, in order for the dying declaration to be the sole basis for conviction, it should be of such a nature that it inspires the full confidence of the court. In the matter on hand, since Exh.P2, the dying declaration is the only circumstance relied upon by the prosecution, in order to satisfy our conscience, we have considered the material on record keeping in mind Page 52 of 63 Downloaded on : Mon Jun 24 23:12:50 IST 2019 R/CR.A/1152/2018 CAVJUDGMENT the well-established principles regarding the acceptability of dying declarations."
51. Thus, the Supreme Court once again reiterated the principle of law that if the person recording the dying declaration is satisfied that the declarant is in a fit medical condition to make the statement and if there are no suspicious circumstances, the dying declaration may not be invalid solely on the ground that it was not certified by the doctor. The insistence for certification by the doctor is only a rule of prudence to be applied based on the facts and circumstances of the case.
52. Mr.Naik, the learned senior counsel, laid much stress on the fact that the victim had 99% burns and there is a serious doubt whether the victim was in a fit state of mind to make the statement. Mr.Naik placed strong reliance on the recent pronouncement of the Supreme Court in the case of Sampat Babso Kale and another v. State of Maharashtra (Criminal Appeal No.694 of 2011, 695 of 2011, decided on 9th April 2019), wherein the Supreme Court has observed as under :
"13. In our view, though dying declarations stand proved, the issue is whether we can convict the accused only on the basis of these dying declarations. In a case of the present nature where the victim had 98% burns and the doctor has stated from the record that a painkiller was injected at 3.30 a.m. and the dying declaration had been recorded thereafter, there is a serious doubt whether the victim was in a fit state of mind to make the statement. She was Page 53 of 63 Downloaded on : Mon Jun 24 23:12:50 IST 2019 R/CR.A/1152/2018 CAVJUDGMENT suffering from 98% burns. She must have been in great agony and once a sedative had been injected, the possibility of her being in a state of delusion cannot be completely ruled out. It would also be pertinent to mention that the endorsement made by the doctor that the victim was in a fit state of mind to make the statement has been made not before the statement but after the statement was recorded. Normally it should be the other way round.
14. No doubt, a dying declaration is an extremely important piece of evidence and where the Court is satisfied that the dying declaration is truthful, voluntary and not a result of any extraneous influence, the Court can convict the accused only on the basis of a dying declaration. We need not refer to the entire law but it would be apposite to refer to the judgment of this Court in the case of Sham Shankar Kankaria v. State of Maharashtra, (2006)13 SCC 165, held as follows:
"11. Though a dying declaration is entitled to great weight, it is worthwhile to note that the accused has no power of cross-examination. Such a power is essential for eliciting the truth as an obligation of oath could be. This is the reason the court also insists that the dying declaration should be of such a nature as to inspire full confidence of the court in its correctness. The court has to be on guard that the statement of deceased was not as a result of either tutoring or prompting or a product of imagination. The court must Page 54 of 63 Downloaded on : Mon Jun 24 23:12:50 IST 2019 R/CR.A/1152/2018 CAVJUDGMENT be further satisfied that the deceased was in a fit state of mind after a clear opportunity to observe and identify the assailant. Once the court is satisfied that the declaration was true and voluntary, undoubtedly, it can base its conviction without any further corroboration. It cannot be laid down as an absolute rule of law that the dying declaration cannot form the sole basis of conviction unless it is corroborated. The rule requiring corroboration is merely a rule of prudence............."
15. In the present case, as we have already held above, there was some doubt as to whether the victim was in a fit state of mind to make the statement. No doubt, the doctor had stated that she was in a fit state of mind but he himself had, in his evidence, admitted that in the case of a victim with 98% burns, the shock may lead to delusion. Furthermore, in our view, the combined effect of the trauma with the administration of painkillers could lead to a case of possible delusion, and (2006) 13 SCC 165 therefore, there is a need to look for corroborative evidence in the present case."
53. I take notice of the last part of the dying declaration recorded by the Executive Magistrate, wherein the Executive Magistrate has certified that the patient is completely conscious. There is some discrepancy with regard to the presence of the mother of the deceased at the time when the dying declaration was recorded by the Executive Magistrate. However, the fact remains that the Executive Magistrate was satisfied that the patient was in a fit state of mind to give her dying declaration. I Page 55 of 63 Downloaded on : Mon Jun 24 23:12:50 IST 2019 R/CR.A/1152/2018 CAVJUDGMENT am of the view that the Executive Magistrate, being an independent or neutral person not connected with the complainant or the assailants' side, his recording of the dying declaration would be more reliable. If the patient was in fact not conscious or in a fit state of mind to utter a single word, then the Executive Magistrate would not go to the extent of recording a false dying declaration and that too at the instance of the mother or other relatives of the deceased. In the case on hand, I do not find any such circumstances which render the credibility of the Executive Magistrate as a witness doubtful. Sometimes, even with the injection of fortwin and pethidine, the injured may be in a position to speak and narrate about the incident. Of course, it is true that in the case on hand what sort of treatment was given to the deceased after being admitted in the hospital has not come on record.
54. The decision of the Supreme Court in the case of Sampat Babso Kale (supra) is more on the facts of the case. In the said case, the victim had 98% burns and there was evidence on record to indicate that a painkiller was injected at 3:30 a.m. and the dying declaration was recorded thereafter. The Supreme Court, in the facts of the said case, entertained serious doubt whether the victim was in a fit state of mind to make the statement. We find it difficult to take the view that in all cases of burns upto 98 to 99% the victim would not be in a position or in a fit state of mind to make any statement. It would all depend upon the facts of each case. At times, even if the victim is in great agony and pain, she would be in a position to make the statement. Here, once again, we reiterate that the dying declaration recorded by the Executive Magistrate stands Page 56 of 63 Downloaded on : Mon Jun 24 23:12:50 IST 2019 R/CR.A/1152/2018 CAVJUDGMENT corroborated with the oral dying declaration made by the victim before her mother Bhagwatiben. The circumstantial evidence on record does not falsify the dying declaration in any manner. We see no good reason to doubt the credibility of the Executive Engineer who recorded the dying declaration.
55. Ordinarily, when there is a dying declaration of the deceased, the same can be challenged by the accused in two ways; first, the accused may be in a position to point out the circumstantial evidence on record rendering the dying declaration false or doubtful, and secondly, by pointing out to the court as regards the condition of the maker of the dying declaration. In the case on hand, the only argument canvassed is that the deceased could not have been in a position to utter a single word having sustained 99% burns. The endeavour on the part of the defence counsel in the present case is not to establish that the dying declaration is falsified by the other circumstances on record. However, as noted above, I do not see any good reason to doubt the evidence of the Executive Magistrate when he says that the deceased was in a position to speak and he was able to record the dying declaration.
56. A dying declaration is an important piece of evidence which, if found veracious and voluntary by the court, could be the sole basis for conviction. If a dying declaration is found to be voluntary and made in fit mental condition, it can be relied upon even without any corroboration. However, the court, while admitting a dying declaration, must be vigilant towards the need for 'compos mentis' certificate from a doctor as well as the absence of any kind of tutoring.
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57. The Supreme Court, in Girja Prasad, (2007)7 SCC 625, while particularly referring to the evidence of a police officer, said that it is not the law that police witnesses should not be relied upon and their evidence cannot be accepted unless it is corroborated in material particulars by other independent evidence. The presumption applies as much in favour of a police officer as any other person. There is also no rule of law which lays down that no conviction can be recorded on the testimony of a police officer even if such evidence is otherwise reliable and trustworthy. The rule of prudence may require more careful scrutiny of their evidence. If such a presumption is raised against the police officers without exception, it will be an attitude which could neither do credit to the magistracy nor good to the public, it can only bring down the prestige of the police administration.
58. The 'dying declaration' is the last statement made by a person at a stage when he is in serious apprehension of his death and expects no chances of his survival. At such time, it is expected that a person will speak the truth and only the truth. Normally in such situations the courts attach the intrinsic value of truthfulness to such statement. Once such statement has been made voluntarily, it is reliable and is not an attempt by the deceased to cover up the truth or falsely implicate a person, then the courts can safely rely on such dying declaration and it can form the basis of conviction. More so, where the version given by the deceased as dying declaration is supported and corroborated by other prosecution evidence, there is no reason for the courts to doubt the truthfulness of such dying declaration.
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59. The Supreme Court, in the case of State of Madhya Pradesh v. Dal Singh and others, reported in (2013)14 SCC 159, made pertinent observations very much apt to the facts of the present case. We quote the observations as under :
"The contradictions raised by the defence in the two dying declarations, as regards who had put the kerosene oil on her, and who had lit the fire have been carefully examined and explained by the trial court. Furthermore, in such a state of mind, one cannot expect that a person in such a physical condition, would be able to give the exact version of the incident. She had been suffering from great mental and physical agony. Upon proper appreciation of the evidence on record, the trial court had found the dying declarations to be entirely believable, and worth placing reliance upon, but the High Court on a rather flimsy ground, without appreciating material facts, has taken a contrary view. In our opinion, as the defence did not put any question either to the executive Magistrate, or to the I.O., or to the doctors who had examined her or conducted the postmortem, with respect to whether any part of the thumb had skin on it or not, as in both the dying declarations, ridges and curves had been clearly found to exist, we do not see any reason to disbelieve the version of events provided by the executive Magistrate and the I.O., who had recorded the dying declarations. No suggestion was made to either of them in this regard, nor was any explanation furnished with respect to why these two independent persons who had recorded the dying declarations, would have deposed against the Page 59 of 63 Downloaded on : Mon Jun 24 23:12:50 IST 2019 R/CR.A/1152/2018 CAVJUDGMENT respondents accused. In the event that both of them had found the deceased to be in a fit physical and mental condition to make a statement, there exists no reason to disbelieve the same. In light of such a fact-situation, the concept of placing of a thumb impression, loses its significance altogether."
60. In Laxman v. State of Maharashtra, (2002)6 SCC 710, the law relating to dying declaration was succinctly put in the following words:
"3. ... A dying declaration can be oral or in writing and any adequate method of communication whether by words or by signs or otherwise will suffice provided the indication is positive and definite. In most cases, however, such statements are made orally before death ensues and is reduced to writing by someone like a Magistrate or a doctor or a police officer. When it is recorded, no oath is necessary nor is the presence of a Magistrate absolutely necessary, although to assure authenticity it is usual to call a Magistrate, if available for recording the statement of a man about to die. There is no requirement of law that a dying declaration must necessarily be made to a Magistrate and when such statement is recorded by a Magistrate there is no specified statutory form for such recording. Consequently, what evidential value or weight has to be attached to such statement necessarily depends on the facts and circumstances of each particular case. What is essentially required is that the person who records a dying declaration must be satisfied that the deceased was in a fit state of Page 60 of 63 Downloaded on : Mon Jun 24 23:12:50 IST 2019 R/CR.A/1152/2018 CAVJUDGMENT mind. Where it is proved by the testimony of the Magistrate that the declarant was fit to make the statement even without examination by the doctor the declaration can be acted upon provided the court ultimately holds the same to be voluntary and truthful. A certification by the doctor is essentially a rule of caution and therefore the voluntary and truthful nature of the declaration can be established otherwise."
61. In Vijay Pal v. State (Government of NCT of Delhi), (2015)4 SCC 749, after referring to the Constitution Bench decision in Laxman (supra) and the two-Judge Bench decisions in Babulal (supra) and Prakash (supra), the Supreme Court held thus :
"22. Thus, the law is quite clear that if the dying declaration is absolutely credible and nothing is brought on record that the deceased was in such a condition, he or she could not have made a dying declaration to a witness, there is no justification to discard the same. In the instant case, PW 1 had immediately rushed to the house of the deceased and she had told him that her husband had poured kerosene on her. The plea taken by the appellant that he has been falsely implicated because his money was deposited with the in-laws and they were not inclined to return, does not also really breathe the truth, for there is even no suggestion to that effect.
23. It is contended by the learned counsel for the appellant that when the deceased sustained 100% burn injuries, she Page 61 of 63 Downloaded on : Mon Jun 24 23:12:50 IST 2019 R/CR.A/1152/2018 CAVJUDGMENT could not have made any statement to her brother. In this regard, we may profitably refer to the decision in Mafabhai Nagarbhai Raval v. State of Gujarat, wherein it has been held that a person suffering 99% burn injuries could be deemed capable enough for the purpose of making a dying declaration. The Court in the said case opined that unless there existed some inherent and apparent defect, the trial court should not have substituted its opinion for that of the doctor. In the light of the facts of the case, the dying declaration was found to be worthy of reliance.
24. In State of M.P. v. Dal Singh, a two-Judge Bench placed reliance on the dying declaration of the deceased who had suffered 100% burn injuries on the ground that the dying declaration was found to be credible."
62. Apart from the dying declaration recorded in writing by the Executive Magistrate and the Investigating Officer in the form of an FIR, there is evidence to indicate that the deceased had made an oral dying declaration before her mother, i.e. the PW-5 Bhagwatiben. The oral dying declaration made by the deceased before her mother is fully corroborated by the dying declaration recorded by the Executive Magistrate as well as the FIR. It is not that the PW5 Bhagwatiben has deposed for the first time before the court in her oral evidence as regards the oral dying declaration. We find reference of such oral dying declaration in her police statement recorded under Section 161 of the Code. We would have been reluctant to rely upon the oral dying declaration if the defence would have brought contradiction in Page 62 of 63 Downloaded on : Mon Jun 24 23:12:50 IST 2019 R/CR.A/1152/2018 CAVJUDGMENT the form of material omission in this regard on record. However, as noted above, the PW5 Bhagwatiben did state before the police while her statement under Section 161 of the Code was being recorded regarding the oral dying declaration.
63. In the aforesaid view of the matter, I am of the view that the trial court committed no error in holding the appellants- accused guilty of the offence of murder punishable under Section 302 of the Indian Penal Code by placing reliance on the oral dying declaration as well as the two dying declarations in writing referred to above.
64. I am of the view that the Appeal deserves to be dismissed and the judgment and order of conviction and sentence passed by the trial court deserves to be affirmed and is hereby affirmed.
65. In view of the disposal of the main Appeal itself, the Criminal Misc. Application would not survive and the same is disposed of accordingly.
(J. B. PARDIWALA, J.) (A.C. RAO, J.) /MOINUDDIN/RAFIK Page 63 of 63 Downloaded on : Mon Jun 24 23:12:50 IST 2019