Gujarat High Court
Arifbhai Mohammedbhai Parmar vs State Of Gujarat on 6 March, 2018
Author: Harsha Devani
Bench: Harsha Devani, A.S. Supehia
R/CR.A/892/2012 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL APPEAL NO.892 of 2012
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS.JUSTICE HARSHA DEVANI
and
HONOURABLE MR.JUSTICE A.S. SUPEHIA
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1 Whether Reporters of Local Papers may be
allowed to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair
copy of the judgment ?
4 Whether this case involves a substantial
question of law as to the interpretation of the
Constitution of India or any order made
thereunder ?
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ARIFBHAI MOHAMMEDBHAI PARMAR
Versus
STATE OF GUJARAT
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Appearance:
MR HASMUKH R GURJAR, ADVOCATE for the appellants.
Mr.L.B. DABHI, ADDITIONAL PUBLIC PROSECUTOR for
RESPONDENT(s) No. 1.
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CORAM: HONOURABLE MS.JUSTICE HARSHA DEVANI
and
HONOURABLE MR.JUSTICE A.S. SUPEHIA
Date : 06/03/2018
Page 1 of 47
R/CR.A/892/2012 JUDGMENT
ORAL JUDGMENT
(PER : HONOURABLE MS.JUSTICE HARSHA DEVANI) By this appeal under section 374(2) of the Code of Criminal Procedure, 1973 (hereinafter referred to as 'the Code'), the appellants (convicts) have challenged the judgment and order dated 28th March 2012, passed by the learned 8th Additional District and Sessions Judge, (Ad Hoc), Vadodara in Sessions Case No.184 of 2009, whereby the appellants herein have been convicted for the offence under section 302 read with section 114 of the Indian Penal Code and have been sentenced to life imprisonment and fine of Rs.1,000/- and in default of payment of fine, to undergo further rigorous imprisonment for two months.
2. The prosecution case, in brief, is that the informant Afsanaben Mahammedbhai Parmar, aged 24 years, gave her complaint before the Investigating Officer, whereafter she passed away. As per the complaint lodged by the informant she was residing at Sarsavni village with her father-in-law, mother-in-law and her husband and was doing household work. Out of the wedlock she had a two-year old daughter by the name of Asma. On 5.7.2009 in the morning at 8:00 o'clock, the informant's mother-in-law, namely, Umedben started saying that she was not cooking and in this manner picked up a quarrel with the informant, due to which the informant told her that she was falsely maligning her. Whereupon, there was an of exchange of words and accused Umedben as well as the informant's father-in-law Mohammedbhai caught hold of the informant, and her husband Arifbhai, poured kerosene from a Page 2 of 47 R/CR.A/892/2012 JUDGMENT can on her and lit a matchstick and set her ablaze, due to which she started screaming and her sister-in-law Mehmoodaben came there and put a quilt over her and extinguished the flames. The informant had sustained burn injuries all over her body, and hence, she was taken to the Padra Government Hospital for treatment in a 108-van and from there she was referred with a memorandum to the SSG Hospital at Vadodara for treatment. The informant has further stated that the accused has told her that she should not complain against them to the police and had threatened her in this manner. Thus, the informant was taken to the SSG Hospital at Vadodara for treatment, where she died on 5.7.2009 while undergoing treatment. Accordingly, a first information report, being Padra Police Station I-C.R. No.145 of 2009, came to be registered for the offences punishable under sections 302, 498A and 114 of the Indian Penal Code.
3. Pursuant to the first information being registered the Investigating Officer carried out investigation and upon finding sufficient material, submitted a charge sheet in the court of the learned Judicial Magistrate, First Class, Padra. As the case was triable only by a Court of Sessions, it came to be committed to the Sessions Court at Vadodara, where it came to be registered as Sessions Case No.184 of 2009.
4. The charge came to be framed at Exhibit 4 and was read over to the accused persons, who pleaded not guilty, and claimed a trial.
5. Before trial court the prosecution examined, in all, twenty witnesses and produced various documentary evidences. The Page 3 of 47 R/CR.A/892/2012 JUDGMENT trial court, after appreciating the evidence on record, found that the prosecution has proved the charge under section 302 read with section 114 of the Indian Penal Code against both the appellants and convicted them accordingly.
6. Mr. Hasmukh R. Gurjar, learned advocate for the appellants invited the attention of the court to the certificate dated 6.3.2017 issued by the In-charge Superintendent, Vadodara Central Jail certifying that the female prisoner Umedben, wife of Mohammedbhai Parmar has been given benefit of State pardon and has been ordered to be released from jail and has accordingly been released with effect from 27.1.2017.
7. The learned advocate for the appellants took the court through the testimonies of the witnesses at length and in great detail. It was submitted that the prosecution case is based on the dying declarations of the deceased, which is stated to have been recorded by the Executive Magistrate and the Investigating Officer. It was submitted that this is a case where there are multiple dying declarations which are contradictory to each other. Reference was made to the testimony of PW 13 Dr. Hitesh Vinodbhai Panchiwala, to point out that before the said Medical Officer, the deceased had given history to the effect that at 8:00 o'clock in the morning, while she was making tea, while filling kerosene in the stove, she had sustained burns. Reference was made to the history recorded in the medical case papers, wherein history recorded is "accidental flame burns while refilling kerosene in stove while making tea on 5.7.2009 at 8:00 A.M. at her home". It was submitted that therefore, the first version given by the Page 4 of 47 R/CR.A/892/2012 JUDGMENT deceased was that she had sustained burns accidentally. It was submitted that later on after her family members, namely, her father, mother and other relatives came to the hospital, under the effect of tutoring, she had changed her version and implicated the present appellants.
7.1 Referring to the dying declaration recorded by PW 12 Jitendrasinh Dolatsinh Desai, the Special Executive Magistrate, it was pointed out that the same bears the thumb impression of the right thumb of the deceased. It was submitted that prior to recording the statement, no opinion of the Medical Officer had been obtained as to whether the patient was conscious and in a fit state of mind for recording her dying declaration. Referring to the testimonies of different witnesses it was pointed out that the deceased had bandages all over her body and, therefore, it was not possible for her to put her thumb impression on the dying declaration. Reference was made to the testimony of PW 7 Dr. Vaishakhi Yashwantray Shukla to point out that the said witness, in her cross-examination, has admitted that in the present case it was not possible to obtain the thumb impression of the patient, but it was possible to obtain a footprint. It was submitted that since the patient was not in a position to put her thumb impression, the thumb impression on the dying declaration is not of the patient and is somebody else's thumb impression. It was submitted that therefore, the prosecution has failed to prove that the dying declaration has been given by the deceased.
7.2 It was submitted that considering the entire oral and documentary evidence and admitted facts, the case rests upon the circumstantial evidence and that the chain of Page 5 of 47 R/CR.A/892/2012 JUDGMENT circumstances must be proved. Referring to the testimony of PW 11 Anwarkhan Akbarkhan Pathan it was pointed out that this witness has deposed that the police had orally examined deceased Afsana at the Padra Hospital at which point of time he was present there. At that time she had said that when she went to take the can, kerosene was spilled and thereafter there were flames and her clothes caught fire. It was submitted that out of the four dying declarations given by the deceased, three are in favour of the accused. All the three dying declarations were given by the victim before the arrival of her father, mother and other relatives. It was submitted that therefore, the credibility of the four dying declarations has to be evaluated keeping this in mind. It was submitted that the Executive Magistrate has not obtained certificate of fitness from the doctor as to whether the patient is capable of speaking and mentally fit to give her statement. Referring to the testimony of PW 7 Dr. Vaishaki Yashwantray Shukla, it was pointed out that the witness has admitted that the victim had sustained injuries over her lips and any person with injury on the lips would not be able to speak clearly. It was further submitted that two of the witnesses, who are relatives of the deceased have also stated that she could not speak clearly. Therefore, the dying declaration is suspicious and cannot be relied upon.
7.3 It was submitted that in this case no independent witness has been examined. There is no eye witness to the incident. All closely related witnesses have supported the case and their evidence cannot be relied upon. It was submitted that in a case of multiple dying declarations, scrutiny has to be made as to which dying declaration is credible. Referring to the Page 6 of 47 R/CR.A/892/2012 JUDGMENT testimony of PW 4 Ahmedbhai Hussainbhai Shaikh, the father of the deceased, it was pointed out that the witness has, in his cross-examination, stated that he was at the hospital for the entire day. Other than policemen, the District Magistrate and the Mamlatdar had come to the hospital. It was pointed that the witness has denied that when the District Magistrate came, he had stated the facts regarding how the incident of his daughter had taken place. He has stated that he (the District Magistrate) had only asked as to whose daughter she was. It was pointed that from the testimony of the said witness it has further come out that at the time when District Magistrate arrived, he was near his daughter's bed. At that time he, his wife, his brother-in-law and others were also present near the bed. The Magistrate came and talked with his brother-in-law and after putting queries to him, he had left. He has further admitted that after the Magistrate asked questions to his brother-in-law near the bed and left, the police were present there and that the Magistrate had not put any questions to Afsana. It was submitted that from the testimony of this witness it is clear that no dying declaration had been recorded by the Executive Magistrate and that he had not asked Afsana any questions.
7.4 Referring to the testimony of the medical witnesses together with the medical case papers, it was pointed out that the deceased had sustained 87% to 95% burns, and hence, she would not be in a fit state of mind to give her dying declaration. Under the circumstances, in the absence of any certification by the Medical Officer regarding the deceased being conscious and in a fit state of mind to give her statement, the dying declaration does not deserve to be Page 7 of 47 R/CR.A/892/2012 JUDGMENT accepted.
7.5 In support of his submission the learned advocate placed reliance upon the decision of the Supreme Court in the case of S. Panneerselvam v. State of Tamil Nadu, (2008) 17 SCC 190, for the proposition that though a dying declaration is entitled to great weight, 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 nature as to inspire full confidence of the court in its correctness. The court has to be on guard that the statement of the deceased was not as a result of either tutoring or prompting or a product of imagination. The court must be further satisfied that the deceased was in a fit state of mind after a clear opportunity to observe and identify the assailant. Where there are more than one statements in the nature of dying declaration, the one first in point of time must be preferred.
7.6 Reliance was also placed upon the decision of the Supreme Court in the case of Surinder Kumar v. State of Haryana, (2011) 10 SCC 173, wherein the court has reiterated the principles governing dying declarations. The court held that acceptability of the alleged dying declaration in the particular case has to be considered. If after careful scrutiny, the court is satisfied that it is free from any effort to induce the deceased to make a false statement and if it is coherent and consistent, there shall be no legal impediment to make it a basis of conviction, even if there is no corroboration.
7.7 The decision of the Supreme Court in the case of State Page 8 of 47 R/CR.A/892/2012 JUDGMENT of Maharashtra v. Hemant Kawadu Chauriwal, (2015) 17 SCC 598, was cited for the proposition that it is settled law that dying declaration can be 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 facts of the said case, the Naib Tahsildar had deposed before the court that fitness certificate as to mental capacity of the deceased was taken from the doctor. However, the certificate nowhere stated that the deceased was in a fit and stable mental condition at the time of making the statement. The court held that dying declaration had not been proved.
7.8 Reliance was also placed upon the decision of this court in the case of State of Gujarat v. Himatbhai Rambhai Vaghsia and others, 2013 (3) GLR 2528, wherein the trial court had found that the dying declaration could not be relied upon as the testimony of the Executive Magistrate revealed that he had not ascertained whether the deceased was in a fit state of mind at the time of its recording. As per the medical papers, the deceased was brought to the hospital with 100% first, second and third degree burns. In the original record, there was a thumb impression of the deceased which was stated to be the right thumb impression, whereas in the inquest panchnama it was stated that both the hands and legs of the deceased were bandaged and there were bandages from the neck to the waist of the deceased and there was no mention in the inquest panchnama regarding right hand thumb Page 9 of 47 R/CR.A/892/2012 JUDGMENT of the deceased being free of bandages nor was there any mention of an ink mark on her right thumb. Viewed in the background of the facts emerging from the evidence on record, the court was of the view that the fitness of mind of the deceased to make the dying declaration assumes great relevance. The court observed that there was no conclusive evidence to prove that the deceased was fully conscious or in a fit state of mind to record the dying declaration. Considering all the above aspects, the court found that there were serious infirmities in the dying declaration inasmuch as there was no certification by a doctor to the effect that the deceased was conscious and in a fit state of mind before recording it, and accordingly came to the conclusion that the prosecution had failed to prove the charge beyond reasonable doubt.
7.9 In conclusion, it was submitted that having regard to the overall evidence which has come on record this is a good case for acquittal. It was further pointed out that while recording statement of the accused under section 313 of the Code, no question had been put to the accused regarding the dying declaration, Exhibit 44. Lastly, it was submitted that if at all the court comes to the conclusion that an offence has been made out, the accused can be said to have committed the offence relating to demand of dowry and cruelty under section 304B of the Indian Penal Code and therefore, conviction for a lesser offence under section 304B of the Indian Penal Code may be made.
8. On the other hand, opposing the appeal, Mr. L.B. Dabhi, learned Additional Public Prosecutor invited the attention of the court to the medical case papers at Exhibit 48, to point out Page 10 of 47 R/CR.A/892/2012 JUDGMENT that the first written dying declaration regarding accidental flame burns while refilling kerosene in stove while making tea has come on record when the deceased was admitted by relatives from her matrimonial side. It was submitted that the dying declaration recorded in the medical case history is not corroborated by the evidence on record inasmuch as the scene of offence panchnama does not show the presence of a stove or kerosene or articles for preparing tea. Therefore, the first version given by the deceased was due to pressure and threat by the accused as recorded in the first information report. Reference was made to Exhibit 54 to point out that the deceased has stated that her father-in-law, mother-in-law and husband had informed her that she should not give any kind of complaint before the police and had threatened her in this manner.
8.1 It was submitted that apart from the written dying declarations which have come on record, there are oral dying declarations before the father and mother of the deceased. Referring to the testimony of PW 4 Ahmedbhai Hussainbhai Shaikh, it was pointed out that from the testimony of the said witness it has come out that his daughter was speaking softly and that she had informed him, his wife as well as his maternal uncle and aunt that her mother-in-law, father-in-law and husband, all three of them got together and burnt her. Her mother-in-law and father-in-law had caught hold of her and her husband had lit the match-stick. It was submitted that the other witnesses, namely, PW 5 Yunusbhai Imambhai Shaikh, PW 8 Saberabibi Mehbubbhai Malek, etc. have also narrated similar versions.
Page 11 of 47R/CR.A/892/2012 JUDGMENT 8.2 Reference was made to the dying declaration (Exhibit 44) recorded by the Executive Magistrate, to submit that there is consistency between the dying declaration recorded by the Executive Magistrate, the first information report recorded by PW 15 Khumansinh Nanabhai Damor and the oral dying declarations made by the deceased.
8.3 As regards the contention raised on behalf of the appellants that the Medical Officer had not certified that the deceased was in a fit state of mind for recording her dying declaration, it was submitted that a medical certificate is not necessary if the person recording the statement finds the patient to be in a fit state of mind. Reference was made to the Yadi, Exhibit 43 sent by the Padra Police Station to the Medical Officer, SSG Hospital, asking for an opinion as to whether the patient was conscious to point out that the Medical Officer has made an endorsement at 11:57 AM on 5.9.2009 that the patient is conscious. Reference was made to the testimony of PW 12 Special Executive Magistrate, to point out that the witness, in his examination-in-chief has stated that after talking with the patient, he had found that she was conscious and was able to understand the questions put to her, whereafter he has started recording her dying declaration. It was pointed out that in his cross-examination the Executive Magistrate has stated that while it was true that the patient had sustained burn injuries all over her body, it was not true that she was not speaking. The Executive Magistrate has stated that she was speaking in a manner which one could understand. He has further denied that the patient was in a semi-conscious condition. It was pointed out that while the Executive Magistrate has admitted that in the dying Page 12 of 47 R/CR.A/892/2012 JUDGMENT declaration - Exhibit 44, he has not mentioned that the victim was mentally fit and was competent to give her statement, he has voluntarily stated that he has written therein that the patient was conscious. Reference was made to the first information report given by the deceased as well as to the testimony of PW 15 Khumansinh Nanabhai Damor, to point out that the witness has deposed that when they reached the SSG Hospital at around 1:00 o'clock in the afternoon, the victim was fully conscious and he had also inquired from the Medical Officer as to whether she was fully conscious and thereafter he had put questions to her. It was submitted that therefore, from the evidence that has come on record it is amply clear that the deceased was conscious and in a fit state of mind for recording her dying declaration.
8.4 As regards the contention that the deceased was not in a position to give her thumb impression as she had sustained burn injuries all over her body, the learned Additional Public Prosecutor submitted that there is no reason for the Executive Magistrate or the Deputy Superintendent of Police to create a false record. The attention of the court was invited to the testimony of PW 13 Dr. Hitesh Vinodbhai Panchiwala, to point out that the doctor had described the injuries sustained by the deceased wherein it has been stated that she had sustained 7% to 8%, 2 to 3 degree burns on her right hand. Referring to the testimony of PW 7 Dr. Vaishakhi Yashwantray Shukla, it was pointed out that as per the deposition given by the witness, the deceased had sustained burn injuries all around her hands till her palms. Reference was further made to the testimony of PW 10 Rehanabibi Yusufbhai Shaikh, to submit that the said witness has stated that when they reached the Page 13 of 47 R/CR.A/892/2012 JUDGMENT hospital, the dressing was going on, Afsana's entire body has been burnt and only four fingers from one hand and three fingers from the other hand were not burnt. It was further pointed out that as per the testimony of the said witness, when she lifted Afsana, the skin from her body stuck to her body and that the skin had stuck to the clothes she was wearing. It was submitted that the testimony of this witness indicates that the entire body of the deceased was not bandaged at the relevant point of time. Referring to the inquest panchnama, Exhibit 34 it was submitted that the same does not refer to any dressing on the hands. Reference was made to the testimony of PW 12 the Special Executive Magistrate, to point out that in his cross- examination, the witness has stated that the parts of the body where there were injuries had been bandaged. Reference was also made to the testimony of PW 15 Khumansinh Nanabhai Damor to point out that in the cross-examination of the witness he has denied that when he reached the hospital, the entire body of the victim was bandaged. It was submitted that therefore, from the evidence that has come on record, there is nothing to indicate that thumb impression of the deceased could not be obtained.
8.5 Next, it was submitted that insofar as the veracity of the dying declaration recorded by the Executive Magistrate is concerned, the Executive Magistrate had been called by the police by sending him a yadi for recording the dying declaration, which has been proved on record. Therefore, his presence at the hospital cannot be doubted. It was submitted that the Deputy Superintendent of Police took the thumb impression on the first information report and the Executive Magistrate took the thumb impression on the dying Page 14 of 47 R/CR.A/892/2012 JUDGMENT declaration. Referring to the testimony of PW 12 the Special Executive Magistrate, it was pointed out that the said witness has stated that no one was present at that time when the dying declaration of the patient was recorded. Reference was made to the testimony of PW 5 Yunusbhai Imambhai Shaikh to point out that the said witness in his cross-examination has denied the suggestion that at the time when Afsana's statement was being recorded he, Afsana's father and mother and other family members were inside the room. The witness has voluntarily stated that they were all standing outside the room at a distance. It was submitted that therefore, at the time when the statement of the victim came to be recorded, no one else was present in the room except the Executive Magistrate. According to the learned Additional Public Prosecutor the testimonies of witnesses, though they are relatives, are worthy of credence and no material contradictions have been brought out in their testimonies.
8.6 Referring to the testimony of PW 13 Dr. Hitesh Vinodbhai Panchiwala, it was pointed out that from the testimony of this witness it has come on record that the relatives of the accused were present at the time when he treated the patient at Padra. Referring to the testimony of PW 11 Anwarkhan Akbarkhan Pathan, it was pointed out that this witness has, in his cross examination, stated that when Afsana was brought to the SSG Hospital, Mehboobbhai and accused Umedben and Arifbhai had also come and except them, no one else was there. Reference was also made to the testimony of PW 8 Saberabibi Mehboobbhai Malek, to point out that the said witness has stated that the accused Arifbhai and his mother were present at the hospital and were standing at the back. It was submitted Page 15 of 47 R/CR.A/892/2012 JUDGMENT that therefore, though there are multiple dying declarations, the first dying declaration in the nature of medical history had been given by the deceased in the presence of the accused or their relatives. It was submitted that in the first information report recorded by the Deputy Superintendent of Police, the deceased has clearly stated that she was threatened by her husband, father-in-law and mother-in-law not to complain against them before the police. It was submitted that it was only after her relatives came to the hospital, that the deceased had mustered enough courage to state the correct facts before the Executive Magistrate and the Deputy Superintendent of Police. It was submitted that the subsequent dying declarations recorded by the Executive Magistrate and the Deputy Superintendent of Police are duly corroborated by the evidence on record.
8.7 It was further submitted that it is settled legal position that in case of multiple dying declarations, the dying declarations which are corroborated by the evidence on record should be accepted. In support of his submissions, the learned Additional Public Prosecutor placed reliance upon the decision of the Supreme Court in the case of Pawan Kumar v. State of Himachal Pradesh, (2017) 7 SCC 780, wherein the trial court had not relied on the dying declaration for the reason that the deceased was not in a position to speak and there was no medical certificate appended as regards her fitness. The trial court further regarded the dying declaration as unacceptable and unreliable on the base that the deceased had sustained 80% burn injuries. The High Court had found that the said approach to be absolutely erroneous. The Supreme Court held that there is no requirement of law that a Page 16 of 47 R/CR.A/892/2012 JUDGMENT 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. The court held that 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 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.
8.8 The decision of the Supreme Court in the case of Ramesh v. State of Haryana, (2017) 1 SCC 529, was cited for the proposition that in order that a dying declaration may form the sole basis for conviction without the need for independent corroboration it must be shown that the person making it had the opportunity of identifying the person implicated and is thoroughly reliable and free from blemish. If, in the facts and circumstances of the case, it is found that the maker of the statement was in a fit state of mind and had voluntarily made the statement on the basis of personal knowledge without being influenced by others and the court on strict scrutiny finds it to be reliable, there is no rule of law or even of prudence that such a reliable piece of evidence cannot be acted upon unless it is corroborated. The court also held that there is no hard-and-fast rule of universal application as to Page 17 of 47 R/CR.A/892/2012 JUDGMENT whether percentage of burns suffered is determinative factor to affect credibility of dying declaration and improbability of its recording. Much depends upon the nature of the burn, part of the body affected by the burn, impact of the burn on the faculties to think and convey the idea or facts coming to mind and other relevant factors. Percentage of burns alone would not determine the probability or otherwise of making dying declaration. Physical state or injuries on the declarant do not by themselves become determinative of mental fitness of the declarant to make the statement.
8.9 Reliance was also placed on the decision of the Supreme Court in the case of Gulzari Lal v. State of Haryana, (2016) 4 SCC 583, wherein the court held that a valid dying declaration may be made without obtaining a certificate of fitness of the declarant by a Medical Officer. The court placed reliance upon its earlier decision in the case of Laxman v. State of Maharashtra, that 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.
8.10 Reference was made to the decision of the Supreme Court in the case of State of Madhya Pradesh v. Dal Singh, (2013) 14 SCC 159, wherein the court considered the question whether 100% burnt person can make a dying declaration or put a thumb impression. The court held that so far as the question of thumb impression is concerned, the same depends upon facts, as regards whether the skin of the thumb that was placed upon the dying declaration was also burnt. The court held that even in case of such burns in the body, the skin of a small part of the body, i.e. of the thumb, may remain intact.
Page 18 of 47R/CR.A/892/2012 JUDGMENT Therefore, it is a question of fact regarding whether the skin of the thumb had in fact been completely burnt, and if not, whether the ridges and curves had remained intact.
8.11 Lastly, the decision of the Supreme Court in the case of Sudhakar v. State of Madhya Pradesh, (2012) 7 SCC 569, came to be cited, wherein the court had examined the issue wherein the cases involving multiple dying declarations made by the deceased; which one of various dying declarations should be believed by the court and what are the principles governing such determination. The court observed that this becomes important where multiple dying declarations made by the deceased are either contradictory or are at variance with each other to a large extent, the test of common prudence would be to first examine which of the dying declaration is corroborated by other prosecution evidence. Further, the attendant circumstances, condition of deceased at the relevant time, medical evidence, voluntariness and genuineness of statement made by deceased, physical and mental fitness of deceased and possibility of deceased being tutored, are some of the factors which would guide exercise of judicial discretion by the court in such matters.
8.12 It was submitted that from the testimonies of the witnesses it is evident that there was a demand of dowry; the married life of the deceased was only two years; all the witnesses have referred to the harassment meted out to the deceased at the hands of the accused; therefore, the overall evidence on record unerringly points towards the guilt of the accused, and hence, no case is made out to warrant interference and that the judgment and order of conviction and Page 19 of 47 R/CR.A/892/2012 JUDGMENT sentence passed by the trial court deserves to be confirmed.
9. In rejoinder, Mr. Gurjar, learned advocate for the appellants, submitted that as regards consciousness of the deceased right from the inception till the recording of the dying declarations, in all, three written dying declarations have come on record. It was submitted that if the deceased was conscious from the beginning, then the first dying declaration relating to the accidental death should be taken into consideration as she was conscious and mentally fit to make such statement.
9.1 It was submitted that the subsequent statements giving a different version have been made after the relatives visited the hospital and therefore, such dying declarations being tutored ones, should not be believed. It was submitted that the dying declaration Exhibit 44 came to be recorded by the Executive Magistrate and there is no endorsement of the doctor that the patient was in a fit state of mind to record her statement. It was submitted that there is no certification of fitness on record. The Executive Magistrate has obtained the thumb impression of the deceased which is not authenticated by any independent witness and is therefore, a suspicious document and is a document prepared by the Investigating Officer to implicate the accused. It was submitted that when the dying declaration Exhibit 44 came to be recorded, the deceased has sustained 95% to 97% burn injuries. In these circumstances, the thumb impression could not have been clear. Therefore, the clear impression of the thumb obtained on both the dying declarations was not possible. It was contended that the prosecution has failed to prove the dying declarations Exhibits Page 20 of 47 R/CR.A/892/2012 JUDGMENT 44 and 54 and that the thumb impression on such dying declarations are not of the deceased but of some other person. Therefore, the entire documentary evidence, viz. Exhibits 44 and 54 are suspicious and this is a clear case of accidental injury.
9.2 It was submitted that the presence of the accused at the scene of the incident when the incident took place, as well as intention, knowledge and motive have not been proved. It was reiterated that this is a case of accidental death and that the prosecution has failed to establish the charge against the accused beyond reasonable doubt and that the accused deserve to be acquitted.
10. In the backdrop of the rival contentions and the evidence on record, the following points arise for determination by this court.
POINTS:
I Whether non-obtaining a certificate of the Medical Officer certifying that the patient was conscious and in a fit state of mind to give her statement renders the dying declarations invalid?
II Whether having regard to the nature of the burn injuries sustained by the deceased, it was possible to obtain her thumb impression on the dying declarations?
III Considering the extent of burn injuries sustained by the deceased, whether she was in a position to speak so as to be able to give her statement?Page 21 of 47
R/CR.A/892/2012 JUDGMENT IV As multiple dying declarations have been given by the
deceased, which dying declaration should be accepted?
FINDINGS:
11. Findings on Point I: Insofar as not obtaining a certificate of a Medical Officer certifying that the patient is conscious and in a fit state of mind is concerned, the legal position in this regard is well settled. The Supreme Court in Rambai v. State of Chhattisgarh, (2002) 8 SCC 83, held thus:
"6. So far as the position of law in regard to the admissibility of the dying declaration which is not certified by the doctor, the same is now settled by a Constitution Bench judgment of this Court reported in Laxman vs. State of Maharashtra, wherein overruling the judgment of this Court in Laxmi vs. Om Prakash, it is held that a dying declaration which does not contain a certificate of the doctor cannot be rejected on that sole ground so long as the person recording the dying declaration was aware of the fact as of the condition of the declarant to make such dying declaration. If the person recording such dying declaration is satisfied that the declarant is in a fit mental condition to make the dying declaration then such dying declaration will not be invalid solely on the ground that the same is not certified by the doctor as to the condition of the declarant to make the dying declaration. Be that as it may, so far as this case is concerned, that question does not arise because in the instant case PW.19, Dr. Ashok Sharma though not a doctor who treated the deceased but being the duty doctor when summoned came and examined the deceased and noted in the dying declaration itself as to the capacity of the deceased to make a dying declaration. That apart from the narration of the questions and answers in the dying declaration it is clear that the deceased was in a fit state of mind to make the statement. But the learned counsel for the appellant contended that we should examine the contents of the Page 22 of 47 R/CR.A/892/2012 JUDGMENT dying declaration in the background of the fact that the deceased had suffered nearly 85% burns and ever since her admission to the hospital she was alternating between consciousness and unconsciousness, as also earlier attempts to record her dying declaration had failed. Therefore the learned counsel contends that it is not safe to place reliance on the dying declaration. We have carefully perused the evidence of PWs.12 and 11 who recorded the dying declaration and PW.19 who is the doctor who certified the condition of Vidya Bai from their evidence. We are satisfied that the deceased at the time she made the dying declaration was in a fit condition of mind to make such statement. Having found no discrepancy in the statement of the deceased we are inclined to accept the same as held by the courts below. Learned counsel then contended that from the evidence of the husband, DW.2 himself, it is clear that the deceased must have suffered burn injuries while she was cooking lunch, therefore, it is not safe to rely upon the prosecution evidence to convict the appellant. We notice the courts below have considered this argument and taking the preponderance of evidence and also the factum that the husband of the deceased had resiled from his statement made before the investigating officer have held that it is not safe to rely upon DW.2. In such a situation we are unable to take a contra view from the one taken by the courts below."
11.1 The facts of the case are required to be examined keeping in mind the above principles. In this case, it is an admitted position that the dying declarations do not bear the endorsement of any Medical Officer certifying that the patient was in a fit state of mind to be able to give her statement. The evidence on record, is, therefore, required to be scrutinized to ascertain whether there is any material on record to establish that the deceased was conscious and in a fit state of mind at the time when the dying declarations came to be recorded.
11.2 Proceeding sequentially, a yadi (Exhibit 43) came to
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be issued by the S.O., Padra Police Station, on 5.7.2009 to the Medical Officer, S.S.G. Hospital Vadodara, inter alia, stating that the victim, Afsana having sustained burn injuries at home, it is necessary to record her statement, and hence, he is requested to give his opinion as to whether the patient is conscious. On this yadi, the concerned Medical Officer made an endorsement at 11:57 to the effect that "the patient is conscious".
11.3 Thereafter, a yadi (Exhibit 42) came to be issued by the Padra Police Station to the Executive Magistrate, Vadodara City, inter alia, stating that Afsana has sustained burn injuries at home and she lives with her in-laws and the span of her married life is two years and she is under treatment at the S.S.G. Hospital, E/4. Therefore, he is requested to come to record her dying declaration. This yadi came to be received by the Executive Magistrate at 12:35 hours. The dying declaration, Exhibit 44 came to be recorded by the Executive Magistrate at 12:45 to 13:00 hours.
11.4 PW 12 Jitendrasinh Dolatsinh Desai, the Special Executive Magistrate, has, inter alia, deposed that when he reached the bed in the E/4 ward, the patient Afsana was alone. He introduced himself. The patient was able to speak and upon making casual conversation with her, it appeared that the patient was conscious and was able to understand the questions put to her, and hence, he told her that her dying declaration was to be recorded. This witness, in his cross- examination, has admitted that in the letter Exhibit 43, all that was stated was that the patient was conscious, no other words were used. He has further admitted that in the letter Exhibit 43 Page 24 of 47 R/CR.A/892/2012 JUDGMENT there is no mention as to whether the patient is competent to give her dying declaration. The witness has further admitted that in the dying declaration Exhibit 44, there is no mention that the patient was mentally well and competent to give her statement. He, however, has voluntarily stated that the words "The patient is conscious" are written.
11.5 Thus, at 11:57 the Medical Officer has made an endorsement that the patient is conscious. Considering the fact that the opinion was called for the purpose of recording the dying declaration, it can be safely assumed that the Medical Officer found her fit to record her statement. Nevertheless, taking the endorsement at its face value, at 11:57, the patient was conscious.
11.6 PW 13 Dr. Hitesh Vinodbhai Panchiwala, who has treated Afsana, has deposed that the patient was able to speak and was well oriented to the conditions around her. On 5.7.2009, he has made an endorsement that the patient is conscious. At this juncture, the medical case papers of deceased Afsana (Exhibit 48) may be referred to. In the medical case papers it has been recorded thus:
"No H/O of unconsciousness", "patient is conscious", "conscious".
At 12:45 P.M.: "No H/O unconsciousness, convulsions, vomiting". "G/E - Patient is conscious, cooperative, well oriented to time, place and person".
11.7 This endorsement has also been made on 5.7.2009 at 12:45 p.m. Thus, the record as referred to hereinabove Page 25 of 47 R/CR.A/892/2012 JUDGMENT reveals that on 5.7.2009 at 11:57, the concerned Medical Officer had made an endorsement that: "Patient is conscious". At 12.45 p.m. an endorsement has been made to the effect that there is no history of unconsciousness and that the patient is conscious, cooperative, well oriented to time, place and person. The dying declaration has been recorded by the Executive Magistrate from 12:45 to 13:00 hours, which is during the period when according to the opinion of the Medical Officers, the patient was conscious, cooperative and well oriented to time, place and person. Moreover, there is also endorsement in the medical papers made on 5.7.2009 at 7:05 p.m. to the effect that "Patient is conscious". Thus, the medical case record reveals that the patient (deceased Afsana) was conscious all throughout, from the time she was admitted till at least 7:05 p.m. 11.8 The second dying declaration which is in the nature of a first information report has been recorded by PW 15 Khumansinh Nanabhai Damor, Deputy Superintendent of Police, Vadodara (Rural) Division. This witness has deposed that at the time when the Executive Magistrate recorded the dying declaration, as their office was in Kothi compound, he came to the S.S.G. Hospital at 1:00 o'clock in the afternoon and as the victim was fully conscious and he had also ascertained with the Medical Officer that she was fully conscious, he had examined her orally. While putting questions to her, the victim said that she wanted to give a complaint against her husband, mother-in-law and father-in-law, and hence, he had recorded her complaint. In his cross- examination, the witness has admitted that when he went there, the victim and her relatives were talking. He has further Page 26 of 47 R/CR.A/892/2012 JUDGMENT stated that when he reached there, the victim was speaking clearly. In his cross-examination he has again stated that he had asked the Medical Officer and as the patient was conscious, he had taken steps to record the complaint. He has denied the suggestion that when he reached there, the patient was unconscious and that she could not speak. He has admitted that he has recorded the complaint at 13:15 to 14:00 hours. Thus, while the dying declaration came to be recorded at 12:45 to 13:00 hours, the first information report came to be recorded soon thereafter at 13:15 to 14:00 hours.
11.9 Thus, insofar as certification by a Medical Officer is concerned, at 11:57 hours, the Medical Officer has made an endorsement on the letter Exhibit 43, that his opinion was asked for as to whether the patient was in a fit state of mind to record her dying declaration and that "the patient is conscious". Thereafter, there is an endorsement made in the medical papers at 12:45 hours indicating that the patient is conscious, cooperative, well oriented to time, place and person. Within a span of less than an hour from the certification by the Medical Officer, the Executive Magistrate recorded the dying declaration. Though PW 12 the Special Executive Magistrate has not obtained any endorsement from the Medical Officer about the state of mind of the patient, he has deposed that the patient was conscious and that after putting questions to her he had found that she could understand the questions and has thereafter recorded her dying declaration. PW 15 Khumansinh Nanabhai Damor, Deputy Superintendent of Police, who recorded the first information report has also deposed that he had found the victim to be fully conscious and had obtained the oral opinion Page 27 of 47 R/CR.A/892/2012 JUDGMENT of the Medical Officer. Therefore, both these witnesses, who have recorded the respective dying declarations, have duly deposed that the patient was conscious and in a fit state of mind to give her statement. Considering the overall evidence that had come on record in light of the principles enunciated by the apex court in the decisions referred to hereinabove, there is no reason to disbelieve the versions given by the Executive Magistrate and the Deputy Superintendent of Police, more so, as they had no axe to grind against the appellants and had no reason to falsely implicate them by recording false dying declarations. Both the witnesses having deposed that the deceased was conscious and fit to make a statement, even if the dying declarations do not bear the endorsement of the Medical Officer certifying the state of mind of the deceased, it would not render the said dying declarations invalid.
12. Findings on Point II: Coming to the second point, viz. whether having regard to the nature of the burn injuries sustained by the deceased, was it possible to obtain her thumb impression on the dying declarations? The legal position in this regard has been enunciated by the Supreme Court in the case of State of Madhya Pradesh v. Dal Singh (supra), wherein the court has, on the question as to whether a 100% burnt person can put a thumb impression, held thus:
"22. So far as the question of thumb impression is concerned, the same depends upon facts, as regards whether the skin of the thumb that was placed upon the dying declaration was also burnt. Even in case of such burns in the body, the skin of a small part of the body, i.e. of the thumb, may remain intact. Therefore, it is a question of fact regarding whether the skin of the thumb had in fact been completely burnt, and if not, whether Page 28 of 47 R/CR.A/892/2012 JUDGMENT the ridges and curves had remained intact."
12.1 The evidence on record would, therefore, be required to be scrutinized to ascertain the nature of injuries sustained by the deceased and as to whether the evidence on record leads one to form the belief that Afsana could put her thumb impression on the dying declaration and the first information report.
12.2 Insofar as the burn injuries sustained by the deceased are concerned, PW 11 Anwarkhan Akbarkhan Pathan has, in his cross-examination, admitted that Afsana was not in a position to sign or put her thumb impression. On the other hand, PW 10 Rehanabibi Yusufbhai Shaikh has deposed that Afsana has sustained burn injuries all over her body, except four fingers on one hand and three fingers on the other hand, which were not burnt. Considering the issue involved, in the opinion of this court it would be more appropriate to refer to the testimonies of the Medical Officers in this regard. PW 7 Dr. Vaishakhi Yashwartray Shukla has deposed that both the hands of the deceased were burnt circumferentially till the palms. Only on the reverse side of the hands there were nominal burns. In her cross-examination, the witness has admitted that in this case it was not possible to obtain finger prints and that her footprint could have been taken. On the other hand, a perusal of the testimony of PW 13 Dr. Hitesh Vinodbhai Panchiwala, who treated Afsana, shows that the witness has deposed that the injury sustained on the right hand of the patient were 7% to 8%, two to three degree burns. Thus, as rightly submitted by the learned Additional Public Prosecutor, from the evidence that had come on record, there is nothing to show that the Page 29 of 47 R/CR.A/892/2012 JUDGMENT deceased had sustained burns in a manner that she could not put her thumb impression. Significantly, in the medical papers also at page 213 of the paper book, the left thumb impression of the deceased has been obtained, which makes it clear that her hands were not burnt to such an extent that she could not put her thumb impression. Moreover, the Executive Magistrate and the Deputy Superintendent of Police, who recorded the dying declaration of the deceased, were independent persons, who did not bear any animosity against the appellants and had no reason to falsely implicate them or to go to the extent of fabricating false record by obtaining thumb impression of some other person on the dying declarations. Besides, in the cross- examination of the Executive Magistrate he has not been sought to be confronted with the fact that the thumb impression on the dying declaration is not of Afsana or that Afsana's thumb impression could not have been obtained. The contention that in view of the extensive burn injuries sustained by the deceased Afsana, her thumb impression could not have been obtained on the dying declarations, therefore, does not merit acceptance.
13. Findings on Point III: The third point that arises for determination is having regard to the extent of burn injuries sustained by the deceased, whether she was in a position to speak so as to be able to give her statement.
13.1 On the question as to whether a person with 85% to 97% burn injuries like the deceased would be able to speak, the Supreme Court in case of Ramesh v. State of Haryana (supra) has held thus:
Page 30 of 47R/CR.A/892/2012 JUDGMENT "31. Law on the admissibility of the dying declarations is well settled. In Jai Karan v. State (N.C.T., Delhi), this Court explained that a dying declaration is admissible in evidence on the principle of necessity and can form the basis of conviction if it is found to be reliable. In order that a dying declaration may form the sole basis for conviction without the need for independent corroboration it must be shown that the person making it had the opportunity of identifying the person implicated and is thoroughly reliable and free from blemish. If, in the facts and circumstances of the case, it is found that the maker of the statement was in a fit state of mind and had voluntarily made the statement on the basis of personal knowledge without being influenced by others and the court on strict scrutiny finds it to be reliable, there is no rule of law or even of prudence that such a reliable piece of evidence cannot be acted upon unless it is corroborated. A dying declaration is an independent piece of evidence like any other piece of evidence, neither extra strong or weak, and can be acted upon without corroboration if it is found to be otherwise true and reliable. There is no hard and fast rule of universal application as to whether percentage of burns suffered is determinative factor to affect credibility of dying declaration and improbability of its recording. Much depends upon the nature of the burn, part of the body affected by the burn, impact of the burn on the faculties to think and convey the idea or facts coming to mind and other relevant factors. Percentage of burns alone would not determine the probability or otherwise of making dying declaration. Physical state or injuries on the declarant do not by themselves become determinative of mental fitness of the declarant to make the statement (See Rambai v. State of Chhattisgarh.
32. It is immaterial to whom the declaration is made. The declaration may be made to a Magistrate, to a Police Officer, a public servant or a private person. It may be made before the doctor; indeed, he would be the best person to opine about the fitness of the dying man to make the statement, and to record the statement, where he found that life was fast ebbing out of the dying man and there was no time to call the Police or the Magistrate. In such a situation the Doctor would be justified, rather duty bound, to record the dying declaration of the dying man. At the same time, it also Page 31 of 47 R/CR.A/892/2012 JUDGMENT needs to be emphasized that in the instant case, dying declaration is recorded by a competent Magistrate who was having no animus with the accused persons. As held in Kushal Rao v. State of Bombay, this kind of dying declaration would stand on a much higher footing. After all, a competent Magistrate has no axe to grind against the person named in the dying declaration of the victim and in the absence of circumstances showing anything to the contrary, he should not be disbelieved by the Court (See Vikas & ors. v. State of Maharashtra).
33. No doubt, the victim has been brought with 100% burn injuries. Notwithstanding, the doctor found that she was in a conscious state of mind and was competent to give her statement. Thus, the Magistrate had taken due precautions and, in fact, Medical Officer remained present when the dying declaration was being recorded. Therefore, this dying declaration cannot be discarded merely going by the extent of burns with which she was suffering, particularly, when the defence has not been able to elicit anything from the cross-examination of the doctor that her mental faculties had totally impaired rendering her incapable of giving a statement."
13.2 In the case of State of M.P. v. Dal Singh (supra), the Supreme Court, while dealing with the question as to whether a 100% burnt person can make a dying declaration, held thus:
"14. In Mafabhai Nagarbhai Raval v. State of Gujarat, this Court dealt with a case wherein a question arose with respect to whether a person suffering from 99% burn injuries could be deemed capable enough for the purpose of making a dying declaration. The learned trial Judge thought that the same was not at all possible, as the victim had gone into shock after receiving such high degree burns. He had consequently opined, that the moment the deceased had seen the flame, she was likely to have sustained mental shock. Development of such shock from the very beginning, was the ground on which the Trial Court had disbelieved the medical evidence available. This Court then held, that the doctor who had conducted her post-mortem was a competent person, and had deposed in this respect. Therefore, unless there Page 32 of 47 R/CR.A/892/2012 JUDGMENT existed some inherent and apparent defect, the court could not have substituted its opinion for that of the doctor's. Hence, in light of the facts of the case, the dying declarations made, were found by this Court to be worthy of reliance, as the same had been made truthfully and voluntarily. There was no evidence on record to suggest that the victim had provided a tutored version, and the argument of the defence stating that the condition of the deceased was so serious that she could not have made such a statement was not accepted, and the dying declarations were relied upon. A similar view has been reiterated by this Court in Rambai v. State of Chhattisgarh."
13.3 Thus, the percentage of burns alone would not determine the probability or otherwise of making the dying declarations. The physical state of injuries on the declarant does not by itself become determinative of the mental fitness of the declarant to make the statement. The court would, therefore, be required to appreciate the evidence on record to ascertain whether the deceased was in a position to make her statement.
13.4 The evidence on record may therefore, be adverted to. PW 4 Ahmedbhai Hussainbhai Shaikh, the father of the deceased, in his cross-examination, has denied the suggestion that when they met the deceased her voice was not clear. He has further denied the suggestion that his daughter Afsana was not able to speak. PW 6 Hafizabanu Yunusbhai Shaikh has, in her cross-examination, admitted that Afsana was in a semi- conscious condition and was speaking very slowly and kept on asking for water. She has stated that Afsana was speaking slowly and has denied that Afsana was talking in a very soft voice and stated that her speech was audible. PW 7 Dr. Vaishakhi Yashwantray Shukla has, in her cross-examination, Page 33 of 47 R/CR.A/892/2012 JUDGMENT agreed with the suggestion that the deceased had injuries on her lips and that if a person with injuries on the lips speaks, her speech would not be clear. PW 8 Saberabibi Mehboobbhai Malek, in her cross-examination has denied the suggestion that Afsana was not able to speak and has stated that she could speak till the last and that she was speaking in clear words. PW 11 Anwarkhan Akbarkhan Pathan has, in his cross- examination, stated that Afsana had stopped speaking, and hence, he did not have any occasion to talk to her. He has further stated that Afsana was not conscious and was not making gestures, etc. PW 12 the Special Executive Magistrate has deposed that when he went to meet the patient Afsana, she was able to speak and after having casual conversation with her, he had found that the patient was conscious and was able to understand the questions and had, therefore, informed her that her dying declaration was to be recorded. In his cross- examination he has admitted that the deceased had sustained burn injuries all over her body. He has denied that she was speaking haltingly and has stated that she was speaking the language, which one could comprehend. He has denied that the patient was in a semi-conscious condition.
13.5 PW 13 Dr. Hitesh Vinodbhai Panchiwala, in his cross- examination, has stated that when the patient was brought to him she was in a position to speak. He does not remember in which language she spoke. He has stated that the patient was speaking which he could hear. Whatever was stated by the patient was written down by him in the case papers. During the course of the cross-examination of the Medical Officer, an article titled critical appreciation of dying declaration by Dr. R.K. Gorea, Professor and Head, Forensic Medicine, G.M.C. Page 34 of 47 R/CR.A/892/2012 JUDGMENT Patiala, was shown to him. After reading it, he has stated that in terms of what has been written, the meaning was that in case of shock and burns, the injured person, due to impact of burn injuries as well as due to the effect of medicines, does not lose consciousness. In his cross-examination the witness has not agreed with the suggestion that in case where a person has sustained 87% to 95% burns, he loses consciousness. He has stated that he is not in a position to categorically state as to whether in such cases, the speech becomes unclear or whether it is comprehensible. The witness has admitted that in case of burn injuries, where the injured person has sustained injuries on the lips, his voice may not become unclear.
13.6 Thus, from the testimonies of the above referred witnesses, except for PW 11 Anwarkhan Akbarkhan Pathan, all the witnesses have deposed that Afsana was able to speak clearly and in a manner in which they could understand. Insofar as PW 11 Anwarkhan Akbarkhan Pathan is concerned he is a resident of Sarsavni village, to which the accused persons belong and is well acquainted with them and hence, may not have supported the prosecution case. Considering the fact that majority of the witnesses have stated that Afsana was in a position to speak, merely because she had sustained 85% to 97% burn injuries, it cannot be said that she was not in a position to make her dying declaration.
14. Findings on Point IV: In this case, it is an admitted position that multiple dying declarations have been given by the deceased. Initially, before the Medical Officers at the S.S.G. Hospital, the deceased had given case history to the effect that she had sustained accidental flame burns while refilling Page 35 of 47 R/CR.A/892/2012 JUDGMENT kerosene in stove while making tea on 5.7.2009 at 8.00 a.m. at her home in Sarsavni village, taluka Padra. This case history finds place several times in the medical case papers maintained by the S.S.G. Hospital. PW 14 Varsanbhai Gohaydabhai Rathwa, who was discharging duties as Duty A.S.I. at the S.S.G. Hospital has stated that at 21:30 hours on 5.7.2009, a vardhi had been given by Medical Officer, R.P. Gupta that a lady, by the name of Afsanabibi, wife of Arifbhai Parmar, aged 25 years, resident of Sarsavni village, taluka Padra, district Vadodara was working near the stove at home at 8 o'clock. At that time upon kerosene getting spilled accidentally, there were flames and the clothes that she was wearing caught fire and she had sustained burn injuries over her body and she was taken for preliminary treatment to Padra Government Hospital and from there she had been sent by way of referral memo for further treatment to the S.S.G. Hospital, where she has been admitted in Ward E/4 for treatment. During the course of treatment at 19:30 hours, the doctor has declared her to be dead.
14.1 Thus, the first version that has come on record is that Afsana had sustained burn injuries accidentally on account of kerosene having been spilled from the stove and her clothes having caught fire. PW 13 Dr. Hitesh Vinodhbhai Panchiwala, in his cross-examination, has stated that the patient had given history to the effect that while filling kerosene in stove while making tea at 8:00 o'clock in the morning she had sustained burns accidentally. However, soon thereafter, after her relatives arrived at the hospital, the dying declaration of the deceased came to be recorded by PW 12 Jitendrasinh Dolatsinh Desai, the Special Executive Magistrate, before whom Afsana Page 36 of 47 R/CR.A/892/2012 JUDGMENT has stated that her mother-in-law and husband had sprinkled kerosene over her and set her ablaze with a matchstick. Before the Executive Magistrate she has stated that she holds her mother-in-law, father-in-law and husband responsible for the incident. She has further stated that her mother-in-law, father- in-law and husband were present at the time of the incident. Upon being asked whether she wanted to say anything in particular, she had stated that she was brought in a vehicle to the hospital, at that time she was threatened that their names, namely, the names of her mother-in-law, father-in-law and husband, should not be given and that she should state that the clothes she was wearing had caught fire. Immediately thereafter, another dying declaration which came to be recorded by PW 15 Khumansinh Nanabhai Damor, who had recorded the first information report at the instance of deceased Afsana, wherein she has stated that at about 8 o'clock in the morning, her mother-in-law Umedben started goading her that she did not know how to cook and picked up a quarrel with her. When she confronted her mother-in-law as to why she was falsely maligning her, there was an exchange of words, at which point of time her mother-in-law Umedben and her father-in-law Mohammedbhai caught hold of her and her husband Arifbhai sprinkled kerosene from a can over her and lit a matchstick and set her ablaze, due to which she started shouting, whereupon her sister-in-law Mehmoodaben arrived there and covered her with a quilt and extinguished the flames. She had sustained burn injuries all over her body. She has further stated that her mother-in-law, father-in-law and husband have told her that she should not complain to the police against them and have threatened her in this manner.
Page 37 of 47R/CR.A/892/2012 JUDGMENT 14.2 PW 4 Ahmedbhai Hussainbhai Shaikh, viz., father of deceased Afsana, has, inter alia, deposed that when they went to the hospital, he found that his daughter has sustained severe burn injuries and there were bandages on her body and she was being treated and that she was speaking softly. She had told him, his wife and her maternal uncle and aunt, that her mother-in-law, father-in-law and husband had got together and burnt her. Her mother-in-law and father-in-law had caught hold of her and her husband had lit a matchstick. PW 5 Yunusbhai Imambhai Shaikh has stated that after they reached the hospital, upon asking Afsana as to what had happened, she has stated that her mother-in-law, father-in-law and husband had together set her ablaze. PW 6 Hafizabanu Yunusbhai Shaikh has deposed that when they reached the hospital and asked Afsana as to what had happened she had stated that her mother-in-law, father-in-law and husband had burnt her. PW 8 Saberabibi Mehboobbhai Malek has stated that when they went to the hospital, in the ward, Afsana was in a totally burnt condition and her entire body was bandaged. Afsana was talking to them and when they asked her as to what had happened, she had informed them that her mother-in-law, father-in-law and husband had burnt her with kerosene. PW 11 Anwarkhan Akbarkhan Pathan has deposed that on the day of the incident he had set out from his house at about 7:30 to 8:00 in the morning and people were running and upon asking them as to why they were running, he was told that someone had got burnt. He also ran. When he reached there he saw that Mehmoodaben has extinguished the flames on the lady and a phone call was made to 108. He had taken them to the Padra Government Hospital in a 108-van, after which, the doctor told him to call her family members, and hence, he had gone to call Page 38 of 47 R/CR.A/892/2012 JUDGMENT her husband Arifbhai from Sardar Market, Padra, whereafter Arifbhai came. They were told to take her from the Government Hospital to Vadodara, and hence, they brought her to the SSG Hospital. The witness has further stated that he had reached after the flames on Afsana's body had been extinguished. He has admitted that when he reached the house Mehmooda and the neighbours were present and none of the accused persons were present. The witness has further stated that after they reached the Padra Hospital, the Padra Police Station was informed about the incident. He has admitted that he had informed the Padra Police Station on phone that Afsana has sustained burns in the incident and they brought her to the Padra Hospital. The police has come to the Padra Hospital and met him. He has stated that when the police recorded her statement, he was present and that Afsana had stated that when she went to take the can, kerosene got spilled, there were flames and her clothes caught flames. In the cross-examination of the witness it has further come out that when Afsana was brought to the hospital, at that time Mehmooda (her sister-in-law), accused Umedben and Arifbhai had also come with them and no one else was with them. In his cross-examination it has further come out that after Afsana was admitted to the hospital, her husband Arifbhai, Umedben, he and Mehmooda were present and that except for the four of them, no one else was present. Subsequently Afsana's relatives had come.
14.3 From the evidence referred to hereinabove, the first version given by Afsana after she was taken to the hospital was that she had sustained burn injuries accidentally on account of kerosene being spilled while trying to refill the stove Page 39 of 47 R/CR.A/892/2012 JUDGMENT while she was making tea in the morning. However, as is evident from the testimony of PW 11 Anwarkhan Akbarkhan Pathan, from the time Afsana sustained burn injuries, till her relatives arrived at the S.S.G. Hospital, Afsana was accompanied by her in-laws. Subsequently, her relatives, namely, her parents, maternal aunt, etc. came to the S.S.G. Hospital. According to the said witnesses, the version given by Afsana was that her father-in-law, mother-in-law and husband had set her ablaze. The Special Executive Magistrate (PW 12) recorded Afsana's dying declaration, wherein she had stated that her mother-in-law and husband had sprinkled kerosene over her and lit a matchstick and set her ablaze. Soon thereafter, a first information report came to be recorded by PW 15 Khumansinh Nanabhai Damor before whom Afsana has given a slightly more elaborate version and has stated that her father-in-law and mother-in-law had caught hold of her and her husband poured kerosene from a can and lit a matchstick and set her ablaze. Thus, contradictory versions have come on record. One set of dying declarations stating that the deceased has sustained burns accidentally has been given first in point of time when she was brought to the hospital and the subsequent set of dying declarations have been given after her parents and relatives arrived at the hospital. The question that arises for consideration is as to which of such dying declarations should be accepted. In this regard Supreme Court in the case of Sudhakar v. State of Madhya Pradesh (supra) while considering the question as to in cases involving multiple dying declarations made by the deceased, which one of various dying declarations should be believed by the court and what are the principles governing such determination, observed that this becomes more important where multiple Page 40 of 47 R/CR.A/892/2012 JUDGMENT dying declarations made by the deceased are either contradictory or are at variance with each other to a large extent. It was held that the test of common prudence would be to first examine which of the dying declarations is corroborated by other prosecution evidence. Further, attendant circumstances, condition of deceased at the relevant time, medical evidence, voluntariness and genuineness of statement made by deceased, physical and mental fitness of deceased and possibility of deceased being tutored, are some of the factors which would guide exercise of judicial discretion by court in such matters.
14.4 In the facts of the present case, while from the dying declarations recorded by the Executive Magistrate and the Deputy Superintendent of Police, it emerges that the first version given by the deceased was a false version in view of the threat administered to her by her in-laws, the evidence on record clearly shows that at the time when the deceased was brought to the hospital, she was accompanied solely by her in- laws. On the other hand, the subsequent version was given by the deceased after her relatives arrived at the hospital, and hence, what would be required to be examined is as to whether the subsequent statements have been made under the influence of tutoring by her relatives. Thus, either the first set of statements has been made under threat or the subsequent set of statements has been made on account of tutoring. To consider the veracity of such statements, it would be necessary to examine the evidence that has come on record so as to ascertain as to which version is the correct version or whether none of the dying declarations can be believed.
Page 41 of 47R/CR.A/892/2012 JUDGMENT 14.5 As noted earlier, the medical case history recorded by the Medical Officers is that the deceased has stated that while filling kerosene in the stove while making tea in the morning, she had accidentally sustained burn injuries. Therefore, it would be necessary to examine the scene of offence panchnama to ascertain as to whether such version finds support therefrom. A perusal of the scene of offence panchnama Exhibit 15 shows that it has been drawn on 5.7.2009 at 17:00 to 18:30 hours. As per the scene of offence panchnama, the place was a residential house and the floor was an earthen floor. There were remnants of red coloured cloth lying on the floor and there were spots of kerosene on the floor and scattered burnt cloths were lying there. The cloths smelt of kerosene. Touching the wall was a wooden cot with plastic strings. Near the leg of the bed there were four scattered matchsticks, out of which three sticks were burnt. There was one old torn quilt lying there which smelt of kerosene and there were remnants of burnt cloth on the quilt. Towards the northern wall of the house, next to a tin container, there was a yellow coloured plastic can with 'Dhara' written on it which did not have a cork. The smell of kerosene was emanating from the can. The house had brick walls with a tiled and tin sheet roof and earthen floor. In front of the house there was an open space in which there was a shed with a platform. In the shed, towards the north there was a stove. Thus, at the scene of incident, no stove has been found to support the defence version, namely that while filling kerosene in a stove there were flames and Afsana's clothes caught fire. Moreover from the scene of offence of panchnama, the cooking area appears to be in the shed outside the house. The presence of Page 42 of 47 R/CR.A/892/2012 JUDGMENT remnants of burnt cloths and the quilt supports the version given by the deceased in the first information report, wherein she has stated that upon being set ablaze, she started screaming whereupon her sister-in-law, Mehmooda came and put a quilt over her and extinguished the fire. While it is true that both the panchas of the scene of offence panchnama have turned hostile, the panchnamas have been duly proved through the testimony of the Investigating Officer. PW 8 Saberabibi, in her cross-examination, has denied that the stove was inside the house and has stated that those people used to cook outside. The witness has stated that if she is asked as to whether there was stove in the room where these people were staying, then it is false. She has admitted that they were always cooking outside the house. Thus, the facts elicited in the cross-examination of witness Saberabibi clearly support the panchnama of the scene of offence, namely that the cooking area was outside the house and not inside.
14.6 Having regard to the above evidence, the first version given by the deceased that she had sustained burn injuries while refilling kerosene in a stove while making tea, does not find support from the documentary evidence on record inasmuch as there are no signs of articles for making tea or any stove at the place of the incident.
14.7 Apart from the fact that the version does not support from the documentary evidence, from the testimony of the witnesses who are related to the deceased, it has clearly come on record that there were serious disputes between the parties. Afsana, time and again used to return to her parental home. In the cross-examination of PW 4 Ahmedbhai Page 43 of 47 R/CR.A/892/2012 JUDGMENT Hussainbhai Shaikh, father of deceased, it has been suggested that when his granddaughter turns two and half years old, she has to be given a name and there is a custom of giving a small or big ornament. That, as the witness was not in a position to give Reshma (Afsana's daughter) an ornament, there were quarrels between his daughter Afsana and his son-in-law. In his cross-examination, nothing has been suggested to contradict the witness regarding the allegations of harassment. The witness has not been contradicted as regards the fact that his daughter has come back to her parental home as her mother- in-law and her husband were subjecting her to extreme harassment. There is no cross-examination as regards the mother of the deceased having gone to leave the deceased at her matrimonial home and her mother-in-law having refused to let her come in and having beaten her. The witness has also not been cross-examined as regards the deceased having been driven away on the same day in the evening and she having gone to aunt Sabirabibi's house. Similarly, though other related witnesses have also deposed regarding Afsana complaining about ill treatment at the hands of the accused, in the cross- examination they have been sought to be contradicted by stating that no complaint has been lodged in this regard; however, the averments with regard to the dispute between the parties have not been sought to be contradicted. From the cross-examination of PW 10 Rehanabibi Yusufbhai Shaikh, it has been elicited that from the time of her marriage till her daughter was born, Afsana used to come peacefully to their house but after her daughter was born, she would come after there was a fight. She has voluntarily stated that the accused would drive her (Afsana) out, and hence, she used to come.
Page 44 of 47R/CR.A/892/2012 JUDGMENT 14.8 Thus, from the overall evidence which has come on record, it is evident that things were not well between Afsana and the accused and time and again, Afsana was driven away from her matrimonial home because of quarrels and disputes. Two versions have come on record as regards the manner in which Afsana was burnt by way of dying declarations made by the deceased. The first version says that the deceased has sustained accidental burns, which, however, does not find support from the evidence on record. The subsequent version, namely, that her in-laws and her husband had set her ablaze, finds support from the testimonies of the witnesses as well as from the scene of offence panchnama. Under the circumstances, the court is of the view that the subsequent version recorded by the Executive Magistrate and the Deputy Superintendent of Police, both of whom are independent persons, deserves to be accepted.
14.9 In view of the above discussion, the court has no hesitation in holding that the first dying declaration was not voluntary and not made with the free will of the deceased for the reason that when the deceased was brought to hospital she was accompanied by the accused and their relatives and the deceased had been threatened by the accused not to name them. When the history was given before the Medical Officer, the accused and their relatives were present by the side of the deceased. The statement of the deceased was totally tilted in favour of her husband and in-laws and the version put forth was that there were accidental flames while refilling kerosene in a stove while making tea at home. This appears to be factually incorrect inasmuch as if she had caught fire while refilling kerosene in stove, there would be no Page 45 of 47 R/CR.A/892/2012 JUDGMENT question of kerosene falling on her. As discussed hereinabove the scene of offence panchnama does not show either the presence of a stove or remnants of tea or any other food article that she may be cooking. On the contrary, the evidence on record shows that cooking was done outside the room and not inside it. Furthermore, within a short while after she gave her first statement, after her own relatives arrived and the deceased was no longer surrounded only by the accused persons and their relatives, she gave another version of the manner in which the incident took place. The second dying declaration was recorded at 12:45 on the same day. The statement was recorded by PW 12 the Executive Magistrate and the subsequent dying declaration was recorded by PW 15 the Deputy Superintendent of Police. The subsequent dying declarations recorded by the Executive Magistrate and the Deputy Superintendent of Police are in conformity with each other and are duly supported by the prosecution witnesses.
14.10 As discussed earlier the theory of the deceased catching fire from a stove is neither probable nor possible in the facts of the case. The kind of burn injuries that she has sustained, clearly show that she was deliberately put on fire rather than being injured as a result of an accidental fire. Besides the deceased herself, has stated the reason behind her making a false declaration at the first instance. It is clear from the evidence adduced on record that the accused and their relatives were present at the time of making the first dying declaration and the deceased has stated wrong facts on account of the threat administered by her in-laws and hence, is not credible and trustworthy. In the considered view of this court the subsequent dying declarations are authentic, Page 46 of 47 R/CR.A/892/2012 JUDGMENT voluntary and duly corroborated by other prosecution witnesses including the medical evidence and the scene of offence panchnama. Thus, the dying declarations, read in conjunction with the statement of the prosecution witnesses can safely be made the basis of conviction of the accused.
15. For the reasons recorded hereinabove, this court is in complete agreement with the findings recorded by the trial court and finds no reason to take a different view. The appeal, therefore, fails and is, accordingly, dismissed. The impugned judgment and order of conviction and sentence dated 28th March 2012 passed by the learned 8th Additional District and Sessions Judge (Ad Hoc), Vadodara in Sessions Case No.184 of 2009 is hereby confirmed.
(HARSHA DEVANI, J.) (A.S. SUPEHIA, J.) karim Page 47 of 47