Gujarat High Court
Bhikhabhai Arsibhai Vadhiya vs State Of ... on 25 March, 2014
Author: Bhaskar Bhattacharya
Bench: Bhaskar Bhattacharya, J.B.Pardiwala
R/CR.A/2113/2008 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL APPEAL NO. 2113 of 2008
FOR APPROVAL AND SIGNATURE:
HONOURABLE THE CHIEF JUSTICE MR. BHASKAR BHATTACHARYA
and
HONOURABLE MR.JUSTICE J.B.PARDIWALA
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1 Whether Reporters of Local Papers may be allowed to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the judgment ?
4 Whether this case involves a substantial question of law as to the interpretation of the
Constitution of India, 1950 or any order made thereunder ?
5 Whether it is to be circulated to the civil judge ?
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BHIKHABHAI ARSIBHAI VADHIYA....Appellant(s)
Versus
STATE OF GUJARAT....Opponent(s)/Respondent(s)
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Appearance:
MS KIRAN D PANDEY, ADVOCATE for the Appellant(s) No. 1
MRS MOXA THAKKAR ADDITIONAL PUBLIC PROSECUTOR for the Opponent(s)/Respondent(s) No. 1
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CORAM: HONOURABLE THE CHIEF JUSTICE MR.
BHASKAR BHATTACHARYA
and
HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 25/03/2014
CAV JUDGMENT
(PER : HONOURABLE MR.JUSTICE J.B.PARDIWALA) This appeal is at the instance of a convict-accused of the Page 1 of 57 R/CR.A/2113/2008 CAV JUDGMENT offence of murder of his wife, and is directed against an order of conviction and sentence dated 26th February, 2008, passed by the learned Additional Sessions Judge, 6th Fast Track Court, Veraval, in Sessions Case No. 66 of 2006, by which the learned Additional Sessions Judge convicted the appellant for the offence punishable under Section 302 of the Indian Penal Code. The learned Additional Sessions Judge sentenced the accused- appellant to undergo life imprisonment with fine of Rs. 1,000/- for the offence punishable under Section 302 of the Indian Penal Code, and in default of payment of fine, to undergo further simple imprisonment of one year.
2. The case of the prosecution:-
2.1 The deceased was married to the accused and during the wedlock, two sons and two daughters were born. The marital relations of the deceased with the accused were highly strained past two to three years before the date of the incident. The accused was harbouring doubts as regards the character of his wife, the deceased and therefore, on 21st July 2006, while the deceased was sleeping on a cot inside the house, the accused poured kerosene and set her on fire by striking a matchstick.
2.2 The incident in question occurred at around 11'O Clock in the forenoon at the house of the deceased. It appears that the people residing in the neighbourhood of the deceased shifted her to the Chorwad Government Dispensary for treatment, and thereafter, was referred to the Junagadh Government Hospital for further treatment.Page 2 of 57 R/CR.A/2113/2008 CAV JUDGMENT
2.3 On the very same day i.e. on 21st July, 2006, after being admitted at Junagadh Government Hospital, the Police recorded the first information report, Exh.26. In the first information report, Exh.26, the deceased stated that she was married to the accused past ten years and during the wedlock, four children were born. She further stated that past 2-3 years, her marital relations with the accused-husband were highly strained and frequent quarrels used to ensue between the two. On 21st July, 2006, at around 11'O Clock in the forenoon, the deceased was at her house and her husband, the accused was also present at the house. Since there was no work left in the house to be done, the deceased went off to sleep, and all of a sudden found herself on fire. She has further stated that her petty-coat and the blouse had caught fire, and the husband, the accused, was standing besides her holding a container of kerosene and told her that he wanted to kill her. She has further stated that she removed her petty-
coat and came out running in the falia. She has also stated that she jumped into a water tank and started raising shouts. On hearing her shouts, one of her daughters and one of her sons, who were playing outside, came running and people from the neighbourhood also gathered at her house. She has stated in the first information report that at that point of time, her husband, the accused told her to get out of the water otherwise she would get blisters on her body. She has further stated that her husband took her out from the water tank and made her to lie in the house. In the meantime, one Shantiben and her husband Jagabhai, residing next to the house of the deceased, came and shifted the deceased to a hospital. By that time, the elder daughter of the deceased namely Daksha also returned home from the school and went to village Gadu Page 3 of 57 R/CR.A/2113/2008 CAV JUDGMENT to inform about the incident to the father of the deceased. The deceased has stated that her neighbours Shantiben and Jagabhai called for a rickshaw and by that time her father also reached her home. All the three together first took the deceased to the Chorwad Government Hospital, and from their, the deceased was taken to the Junagadh Government Hospital for further treatment. She stated in the first information report that she was completely conscious and that she had sustained burn injuries on her chest, both the legs, waist and both the lower and upper limbs. In her first information report, she has further stated that the cause for the incident was that her marital relations with the accused were highly strained and the accused used to frequently quarrel with her, and therefore, while sleeping, the accused poured kerosene and by striking a matchstick, set her on fire as a result she sustained severe burn injuries.
2.4 On the strength of the first information report, the investigation had commenced. While the deceased was at the Junagadh Government Hospital, the Investigating Officer forwarded a Vardhi, Exh.16 to the Executive Magistrate, for the purpose of recording of the dying declaration of the deceased. Accordingly, the dying declaration Exh.17 was recorded by the Executive Magistrate, Junagadh, in a questionnaire form, after being satisfied that the patient was conscious.
2.5 It appears that on 26th July, 2006, the deceased succumbed to the injuries at the Junagadh Government Hospital. An inquest panchnama Exh. 21 of the deadbody of the deceased was drawn in presence of the panch witnesses. The deadbody of the deceased was sent for postmortem Page 4 of 57 R/CR.A/2113/2008 CAV JUDGMENT examination and the postmortem examination report revealed that the cause of death was septicemia due to extensive burns resulting in shock and cardio respiratory failure.
2.6 The scene of offence panchnama, Exh.29 was also drawn on 22nd July, 2006, in presence of the panch witnesses. The panchnama of the person of the deceased was drawn Exh. 31. On 23rd July, 2006, the accused was arrested and the panchnama of the person of the accused Exh.33 was drawn in presence of the panch witnesses. The clothes worn by the accused were collected and sent to the Forensic Science Laboratory for chemical analysis. The medical certificates of the injuries sustained by the deceased, Exhs. 53 and 54 were collected by the Investigating Officer. The statements of various witnesses were also recorded.
2.7 On conclusion of the investigation, the Investigating Officer filed a charge-sheet in the Court of the learned Judicial Magistrate First Class, Maliya Hati.
2.8 As the case was exclusively triable by the Sessions Court, the learned Judicial Magistrate First Class, Maliya Hati, committed the case to the Sessions Court under Section 209 of the Criminal Procedure Code.
2.9 The Sessions Court framed charge against the accused Exh.1 and a statement of the accused was recorded. The accused did not admit the charge and claimed to be tried.
3. The prosecution adduced the following oral evidence in Page 5 of 57 R/CR.A/2113/2008 CAV JUDGMENT support of its case.
1. P.W 1 Dr. Hitesh Kanjibhai Dhodiya, Exh.6, Medical Officer of Chorwad Dispensary.
2. P.W 2 Dr. N.P Buch, Exh.9, Medical Officer of Junagadh Government Hospital.
3. P.W 3 Dr. Devshibhai Vajesinhbhai, Exh.15, Executive Magistrate who recorded the dying declaration of the deceased.
4. P.W 4 Dr. Dhirendra Pranlal, Exh.18, Medical Officer of Junagadh Government Hospital.
5. P.W 5, Dr. Ashok Laxmidas Samani, Exh.19, Medical Officer who performed the postmortem of the deceased.
6. P.W 6, Balwantbhai Prabhatbhai, Exh.24, Police witness.
7. P.W 7, Rameshbhai Bhikhabhai, Exh.28, Panch witness
8. P.W 8, Shilpaben Arsibhai, Exh. 30, Panch witness
9. P.W 9, Umarbhai Tapubhai, Exh. 32, panch witness
10. P.W 10, Bipinbhai Rundabhai, Exh. 34, Panch witness
11. P.W 11, Rajalben Jagbalbhai, Exh. 35, eyewitness
12. P.W 12, Bhavnaben Jagmalbhai, Exh.36, eyewitness
13. P.W 13, Khimjibhai Shankarbhai, Exh. 37, Head Constable posted at Junagadh Government Hospital
14. P.W 14, Huseinbha Ibrahimkhan, Exh.40, Investigating Officer
15. P.W 15, Virambhai Sindhibhai, Exh. 47, Investigating Officer.
4. The following pieces of documentary evidences were adduced by the prosecution:-
1. Medical certificate of the deceased Exh. 8
2. Medico-legal certificate of the deceased, Exh.11
3. Vardhi forwarded to the Executive Magistrate, Junagadh Page 6 of 57 R/CR.A/2113/2008 CAV JUDGMENT for recording of dying declaration Exh.16,
4. Dying declaration, Exh.17
5. Inquest panchnama, Exh.21
6. postmortem note, Exh. 23
7. The scene of offence panchnama, Exh.29
8. Panchnama of the person of the deceased, Exh.31
9. Panchnama of the person of the accused after his arrest, Exh.33
10. D.O letter made to hospital police chowky, Junagadh, Exh.38
11. The writing made to the Executive Magistrate, Junagadh to fill the inquest, Exh. 39
12. The Special report of C.R No.I-27/06, Exh. 42
13. D.O letter of PSO, Chorvad, Exh. 43
14. The writing made to add Sec. 302 IPC, Exh. 44
15. The writing made to Police Officer, Junagadh by Chorvad Police Station, Exh. 45
16. VHF made to "B" Divn. Police Station, Junagadh, Exh. 48
17. VHF made to Chorvad Police Station, Exh. 49
18. The writing made to PSI, Chorvad by Dr. D.K. Dholiya, Exh.50,
19. VHF made to Police Officer, Junagadh, Exh.51
20. The FSL report of the local place, Exh. 52
21. The writing made to the Medical Officer to conduct medical examination of the accused, Exh. 54
22. The writing made to the Taluka Development Officer, Maliya Hatina to make map of local place, Exh.55
23. Despatch entry, Exh. 56 Page 7 of 57 R/CR.A/2113/2008 CAV JUDGMENT
24. The receipt of FSL, Exh. 57
25. The writing made to Chorvad Police Station, Exh. 58,
26. The receipt in respect of handing over the deadbody, Exh.60
27. The letter informing about the death of the victim, Exh. 61
28. The writing made to FSL, Junagadh, Exh. 63
29. The map of the local place, Exh. 64
30. The forwarding letter of FSL Junagadh, Exh.65
31. The report of FSL, Exh.66
5. After completion of the oral as well as the documentary evidence of the prosecution, the statement of the accused under Section 313 of the Criminal Procedure Code was recorded, in which the accused stated that the complaint was a false one and he was innocent. The accused further stated that he learnt through Rajvi that while preparing food, the deceased poured kerosene on her body and set herself on fire.
6. At the conclusion of the trial, the learned trial Judge convicted the accused of the offence under Section 302 of the Indian Penal Code, and sentenced him as stated hereinbefore.
7. Being dissatisfied, the accused appellant has come up with this appeal.
8. Submissions on behalf of the accused-appellant:
Ms. Kiran Pandey, the learned Advocate appearing for the accused-appellant submitted that the trial Court committed a serious error in finding the accused-appellant guilty of the Page 8 of 57 R/CR.A/2113/2008 CAV JUDGMENT offence of murder of his wife punishable under Section 302 of the Indian Penal Code. Ms. Pandey submitted that the trial Court committed a serious error in taking the view that the case was one of homicidal death and not suicidal. Ms. Pandey submitted that all the circumstances emerging from the record of the case points only towards the theory of suicide and not homicidal death.
Ms. Pandey submitted that the trial Court committed a serious error in placing reliance on the two dying declarations as they are inconsistent with each other. In such circumstances, according to Ms. Pandey, no credence could be given to such a piece of evidence. Ms. Pandey submitted that adverse inference ought to have been drawn against the prosecution for not examining the important witnesses in the course of the trial. Ms. Pandey lastly submitted that having regard to the nature of the injuries, more particularly the parts of the body affected, it could be said that the case is one of suicide and not homicide, as alleged by the prosecution. Ms. Pandey led much emphasis on the fact that the medical evidence on record suggests that there were no burn injuries on the palms of the deceased, which indicates that the deceased had committed suicide.
In such circumstances referred to above, Ms. Pandey prays that there being merit in this appeal, the same deserves to be allowed and the order of conviction and sentence imposed upon the accused-appellant be set aside.
9. Submissions on behalf of the State:
Page 9 of 57 R/CR.A/2113/2008 CAV JUDGMENTMs. Moxa Thakkar, the learned Additional Public Prosecutor vehemently opposed this appeal and submitted that the trial Court committed no error in finding the accused- appellant guilty of the offence of murder of his wife by pouring kerosene on her body and thereafter, setting her on fire by striking a matchstick. Ms. Thakkar submitted that there is cogent, clear and convincing evidence to hold the accused guilty for the offence of murder in the form of the two dying declarations. Ms. Thakkar submitted that there is no inconsistency worth the name in the two dying declarations as argued by the learned Advocate appearing for the accused- appellant. Ms. Thakkar submitted that the theory of suicide put forward by the defence is not consistent with the evidence on record. Ms. Thakkar submitted that kerosene was found on the mattress. The mattress was spread on the cot on which the deceased was sleeping at the time of the incident, which corroborates the version of the deceased as reflected from her two dying declarations. Ms. Thakkar also submitted that even in the history of the incident narrated before the doctor, the deceased stated that it was her husband, the accused, who had set her on fire by pouring kerosene while she was sleeping.
Ms. Thakkar submitted that there is no merit in the submission canvassed on behalf of the accused-appellant that the important witnesses were not examined by the prosecution in the course of trial, and therefore, adverse inference should be drawn against the prosecution for the same. Ms. Thakkar submitted that if already overwhelming evidence is available and examination of other witnesses would only be a repetition or duplication of the evidence already adduced, the non-Page 10 of 57 R/CR.A/2113/2008 CAV JUDGMENT
examination of such other witnesses were not be material. According to Ms. Thakkar, in such a case, the trial Court would be well justified to scrutinize the trustworthiness of the evidence adduced.
In such circumstances referred to above, Ms. Thakkar would submit that there being no merit in this appeal, the same be dismissed and the order of conviction and sentence passed by the trial Court against the accused-appellant be affirmed.
10. Having heard the learned counsel appearing for the parties, and having gone through the materials on record, the only question that falls for our consideration in this appeal is whether the trial Court committed any error in finding the accused-appellant guilty of the offence of murder of his wife, punishable under Section 302 of the Indian Penal Code.
11. Before we proceed to deal with the rival submissions canvassed on either side, we deem it necessary to look into the oral evidence led by the prosecution in details.
11.1 The PW.1 Dr. Hitesh Kanjibhai Dhodiya in his evidence Exh.6 has deposed that on 21/7/2003 he was serving as a Medical Officer at the Chorvad dispensary and at that point of time a patient, named Rasilaben Bhikhabhai, a resident of Khorasa Faliya was brought at the hospital by one Nagabhai at 3.30 in the afternoon without a Police Yadi with burn injuries for the purpose of treatment. He has deposed that preliminary treatment was given to the patient and at that point of time he had noticed that smell of kerosene was there Page 11 of 57 R/CR.A/2113/2008 CAV JUDGMENT in the body of the patient. The upper part of the body i.e. both the upper limbs were burnt, both the legs were also burnt. He has further deposed that her private part had also burnt. Some part of the stomach and chest was also burnt. Her back portion and parts of the buttocks were also burnt. He has deposed that the patient was in need of further treatment and accordingly was referred to the Junagadh Hospital with a Referring Note, Exh.7. He has also deposed that he had issued a medical certificate Exh.8 as regards the injuries which were found on the body of Rasilaben. He has deposed that there were almost 75% of burns all over the body which included some of the vital parts of the body. He also deposed that there were 1st to 2nd degree burns over the body. He has also deposed that due to such burn injuries, chances of her survival were very remote, as due to the burn injuries on the vital parts of the body the patient would be more prone to infection. He has also deposed that if kerosene was poured on the body of a person and set on fire with the intention of causing the death of that person, then the injuries which were sustained by Rasilaben were possible. In his cross-examination he has deposed that it was not true that when the patient was brought at the hospital, she was unconscious. He has also deposed that there were no burn injuries on both the soles of the feet. He deposed that he had no idea that if a person had not sustained burn injuries on the soles of the feet then it could be a case of accident or suicide. In his cross-examination he deposed that on account of excruciating pain due to burn injuries, the mental condition of the patient would also get affected. He has also deposed that at the time of giving preliminary treatment he had not given any such medicines which would keep the patient drowsy. He also deposed that it Page 12 of 57 R/CR.A/2113/2008 CAV JUDGMENT was not true that in all cases of burn injuries, with a view to provide relief to the patient from pain such patient would be administered medicines which would keep him in drowsiness. He has deposed that he had administered an injunction of a pain-killer and the same was Dyclonac. He has also deposed that it was true that in the case of Rasilaben, he was not able to give a definite opinion whether the burn injuries were sustained as a part of an attempt to commit suicide or those were accidental or homicidal.
11.2 The PW.2 Dr. Nikhil Pushkarrai Buch in his evidence Exh.9 has deposed that on 21/7/2006 he was on duty at the Junagadh Government Hospital as a Medical Officer and at that point of time a patient, named, Rasilaben Bhikhabhai was brought by her father Nagabhai with a history of Rasilaben's husband pouring kerosene on her and thereafter setting her on fire. He has deposed that the patient was brought at the hospital with a Referring Note issued by the Chorvad Primary Health Center for further treatment. He has deposed that the patient had first and second degree burns all over the body. The patient had also sustained more than 60 to 65% of burns all over the body. The most affected parts of the body were both the hands, both the legs, lower part of the chest and stomach including her private parts. As it was a medico-legal case, the P.W.2 Dr. Buch forwarded a Yadi to the Hospital Police Chowki for the purpose of recording of the Dying Declaration by the Executive Magistrate. Dr.Buch has deposed that while the patient was under treatment, at that point of time, on 21/7/2006, the Executive Magistrate recorded the Dying Declaration of the victim and while the dying declaration Page 13 of 57 R/CR.A/2113/2008 CAV JUDGMENT was being recorded, Dr.Thanki was present along with the Executive Magistrate. He has also deposed that the Certificate as regards the mental condition of the patient was in the hand- writings of Dr.D.P.Thanki. He has also deposed that he had issued a certificate as regards the injuries, Exh.11. According to Dr.Buch, the burn injuries over the body of the victim were grievous in nature and were sufficient in the ordinary course of nature to cause death. He has deposed that in view of the history of the incident which was narrated, if kerosene was poured on the body of any person and thereafter such person was set on fire, then the injuries which the victim had sustained were possible and the death would also occur due to such injuries. Dr.Buch produced all indoor as well as the out- door case papers, Exh.13. In his cross-examination he deposed that ordinarily in cases of burn injuries, the patient is administered drugs which would reduce the pain. He also deposed that it was true that if such medicines contained more percentage of sedatives, then it would affect the brain directly. He also deposed that it was true that in cases of burns, with a view to reduce the pain all medicines which are administered would have a direct effect on the nervous system of the patient. He also deposed that in cases of burn injuries the process of dehydration starts but it would all depend on the age of the patient, the physical constitution of the patient and the nature of burn injuries on the body. Ordinarily the process of dehydration would start after two hours from the time of sustaining the burns. He has deposed that it was true that the patient was brought at Junagadh Hospital almost 6 hours after the burn injuries were sustained. He has deposed that it was not true that when he examined the patient, the process of dehydration had already started and the patient was under the Page 14 of 57 R/CR.A/2113/2008 CAV JUDGMENT influence of such process of dehydration. He clarified that he did not want to convey that the process of dehydration had not at all commenced in the case of the patient. He further clarified that the content of water in blood had started reducing but at the same time the patient was conscious. He has further deposed that on account of reduction of the percentage of water in the body and with passage of time the proteins and sodium in the body gets reduced. Dr.Buch deposed that such process or reduction of water content in the body due to burn injuries in medical terminology is called homo-dygenic of blood, meaning to say the components of hemoglobin gets separated from the blood. He also clarified that it was true that due to such process the vital organs of the body like brain, heart, kidney, liver etc. are directly affected and gradually the functioning becomes passive. He deposed that it was not true that such process gets completed within 4 hours from the time of sustaining of the burn injuries. However, he clarified that it was true that the process of homo- dygenic in the body would commence immediately on the burns being sustained. He further deposed in his cross- examination that at the time of admission of the patient in the hospital medicines and injections were administered and the same were administered as an out-door patient. He further deposed that none of the medicines and injections which were prescribed by him contained any sedatives. He also denied that the medicines which were prescribed by him had an effect like anesthesia. Dr. Buch deposed that the patient remained in his company for around 15 to 20 minutes. He also deposed that it was true that in the medico-legal certificate issued, there was no mention of the mental condition of the patient. Dr.Buch further deposed in his cross-examination that he did Page 15 of 57 R/CR.A/2113/2008 CAV JUDGMENT not agree with the suggestion that the patient with burn injuries would remember more those persons with whom he had enmity. He also deposed that it was true that the patient was not given any treatment as an indoor patient by him. He also deposed that it was true that when the final statement of the patient was recorded, at that point of time he was not present. He has also deposed that he had no idea as to when the police had arrived at the hospital. He denied the suggestion that the patient had not narrated any history of the incident before him. He also denied the suggestion that whatever history was provided to him, the same was by the relatives. He further deposed that it was true that in cases of burns some parts of the body would remain unaffected. He denied the suggestion that considering the same, i.e. the parts of the body which are not affected, it could be determined whether the incident was an accident or a suicide or homicide. He deposed that it was true that in some cases of burns, the soles of the feet, the face and part of the head are quite often seen to be not affected. He deposed that he was not able to state that if the soles of the feet, face and head are not burnt, then considering the same, it could be decided as to how the incident might have occurred. He denied the suggestion outright that in such circumstances, if the soles of the feet, the face and the head were not found to be affected by burns, then such cases were always one of suicide and not homicide. He deposed that it was true that he was not able to opine in clear terms whether the victim was set on fire by pouring kerosene on her or not. He further deposed that it was true that there were no burn injuries on both the soles of the feet and face of Rasilaben. Dr. Buch further deposed that it was true that in cases of burns septicemia would result for number Page 16 of 57 R/CR.A/2113/2008 CAV JUDGMENT of reasons. According to Dr.Buch septicemia could be second important factor for the cause of death of those persons having sustained burns. He also deposed that if adequate treatment was not given in cases of burn injuries, then, the patient would succumb due to septicemia.
11.3 The P.W.3 Devshibhai Ambaliya was examined by the prosecution in his capacity as the Executive Magistrate who recorded the dying declaration of the deceased. The PW.3 Shri Ambaliya in his evidence has deposed that on 21/7/2006 he was on duty as Mamlatdar-cum-Execuive Magistrate in the office of the Mamlatdar, Junagadh. On that day he received a written yadi from Junagadh 'B' Dvn. Dispensary Police Chowki for the purpose of recording of a dying declaration of a patient, named, Rasilaben who was admitted in the hospital for treatment. On the strength of the Yadi, the PW.3 visited the Junagadh Government Hospital and first contacted Dr. D.P.Thanki who introduced the victim Rasilaben to him. He has deposed that when he and Dr.Thanki visited the Ward, at that point of time the relatives of the victim were present and they were asked to go out of the room. Thereafter only two persons i.e. the PW.3 Shri Ambaliya and Dr.Thanki were present in the room. He has deposed that before commencing with the recording of the dying declaration he inquired with Dr.Thanki about the mental condition of the victim and after being satisfied as regards the mental condition of the patient, the PW.3 commenced the recording of the dying declaration. Shri Ambaliya has deposed that he had also obtained a certificate of fitness of the victim from Dr.Thanki and only thereafter he had started recording the dying declaration of the victim in a questionnaire form. After the dying declaration was completed Page 17 of 57 R/CR.A/2113/2008 CAV JUDGMENT the same was read over before the victim and the thumb impression of her left hand was also obtained. Shri Ambaliya has deposed that all through-out the recording of the dying declaration the victim was conscious and was able to give answers quite efficiently. At the end of the dying declaration the certificate of Dr. Thanki was obtained and Dr.Thanki had also put an endorsement on the same. Shri Ambaliya produced the original dying declaration, Exh.17. Shri Ambaliya has further deposed that the victim, namely, Rasilaben stated before him that she was married past 10 years and during the wedlock two sons and two daughters were born. He deposed that it was stated by the victim before him that on 21/7/2006 at around 11 O'clock in the forenoon while she was sleeping, her husband poured kerosene on her body and by striking a match-stick set her on fire. At that point of time her two children had gone to school and two others were playing outside the house. Except herself and her husband no one else was present in the house. According to Shri Ambaliya, the victim further stated that after the incident her daughter Daksha returned home from school and she went to call the father of the victim, namely, Nagabhai. Thereafter the neighbours took the victim to the hospital. According to Shri Ambaliya the victim stated that the motive behind the incident was that the relations with her husband had strained and a quarrel had also ensued. In his cross-examination Shri Ambaliya has deposed that it was true that in the D.O. letter which was received by him on 21/7/2006 it was stated in the same that the victim had regained consciousness at 6.00 in the evening. He has also deposed that it was true that he had received the D.O. letter at around 9.00 in the night. He clarified that at the time when he received the D.O. letter he Page 18 of 57 R/CR.A/2113/2008 CAV JUDGMENT was not having dinner, but was at his office. He also deposed that he had no record available with him to substantiate his say that he was at his office at 9.00 O'clock in the night. He also deposed that before he received the D.O. letter, the police had already informed him on the phone for recording of the dying declaration. He has also deposed that it was not true that he had obtained the opinion as regards the mental condition of the victim by visiting Dr.Thanki at his chamber. He has also deposed that he had not inquired as to whether before recording of the dying declaration whether the police had inquired about the incident with the victim. He denied the suggestion that Dr.Thanki had not accompanied him to introduce the victim. He denied the suggestion that first he visited the chamber of Dr.Thanki at the hospital and thereafter on the basis of the statement which was recorded by the police of the victim, the dying declaration was prepared by him on his own and obtained the certificate of Dr.Thanki beneath the same. He also denied the suggestion that the endorsement of the Doctor was obtained after the completion of the dying declaration. He deposed that it was true that the thumb impression of the right-hand of the victim had not been identified by any person. He has deposed that when he first visited the room in which the victim was admitted there were two relatives. He deposed that it was true that when he visited the victim, the treatment had commenced. He has also deposed that it was true that in the dying declaration-Exh.17 he had not made any reference about his own satisfaction as regards the mental condition of the victim. He denied the suggestion that when he reached the hospital for recording of the dying declaration, the victim was groaning loudly due to excruciating pain. He denied the suggestion that the victim Page 19 of 57 R/CR.A/2113/2008 CAV JUDGMENT Rasilaben was not in the condition to give any statement till she died. He also denied the suggestion that the victim had not given any such dying declaration before him. He also denied the suggestion that the victim was in a condition to put her signature on the dying declaration. He denied the suggestion that being a Government Servant and as a part of his duty, since the dying declaration had to be recorded, he recorded the same on his own and was falsely deposing.
11.4 The P.W.4 Dr.Dhirendra Thanki in his evidence Exh.4 has deposed that on 21/7/2006 he was on duty as a Medical Officer at the Junagadh Government Hospital and at that point of time, the Executive Magistrate of Junagadh Shri Ambaliya had come to see him. According to the PW.4 Shri Ambaliya had come to the hospital for the purpose of recording of the dying declaration of a patient, named, Rasilaben who was admitted with history of burns. He has deposed that the victim had been admitted in the Burns Ward for the necessary treatment. He has also deposed that had met the victim in the Burns Ward. After consulting the Sister on duty, he had introduced Shri Ambaliya to the victim and at that point of time few relatives of the victim were present. The relatives were asked to go out of the room. He has deposed that before the Executive Magistrate Shri Ambaliya started recording the dying declaration he confirmed about the mental condition of the victim and whether the victim was in a fit state of mind to give such declaration. He has deposed that the victim was fully conscious and was in a condition to give her statement. He had also issued a certificate to that effect and had handed over to the Mamlatdar. He has deposed that thereafter the Page 20 of 57 R/CR.A/2113/2008 CAV JUDGMENT Executive Magistrate started recording with the dying declaration and completed the same. All through-out the period of recording of the Dying declaration, the victim remained conscious and gave proper answers to all the questions which were put to her by the Executive Magistrate. After completion of the recording of the statement he had also issued a certificate to that effect. He identified his signatures on the dying declaration Exh.17. In his cross-examination he has deposed that it was true that before the arrival of the Executive Magistrate at the hospital he had not examined the victim. He also deposed that it was true that before the arrival of the Executive Magistrate, the victim was not known to him. He has deposed that the preliminary writing on the dying declaration was done by the Executive Magistrate in his presence near the bed of the victim. He has also deposed that it was true that he had not noted the percentage of burns over the body of the victim, but at the same time it was not true to suggest that he had not made any notings as regards the general condition of the victim. He has deposed that the condition of the victim was noted by him in the indoor case papers. He denied the suggestion that he had not examined the victim and, therefore, was not able to say anything as regards the conscious state of mind of the victim. He has further deposed in his cross-examination that it was true that in cases of burns, it was possible to determine on the basis of the injuries sustained on different parts of the body, whether such burns were suicidal, accidental or homicidal and such guidelines have been provided in the medical jurisprudence. He has further deposed that it was true that if no burn injuries were found on the face and head of the victim, then in such cases it could be said that the same might be homicidal burns.
Page 21 of 57 R/CR.A/2113/2008 CAV JUDGMENTHe further deposed that it was true that in the same manner, if no burn injuries were noticed on the soles of the feet and palms of the hand, then it would point towards the possibility of an attempt to commit suicide. He has also deposed that in the case at hand, the victim had sustained burn injuries on the lower part of the chest and there were no burn injuries on her face and head. He has also deposed that there were no burn injuries on the soles of the feet of the victim, including the palms of the hand. He has also deposed that since there were no burn injuries on the palms of the victim, such was the reason why the thumb impression was obtained. He denied the suggestion that the victim was not in a fit state of mind to give the dying declaration and he had issued the certificate regarding the same on the say of the police.
11.5 The P.W.5 Ashokkumar Samani in his evidence Exh.19 has deposed that on 26/7/2006 he was on duty as a Medical Officer at the Junagadh Hospital and at that point of time a deadbody of one person, named, Rasilaben Bhikhabhai was brought with a Yadi issued by the Junagadh Government Police Chowky for the purpose of postmortem examination. He has deposed that the postmortem was performed by him on 26/7/2006 at around 8.15 in the night hours along with Dr.B.M.Dabhi. He has also deposed that during the course of postmortem he noticed the following injuries.
i) There were 1st and 2nd degree burns all over the body.
ii) Almost 90 % of the body was burnt.
iii) The lower part of the chest as well as stomach was burnt Page 22 of 57 R/CR.A/2113/2008 CAV JUDGMENT whereas the part of the chest was partially burnt, her back part of the body was completely burnt. Both her hands were completely burnt. Both her legs were completely burnt, but the soles were not burnt, her private part was also burnt.
He has deposed that the cause of death was due to extensive burn injuries all over the body. He has also deposed that if kerosene was sprinkled on the body of any person with the intent to kill such a person and thereafter if such person is set on fire by a striking match-stick, then the injuries which had been sustained by the deceased could be observed. He has deposed that having regard to the nature of injuries which were sustained by the deceased, the possibility of homicidal death could not be ruled-out. He has also deposed that the injuries sustained by the deceased were sufficient in the ordinary course of nature to cause death.
In his cross-examination Dr.Samani has deposed that the death could be of four types, (i) natural, (ii) Homicidal, (iii) suicidal and (iv) accidental. He has deposed that the nature of death could be determined on the basis of the postmortem examination. He has further deposed that the burn injuries are possible in three manners. Such injuries could be accidental, could be due to an attempt to commit suicide, as well as could be homicidal too. He has deposed that it was possible to determine whether the burn injuries were caused on account of attempt to commit suicide or the same were homicidal or accidental on the strength of the postmortem examination. He also deposed that to determine the nature of death it was Page 23 of 57 R/CR.A/2113/2008 CAV JUDGMENT necessary to examine the various parts of the body affected. He denied the suggestion that in cases of suicide, the part of the head, face, chest, palms and soles in any event would remain unaffected. However, he clarified that in cases of suicide the palms of the hands and soles of the legs remain unaffected. He denied the suggestion that in the case at hand, there were no burn injuries on the palms of both the hands. He deposed that it was true that the soles of both the feet were completely unaffected. He deposed that the upper part of the chest, the face and the head were also unaffected. He denied the suggestion that in the postmortem note it had not been stated that both the palms of the hands were not burnt. He clarified by deposing that so far as the injury on the palms were concerned, the hands were completely burnt which would include the palms. He agreed with the suggestion put to him in his cross-examination that if any person was sleeping and kerosene was poured or sprinkled on such person and an attempt is made to set such a person on fire, then there was possibility of the face and the head getting burnt.
11.6 Balwantbhai Prabhatbhai Sonara was examined by the prosecution as P.W 6. The P.W 6 in his evidence, Exh.24 has deposed that on 21st July, 2006, he was on duty as a Police Sub Inspector at the Junagadh "B" Division Police Station. On that day, he received a D.O letter No. 3088/06 from the ASI of the Hospital Police chowki, Junagadh and on the strength of the same, he visited Junagadh Government Hospital. He has deposed that the victim Rasilaben was admitted in the burns ward of the hospital and was introduced to him by her mother. He has also deposed that before questioning Rasilaben regarding the incident, he found that the Page 24 of 57 R/CR.A/2113/2008 CAV JUDGMENT victim was conscious. The victim was also able to speak and was able to understand. Thereafter, the P.W 6 questioned her about the incident and in reply, it was conveyed by the victim that due to frequent quarrels in the house, her husband poured kerosene and set her on fire. He has deposed that he recorded the complaint of the victim and forwarded the same to the Police station for registration of the offence. In his cross- examination, he has deposed that there were no bandages on both the palms of the hand of the victim. He has also deposed that there were no bandages even on the outer part of both palms of the hand, but some medicine was applied on the same. He has also deposed that at the time of recording of the statement of the victim, he had not obtained the opinion of any doctor as regards her mental state of mind. He denied the suggestion that the complaint was reduced into writing on the say of the mother of the victim. He also denied the suggestion that the victim had not stated anything about the household quarrels and that her husband had poured kerosene and set her ablaze. Nothing substantial could be elicited through the cross-examination of the P.W 6 so as to render his evidence as regards recording of the complaint of the deceased at the hospital doubtful in any manner.
11.7 Rameshbhai Bhikabhai has been examined by the prosecution as P.W 7 and this witness in his evidence Exh.28 has deposed that he was called by the police to act as a panch witness for the purpose of drawing of the scene of offence panchnama. He has deposed that at the time of drawing of the panchnama, one plastic container filled with approximately 100ml of kerosene was lying near a fiber stove. Some burnt pieces of cloth were also found in the courtyard of the house.
Page 25 of 57 R/CR.A/2113/2008 CAV JUDGMENTEight burnt matchsticks were found lying at the place. Three beds were there in the house. One bed was placed towards east. Two burnt pieces of cloth were found near the bed in the northern direction. On the southern side where burnt pieces of cloth were found, there was a bed and adjoining the bed, few burnt pieces of cloth were found scattered. He has deposed that towards the east, a bed was placed adjacent to the wall and on the same, there was a matchbox containing around 15 matchsticks and the same was collected. He has deposed that on the bed, which was placed towards the east, there was a quilt and the quilt was also collected by the police under a panchnama. At the time of drawing of the panchnama, the officers of the Forensic Science Laboratory were also present. The articles which were collected were sealed. In the cross- examination of this witness, it is stated that it was true that the police had obtained his signature on a prepared panchnama and that he had not visited the place of occurrence.
It appears that all other panch witnesses had failed to support the case of the prosecution and were declared as hostile witnesses.
11.8 The prosecution examined Rajalben Jagmalbhai as P.W 11. Rajalben Jagmalbhai in her evidence Exh.35 has deposed that she had two sisters. The name of her elder sister was Bhavna and the younger sister's name was Radha. She has deposed that her father was a labourer. She identified the accused who was present in the Court as the husband of the deceased. She has deposed that at the time of the incident, her parents had gone to Veraval and she along with her two Page 26 of 57 R/CR.A/2113/2008 CAV JUDGMENT sisters was at home. She has deposed that the accused had asked her and his daughter named Daksha to go to village Gadu and inform the father of the deceased about the incident. She has deposed that as the deceased was to be taken to the hospital, they were sent to village Gadu to call for the father of the deceased. The accused had paid her Rs. 10/- towards conveyance expense. She has further deposed that the reason for going to the village Gadu to call the father of the deceased was that on the date of the incident, the deceased was at her home. A kerosene container was lying in the courtyard and picking up the same the deceased poured it on the body and set herself on fire by striking a matchstick. She has deposed that at that point of time, her husband, the accused was present, but the accused along with her son went away towards temple of one Pali Mataji. She has deposed that the deceased was running on all the four sides as she was on fire and thereafter, on her own jumped into a water tank. Thereafter, her parents returned from Veraval and in the meantime, father of the deceased also arrived. She has deposed that the deceased was thereafter taken to the hospital by her parents and the father of the deceased. She has also deposed that on the date of the incident, the accused and his wife were fighting with each other and the deceased at that point of time was sleeping on her bed. It appears that the P.W 11 resiled from her police statement and was accordingly, declared as a hostile witness. In her cross-examination, she deposed that when the deceased poured kerosene on her body, at that point of time she was stating that "Bhikhala..., I want to send you behind bars of the jail." She has deposed that the deceased was engaged in the business of liquor. She has also deposed that many people used to come at her house. She Page 27 of 57 R/CR.A/2113/2008 CAV JUDGMENT has also deposed that once the deceased had left her house after quarreling with her husband and for a month stayed at the house of one Darbar at village Pikhor. She has also deposed that the Darbar of Pikhor village used to frequently visit the house of the deceased. She has also deposed that many times the accused used to fight with the Darbar. She has also deposed that the deceased had filed three to four cases against her husband, the accused.
11.9 The prosecution examined Bhavnaben Jagmalbhai as P.W 12. The P.W 12 in her deposition at Exh. 36 stated that she was the elder sister of the P.W 11, whose evidence we have just discussed above. The P.W 12 deposed that on the day of the incident at around 11 'O Clock, the accused and his wife, the deceased had a quarrel with each other. In fact, they were fighting since morning and were hurling abuses to each other. She has deposed that after quarreling, the deceased went of to sleep on a bed and at that point of time, the deceased was wearing a petticoat and blouse. The accused came with a vessel of kerosene and poured the same on the deceased while she was sleeping and set her on fire by striking a matchstick. Thereafter, the deceased started moving all around her house as she was on fire and was shouting. Thereafter, she fell in a water tank and came out on her own. The deceased was groaning and shouting in pain. She has deposed that the accused, along with her daughters, went away towards a temple. She has also deposed that the accused had given Rs. 10/- to Daksha for going to village Gadu to inform the father of the deceased about the incident. In her cross-examination, she has stated that it was not true to suggest that the fact that she and her sister had witnessed the Page 28 of 57 R/CR.A/2113/2008 CAV JUDGMENT incident had not been disclosed before the police. She has also deposed that the deceased used to tell her that she wanted to send the accused behind bars. She denied the suggestion that while saying so, the accused picked up the container of kerosene and poured on her body and set herself on fire. She has also denied the suggestion that when the deceased jumped into the water, at that point of time the accused told her to come out of the water otherwise blisters would be formed all over her body. She has also deposed that it was true that one Darbar of village Pikhor used to frequently visit the house of the deceased. This witness also denied the suggestion that after jumping into the water tank, the accused had tried to take her out, but she was refusing to come out of the water.
11.10 The prosecution also examined Virambhai Parmar as P.W 15. The P.W 15 is the Investigating Officer and in his evidence Exh.47, he has stated about the various stages of investigation, more particularly the drawing of the panchnamas etc. In his cross-examination, he has deposed that in the panchnama Exh.29 of the scene of offence, it had not been stated anywhere that at the time of drawing of the panchnama, there was smell of kerosene in the house. In the same manner, nothing had been stated in the panchnama that the quilt and the clothes were also stained with kerosene and were smelling of the same.
12. Having considered the oral evidence on record, we deem it necessary to now consider the dying declaration Exh.17 recorded by the Executive Magistrate, Junagadh at the Government Hospital, Junagadh on 21st July, 2006 at around Page 29 of 57 R/CR.A/2113/2008 CAV JUDGMENT 9.10 hours in the evening.
13. In our opinion, the following five questions which were put to the deceased and the answers to the same are important. We reproduce the exact question and the answer as under:-
How you have sustained the burns? Today on 21st July, 2006, at around 11'O Clock I was sleeping in my house and at that point of time, my husband poured kerosene on me and while attempting to set me on fire, I have burnt myself.
When you sustained burns who else When my husband poured kerosene, was there? at that point of time except my husband, no one else was there. My two children had gone to school and the other two were playing outside.
After the incident, who saved you? After the incident, I on my own made attempts to save myself and my daughter, after her return from the school was asked to go and call my father. My daughter went to village Gadu and called my father Nagabhai.
My father Nagabhai and my neighbour Shantaben took me to Chorwad Dispensary first in point of time for treatment.
How you have come to Junagadh? I have come to Junagadh Hospital from Chorwad in an ambulance for treatment with my father.
Do you have any difficulties or Yes, I have problems with my harassment? husband, there was a quarrel.
14. The aforesaid dying declaration was recorded by the Executive Magistrate, which could be termed as a second dying declaration, as the first information report, which was lodged by the deceased herself would also have to be treated as a dying declaration. Therefore, it is necessary to even look Page 30 of 57 R/CR.A/2113/2008 CAV JUDGMENT into the first dying declaration so as to ascertain whether there is any inconsistency between the two dying declarations.
15. We have noticed that in the first dying declaration Exh.26, the deceased had stated before the police that after she was set ablaze by her husband, she jumped into the water tank, which was in the locality and on shouts being raised, one of her daughters and one of her sons who were playing outside came running at the spot and the other people residing in the neighbourhood also gathered. The deceased has further stated that at that point of time, her husband, the accused had told her to get out of the water otherwise blisters would be formed on her body. Thereafter, her husband took her out of the water tank and made her to lie in the house. One Shantaben and her husband Jagabhai living next to the house of the deceased took her to the hospital.
16. Thus, from the above it appears that so far as the allegations levelled by the deceased that her husband had poured kerosene and set her on fire by striking a matchstick appears to be consistent in both the dying declarations, but in the second dying declaration recorded by the Executive Magistrate, there is no reference of the fact that while she had jumped into the water tank, her husband had told her to come out of the water otherwise blisters would be formed and further that her husband had taken her out of the water and made her to lie in the house.
17. It is a settled law that where there are conflicting dying declarations, it would be unsafe to place reliance upon the same. In such cases, the Court should be satisfied that the Page 31 of 57 R/CR.A/2113/2008 CAV JUDGMENT deceased was in a fit state of mind and capable of making the dying declaration. While assessing the reliability of the dying declaration, the Court should consider whether any of the close relatives of the victim had any opportunity to influence the mind of the deceased. The dying declaration can be disregarded if the contents are contrary to the facts available on record. In case there is a higher degree of burns, the Court has to consider the feasibility of affixation of the thumb impression by the deceased.
18. As held by the Supreme Court in Nallam Veera Stayanandam & Ors. Vs. The Public Prosecutor, High Court of A.P., reported in AIR 2004 SC 1708, that in cases where there are more than one dying declaration, it is the duty of the Court to consider each of them in its correct perspective and satisfy itself which one of them reflects the true state of affairs. A duty is cast on the Court to find out the truth from falsehood.
The Court has to find out which of the dying declaration is true. In Jai Karan Vs. State of (N.C.T. Delhi), reported in 1999 Criminal Law Journal, 4529, the Supreme Court has observed as under:-
10. A dying declaration is admissible in evidence on the principle of necessity and can form the basis for conviction if it is found to be reliable. While it is in the nature' of an exception to the general rule forbidding hearsay evidence, it is admitted on the premise that ordinarily a dying person will not falsely implicate an innocent person in the commission of a serious crime. It is this premise which is considered strong enough to set off the need that the maker of the statement should state so on oath and be cross examined by the person who is sought to be implicated. In order that a dying declaration may form the sole basis for conviction without the need for independent corroboration it must Page 32 of 57 R/CR.A/2113/2008 CAV JUDGMENT 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 1s corroborated. A dying declaration is an independent piece of evidence like any other piece of evidence -
neither extra strong nor weak and can be acted upon without corroboration if it is found to be otherwise, true and reliable. (1991 (1) SCO 744 Padmaben Shamalbhai Patel Vs. State of Gujarat Para 8).
11. In AIR 1975 SC 1519 (Jayarj V. State of Tamil Nadu) this Court made the following observations :
When the deponent (while making his dying declaration) was in severe bodily pain (because of stabbing injuries in abdomen), and words were scarce, his natural impulse would be to tell the Magistrate, without wasting his breath on details, as to who had stabbed him. The very brevity of dying declaration, in the circumstances of the case, far from being a suspicious circumstance, was an index of its being true and free from the taint of tutoring, more so when the substratum of the dying declaration was fully consistent with the ocular account given by the eye- witnesses."
12. In case of Khushal Rao Vs. State of Bombay (AIR 1958 SC 22) this Court laid down the following propositions of law relating to the test of reliability of dying declaration:
:
(1) That it cannot be laid own as an absolute rule of law that a dying declaration cannot form the sole basis of conviction unless it is corroborated;
(2) That each case must be determined on its own facts keeping in view the circumstances in which the dying declaration was made;Page 33 of 57 R/CR.A/2113/2008 CAV JUDGMENT
(3) That it cannot be laid down as a general proposition that a .dying declaration is a weaker kind of evidence than other piece of evidence.
(4) That a dying .declaration stands on the same footing as another .piece of evidence and has to be judged in the light of surrounding circumstances and with reference to the principles governing the weighing of evidence;
(5) That a dying declaration which has been recorded by a competent Magistrate in the proper manner, that 1s to say, in the form of Questions and answers, and, as far as practicable, in the words of the maker of the declaration which depends -upon oral testimony. which may suffer from all the infirmities of human memory and human character; and (6) That in order to test the reliability of a dying declaration; the Court has to keep in view, the circumstances like the opportunity of the dying man for observation, for example, whether there was sufficient light if the crime was committed at night; whether the capacity of the man to remember the facts stated, had not been impaired at the time he was making the statement, by circumstances beyond his control; that the statement has been consistent throughout if he had several opportunities of making a dying declaration apart from the official record of it; and- that the statement had been made at the earliest opportunity and was not the result of tutoring by interested parties.
13. In the case of Paniben V. State of Gujarat 1992 (2) SCO 474 this Court summed up the principles of dying declaration with the following observation (para 18):
"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, 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 Page 34 of 57 R/CR.A/2113/2008 CAV JUDGMENT observe and identify the assailants. Once the Court 1s 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. This Court has laid down .n several judgments the principles governing dying. declaration, which could be summed up as under:
"(ii) There is neither rule of law nor of prudence that dying declaration cannot be acted upon without corroboration (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. (State of U.P. v. Ram Sagar Yadav (1985 (1) SCC 552 and Ramawati Devi V. State of Bihar (1983) 1 SCC 211);.
(ill) This Court has to scrutinise the dying declaration carefully and must ensure that the. declaration is not the result of tutoring, prompting or imagination. The deceased had opportunity to observe and identify the assailants and was in a fit state of make the declaration (K. Ramachandra Reddy Vs. Public Prosecutors 1976 (3} SCC 618); .-
(iv) Where dying declaration is suspicious it should not be acted acted without corroborative evidence (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. (Kake Singh V. State of M.P. 1981 (Supp) SCC 25);
(v1) A dying dec}aration which suffers from infirmity cannot form the basis of conviction (Ram Manorath Vs. 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.Page 35 of 57 R/CR.A/2113/2008 CAV JUDGMENT
(State . of Maharashtra Vs. KrisnnaiTiurti Laxmipati Naidu, 1980 (Supp).SCC 455)
(viii) Equally, merely because it is a brief statement, it is not to be discarded. On the contrary, the shortness of the statement itself guarantees truth, Surajdeo Oza vs. State of Bihar (1980 Supp. SCC 769);
(ix) Normally the court in order to satisfy whether deceased was in a fit mental condition to make the dying declaration look up to the medical opinion. But where the eye witness has said that the deceased was in a fit and conscious state to make this dying declaration, the medical opinion cannot prevail. (Nanahau Ram Vs. 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. (State of U.P. V. Madan Mohan (1989) 3 SCC 390)."
19. Testing the case in hand on the touchstone of the principles laid down in the decisions noted above, the position that emerges is that the prosecution evidence not only rests solely on the dying declarations, but there is a witness who has deposed that the accused had poured kerosene on the body of the deceased while she was sleeping and set her on fire by striking a matchstick.
20. In the present case, the marital relationship of the accused with the deceased had strained to such an extent that once the deceased had left her house and stayed for a period of about one month at the house of one Darbar residing at village Pikhor. It also appears that on the date of the incident, the witnesses residing in the neighbourhood had seen them quarreling with each other since morning. The P.W 12, Bhavnaben, residing in the neighbourhood has deposed in her Page 36 of 57 R/CR.A/2113/2008 CAV JUDGMENT evidence Exh.36 that while the deceased was sleeping on a cot, the accused poured kerosene and set her on fire by striking a matchstick. Thereafter, the deceased started running in the house as she was on fire. The deceased jumped into a water tank and came out of the tank on her own. At this stage, we may observe that the P.W 12 Bhavnaben in her evidence has not said anything about the presence of the accused, but all that has been deposed by her is that after the incident, the accused along with her daughters went away towards the temple of Goddess Palima situated in the village. The P.W 12 has also deposed that the accused before leaving the house with her daughter, had given Rs. 10/- to her sister Rajvi so that she could go to village Gadu and inform the father of the deceased about the incident. She has also deposed that her sister Rajvi and Daksha (daughter of the deceased) had gone to the village Gadu and while on their way, they met the father of the deceased and was informed about the incident. So far as the oral evidence of the P.W 11 Rajvi is concerned, she has not stated anything about the accused pouring kerosene on the body of the deceased while she was sleeping in her house and thereafter setting her on fire by striking matchstick. The P.W 11, Rajalben has altogether a different story to narrate. She has deposed that a container of kerosene was lying in the courtyard and from the same, the deceased poured some kerosene on her body and set herself on fire by striking a matchstick. Thereafter, the accused along with his son went away towards the temple of Palima situated in the village. The P.W 11, Rajviben has been declared as a hostile witness as she resiled from her statement made before the Police.
Page 37 of 57 R/CR.A/2113/2008 CAV JUDGMENT21. We have also noticed that there are few contradictions in the evidence of both the sisters i.e the P.W 11 and the P.W 12. However, it is not in dispute that the deceased had sustained severe burn injuries. It is also not in dispute that the deceased had sustained burn injuries at her house. It is also not in dispute that the deceased was taken to the hospital by her neighbours accompanied by her father and at the Junagadh General Hospital, her first statement was recorded by the Police Sub Inspector of "B" Division Junagadh Police Station in the form of an FIR. On being admitted in the hospital, the deceased in the history of incident before the doctor stated that it was her husband who poured kerosene on her body and set her ablaze by striking a matchstick. The first information report would be the first dying declaration of the deceased. It is also not in dispute that at around 9 ' O Clock in the night, her second dying declaration Exh. 17 was recorded by the Executive Magistrate of Junagadh. There is cogent evidence on record to indicate that the deceased was conscious and was in a fit state of mind to make such declarations. The evidence of the doctors who were on duty make this aspect very clear and there is nothing on the basis of which we could reach to the conclusion that the deceased was not in a fit state of mind to make the dying declarations. Thus, the fact that the dying declarations were made by the deceased, first before the Police Sub Inspector, Exh. 26 and second before the Executive Magistrate, Exh.17, admits of no doubt. The real task to our mind that confronts us is how far they are true.
22. Ms. Pandey, the learned Advocate appearing for the accused-appellant submitted that although there are two dying declarations implicating the accused in the crime, yet they are Page 38 of 57 R/CR.A/2113/2008 CAV JUDGMENT inconsistent with each other on certain aspects and even if both the dying declarations are held to be consistent with each other, still there are circumstances on record to indicate that the deceased had poured kerosene on her own and had attempted to commit suicide by setting herself on fire. According to Ms. Pandey, the following are the circumstances which indicate that the deceased had attempted to commit suicide by pouring kerosene on her body and thereafter, setting herself on fire by striking a matchstick. They are as under:-
(i) There were no burn injuries on both the palms of the hand of the deceased including the soles of both the feet.
(ii) The absence of burn injuries on the palms of the hand and the soles of the feet is consistent with the theory of suicide.
(iii) The expert witnesses who have been examined by the prosecution have deposed that the absence of burn injuries on the palms of the hand and soles of the feet would indicate that the deceased might have attempted to commit suicide. Even according to the expert witnesses, it was not possible to reach to a definite conclusion having regard to the parts of the body affected, that the case was one of homicidal death alone.
(iv) The conduct of the accused first in telling the deceased to get out of the water otherwise blisters would be Page 39 of 57 R/CR.A/2113/2008 CAV JUDGMENT formed all over the body, and secondly the act of the accused in taking out the deceased from the water tank and making her to lie in the house points towards the innocence of the accused. If the accused had poured kerosene on the body of the deceased and set her on fire by striking a matchstick with the intention to kill her, he would not thereafter remain present at the house for a second and help the deceased in getting out of the water tank and making her to lie down in the house.
(v) The marital relationship between the two had strained severely and the deceased was quite desperate to teach the accused a lesson by seeing that the accused lands up in jail and such desperateness had led the deceased to take the extreme step of pouring kerosene on her own and thereafter setting herself on fire by striking a matchstick.
(vi) At the time of recording of the dying declarations, the wife's motives in charging the husband falsely may be equally strong. She too must have been fed up with the misery of life and when questioned by the Police and the Executive Magistrate, she might have accused her husband of setting fire to her clothes, not merely with a view to save herself from the prosecution for attempting to commit suicide, but either on account of her feeling that her husband was responsible for all her troubles and her desperate action was also due to the same or out of malice.
(vii) The mere abscondence of the accused after the incident Page 40 of 57 R/CR.A/2113/2008 CAV JUDGMENT does not lead to a firm conclusion of his guilty mind. An innocent man may also abscond in order to evade arrest, as in the light of the situation on the day of the incident, such an action may be a part of the natural conduct of the accused.
23. We are of the view that none of the circumstances referred to above on which strong reliance has been placed by the learned Advocate appearing for the accused-appellant points towards the innocence of the accused. We are of the view having regard to the evidence on record that the version of the deceased in her dying declarations that while she was sleeping in her house at around 11'O Clock in the forenoon, her husband poured kerosene on her body and set her on fire by striking a matchstick is more probable than the theory of suicide. There is no universal rule of application or any such principle of the medical jurisprudence that if burn injuries are not found on the palms of the hand and the soles of the feet, then it could be said with certainty that the case was that of suicide and not one of homicide. It would all depend on the manner in which the body catches fire after the same is doused with any inflammable solution like kerosene. Even the doctors who have been examined by the prosecution as expert witnesses have not been able to say with certainty whether the case was one of suicide or homicide. A lot of emphasis has been put by the learned advocate appearing for the accused- appellant on the evidence of the P.W 4 Dr. Thanki and more particularly that part of the evidence of the cross-examination contained in paragraph 3.
24. At this stage, we deem it necessary to look into the Page 41 of 57 R/CR.A/2113/2008 CAV JUDGMENT position of law so far as appreciation of the evidence of expert witness is concerned, that is to say, to what extent the Court should accept the opinion expressed by the expert.
25. In the case of Ramesh Chandra Agrawal Vs. Regency Hospital Ltd., reported in AIR 2010 SC 806, the Supreme Court has observed as under:-
11) EXPERT OPINION:
The law of evidence is designed to ensure that the court considers only that evidence which will enable it to reach a reliable conclusion. The first and foremost requirement for an expert evidence to be admissible is that it is necessary to hear the expert evidence. The test is that the matter is outside the knowledge and experience of the lay person. Thus, there is a need to hear an expert opinion where there is a medical issue to be settled. The scientific question involved is assumed to be not within the court's knowledge. Thus cases where the science involved, is highly specialized and perhaps even esoteric, the central role of expert cannot be disputed. The other requirements for the admissibility of expert evidence are:
i) that the expert must be within a recognized field of expertise
ii) that the evidence must be based on reliable principles, and
iii) that the expert must be qualified in that discipline.
[See Errors, Medicine and the Law, Alan Merry and Alexander McCall Smith, 2001 ed., Cambridge University Press, p.178]
12. Section 45 of the Indian Evidence Act speaks of expert evidence. It reads as under:
"45. Opinions of experts - When the Court has to form an opinion upon a point of foreign law, or of science, or art, or as to identity of hand writing or finger-impressions, the opinions upon that point of persons specially skilled in such foreign law, science or art, or in questions as to identity of handwriting or finger impressions, are relevant facts. Such person called experts. Illustrations
(a) The question is, whether the death of A was caused by poison. The opinions of experts as to the symptoms produced by the poison by which A is supposed to have died, are relevant.
(b) The question is whether A, at the time of doing a certain act, was by reason of unsoundness of mind, in capable of knowing the nature of the act, or that he was doing what was either wrong or contrary to law.
The opinions of experts upon the question whether the symptoms exhibited by A commonly show unsoundness of mind, and whether such Page 42 of 57 R/CR.A/2113/2008 CAV JUDGMENT unsoundness of mind usually renders persons incapable of knowing the nature of the acts which they do, or knowing that what they do is either wrong or contrary to law, are relevant.
(c) The question is, whether a certain document was written by "A" . Another document is produced which is proved or admitted to have been written by A. The opinion of experts on the question whether the two documents were written by the same person or by different persons are relevant."
13) The importance of the provision has been explained in the case of State of H.P. v. Jai Lal and Ors.,[(1999) 7 SCC 280]. It is held, that, Section 45 of the Evidence Act which makes opinion of experts admissible lays down, that, when the court has to form an opinion upon a point of foreign law, or of science, or art, or as to identity of handwriting or finger impressions, the opinions upon that point of persons specially skilled in such foreign law, science or art, or in questions as to identity of handwriting, or finger impressions are relevant facts. Therefore, in order to bring the evidence of a witness as that of an expert it has to be shown that he has made a special study of the subject or acquired a special experience therein or in other words that he is skilled and has adequate knowledge of the subject.
14) It is not the province of the expert to act as Judge or Jury. It is stated in Titli v. Jones (AIR 1934 All 237) that the real function of the expert is to put before the court all the materials, together with reasons which induce him to come to the conclusion, so that the court, although not an expert, may form its own judgment by its own observation of those materials.
15) An expert is not a witness of fact and his evidence is really of an advisory character. The duty of an expert witness is to furnish the Judge with the necessary scientific criteria for testing the accuracy of the conclusions so as to enable the Judge to form his independent judgment by the application of these criteria to the facts proved by the evidence of the case. The scientific opinion evidence, if intelligible, convincing and tested becomes a factor and often an important factor for consideration along with other evidence of the case. The credibility of such a witness depends on the reasons stated in support of his conclusions and the data and material furnished which form the basis of his conclusions. (See Malay Kumar Ganguly vs. Dr. Sukumar Mukherjee and Others) [Criminal Appeal Nos. 1191-1194 of 2005 alongwith Civil Appeal No. 1727 of 2007, decided on 7.8.2009].
16) In the case of State of Maharashtra v. Damu s/o Gopinath Shinde and others., [AIR 2000 SC 1691 at page 1700], it has been laid down that without examining the expert as a witness in Court, no reliance can be placed on an opinion alone. In this regard, it has been observed in The State (Delhi Administration) v. Pali Ram, [AIR 1979 SC 14] that "no expert would claim today that he could be absolutely sure that his opinion was correct, expert depends to a great extent upon the materials put before him and the nature of question put to him."
17) In the Article "Relevancy of Expert's Opinion" it has been opined that the value of expert opinion rest on the facts on which it is based and his competency for forming a reliable opinion. The evidentiary value of the opinion of expert depends on the facts upon which it is based and also the validity of the process by which the conclusion is reached. Thus the idea that is proposed in its crux means that the importance of an opinion is decided on the basis of the credibility of the expert and the relevant facts Page 43 of 57 R/CR.A/2113/2008 CAV JUDGMENT supporting the opinion so that its accuracy can be cross checked. Therefore, the emphasis has been on the data on basis of which opinion is formed. The same is clear from following inference: "Mere assertion without mentioning the data or basis is not evidence, even if it comes form expert. Where the experts give no real data in support of their opinion, the evidence even though admissible, may be excluded from consideration as affording no assistance in arriving at the correct value."
26. Thus, from the aforenoted decision of the Supreme Court, it could be said that a doctor who deposes before the Court as an expert witness, is not a witness of fact, and his evidence would be more in the nature of an advice. The role of a doctor as an expert witness is to furnish the Court with the necessary opinion for testing the accuracy of the conclusions so as to enable the Court to form its independent judgment by the application of those of such criteria to the facts proved by the evidence of the case. The expert opinion must always be received with great caution. It is unsafe to base a conviction solely on expert opinion, without substantial corroboration. The expert evidence cannot be conclusive because, it is, after all, opinion evidence. The expert evidence being opinion evidence, before acting on such evidence, it is desirable to consider whether it is corroborated either by direct evidence or by circumstantial evidence. It is necessary that reasons for the opinion must be carefully proved into and examined.
27. We have also considered the evidence of the P.W 5 Dr. Samani, who had performed the postmortem of the deceased. The P.W 5 in his evidence has deposed that in the case of the deceased, both the hands were completely burnt, however, the soles of the feet were not affected. Thus, it is not clear as there appears to be an apparent inconsistency so far as the fact whether the palms of the deceased were burnt or not. However, as observed earlier that assuming for the moment Page 44 of 57 R/CR.A/2113/2008 CAV JUDGMENT that the palms of the hand were not affected by itself is not sufficient to disbelieve the entire case of the prosecution, and more particularly the two dying declarations of the deceased implicating the accused in the crime.
28. The case of the prosecution is that kerosene was poured by the accused while the deceased was sleeping, whereas according to the defence, the deceased committed suicide by pouring kerosene on her body and thereafter, setting herself on fire. Let us test the probability of the theory of suicide as put forward by the defence. If the deceased had poured kerosene on her own while remaining in any part of the house, then at least some kerosene would have been found on the floor. From the scene of offence panchnama, it appears that no kerosene was found on the floor anywhere in the house. While on the other hand, let us test the case of the prosecution that the deceased was sleeping and at that point of time, kerosene was poured. This is precisely the reason why the quilt which might be on the cot was detected to be stained with kerosene and the Forensic Science Laboratory report Exh.66 indicates that the residual petroleum hydro carbons were detected on the muddamal article (E), quilt. The question is how the quilt came to be stained with kerosene. The quilt is not something which is ordinarily worn so that if a person pours kerosene on her own the same would get stained with kerosene. If the deceased is said to have committed suicide by pouring kerosene on her own, then at least she would not have committed suicide while sleeping on the cot. The fact that the quilt which was collected by the officers of the Forensic Science Laboratory from the cot contained residual petroleum hydro-carbon (kerosene) reinforces the case of the Page 45 of 57 R/CR.A/2113/2008 CAV JUDGMENT prosecution that while the deceased was sleeping, kerosene was poured on her body, as a result the quilt also might have got stained with kerosene.
29. The above takes us to the circumstance of recovery of a match box from the cot. It appears that a matchbox containing around 15 matchsticks was lying on the cot and the same was also collected at the time of drawing of the panchnama of the scene of offence. There were scattered pieces of burnt cloth near the bed, which indicates that the deceased must have been sleeping on the bed and at that point of time while on fire, the pieces of cloth might have fallen near the bed.
30. Let us assume for the time being so as to give the benefit of doubt to the accused, that the deceased on her own had poured kerosene and set herself ablaze by striking a matchstick. We are also assuming for the moment that the palms of both the hand were not affected by the burns although the doctor, who performed the postmortem has clarified that both the hands were completely burnt, which would include the palms. However, as there is some discrepancy in this regard, we are examining the contention of the learned advocate appearing for the appellant as regards the theory of suicide, assuming that the palms were not affected. At the same time, there is no dispute as regards the fact that the dorsum of the hands were burnt. This is clear from the medical evidence on record. The fact that the dorsum of the hands were burnt itself is an indication that kerosene was doused on the deceased by somebody else and not the deceased herself. If the deceased had poured Page 46 of 57 R/CR.A/2113/2008 CAV JUDGMENT kerosene on herself, the same could not fall on the dorsum of the hands, and if this was so, we would not have found burn injuries on the dorsum of the hand, and this is an additional piece of evidence where from it can be inferred that somebody else doused the deceased with kerosene and not the deceased herself doused with kerosene.
31. In this context, we may look into the serological test report, Exh.66. If it is the case of the defence that there were no burn injuries on the palms, then the defence should also accept the fact that the palms had not been doused with kerosene. In such circumstances, the defence has not been able to explain the presence of the residual petroleum hydrocarbons on parcel "C", which was a matchbox wrapped in a plastic bag. It was a matchbox of a brand name "Deepak". The matchbox contained few unused matchsticks. In the said parcel "C", there were few used matchsticks in a plastic bag, and according to the serological test report, the residual petroleum hydrocarbons were found on parcel "C" suggestive of the fact that they were all stained with kerosene. If the palms had no burn injuries which is suggestive of the fact that they were not doused with kerosene, then how come that the matchbox which was recovered at the time of drawing of the scene of offence panchnama was found stained with kerosene. Let us assume for the moment that the deceased herself had doused with kerosene and set herself on fire by striking a matchstick, then in such circumstances, on the matchbox kerosene could not have been found. On the contrary, the presence of residual petroleum hydrocarbons (kerosene) on Exh. mark "C" would suggest that the hands of the accused must have got drenched with kerosene at the time of pouring Page 47 of 57 R/CR.A/2113/2008 CAV JUDGMENT the same on the body of the deceased and thereafter, while striking the matchstick, the drenched hands must have come in contact with the matchbox.
32. We also have an answer to the vociferous submission canvassed on behalf of the accused-appellant as regards the soles of the feet not being burnt, thereby suggesting that it was a case of suicide.
Dr. R.K. Jhala and K. Kumar in their treatiese on Dr. R.M. Jhala and V.B. Raju's Medical jurisprudence, 6th edition at page 435 have made the following observations which are most pertinent in our case. The learned authors say:-
"while inferring from the situation of the burns, in view of the significance of situation of the burns in case of homicidal burns, areas of skin unaffected also offer valuable assistance. These often indicate possibility of obstruction (trying to prevent resistance or occluding or covering the face to prevent crying for help.*****. The areas exempted from burns are called exemption areas. Similar areas like soles being entirely free from burns, with extensive burns elsewhere, raises a strong presumption of suicide. This is understandable as a person usually ignites herself or himself while in a standing posture. The soles in such cases, being in contact with the ground are exempted from the effects of flames and hence no burns are found. Such was the case in a case of suicide seen by the author. In this case, the palm and soles were exempt of burns."
33. It appears that the logic behind the opinion expressed by the learned authors seems to be that ordinarily a person would commit suicide while standing. If that person is standing, then naturally the soles of the feet would be in contact with the ground. In such circumstances, there are very little chances of Page 48 of 57 R/CR.A/2113/2008 CAV JUDGMENT fire reaching right up to the soles, due to the soles remaining in contact with the ground. In the present case, the accused is alleged to have poured kerosene on the deceased while the deceased was sleeping. If the deceased was in a sleeping posture, then it is but obvious that both her feet would be in a stretching position and the soles would not be in contact with the ground. However, from the evidence on record, it appears that the deceased no sooner realized that her body was on fire, immediately started running in the house. If by the time her soles would get affected she starts running in the house, then it is but obvious that her soles would remain in contact with the ground and thereafter, within no time she jumped into the water tank. In such circumstances, if the soles of the feet of the deceased were found to be not burnt, then that by itself would not be sufficient to completely rule out homicidal death so as to reach to a definite conclusion that it was a case of suicide alone.
34. There is one more circumstance going against the accused. The Exh. mark "G", which contained a white colour shirt and a trouser collected from the accused at the time of drawing of his arrest panchnama was detected with the presence of the residual petroleum hydrocarbons (kerosene). If the accused claims himself to be innocent, then how does he explain the detection of residual petroleum hydrocarbons (kerosene) on his shirt and trouser.
35. A great deal of effort was put in by the learned Advocate appearing for the accused-appellant to convince us that the conduct of the accused after the incident would point towards his innocence and not towards his guilt. According to the Page 49 of 57 R/CR.A/2113/2008 CAV JUDGMENT learned Advocate, if the accused had poured the kerosene and set the deceased on fire, then he would not have advised the deceased to get out of the water so as to prevent formation of blisters on the body, and further would not have even helped the deceased in getting out of the water tank and thereafter, help her lie in the house. For the time being, let us assume that the accused had acted in such a manner, but at the same time, we should also not overlook the fact that he left the house immediately and was arrested after two days. This is suggestive of the fact that the accused was not present even at the hospital. Besides the above, the accused could not have remained a passive spectator, more particularly when people from the neighbourhood gathered at the place of the incident.
36. In our opinion, if revenge was the only thing in the mind of the deceased, then she would not have even stated in her dying declaration that she was advised by her husband to get out of the water tank so as to prevent the formation of blisters and further that the accused had helped her in getting out of the tank and made her to lie in the house. Such conduct by itself would not point towards the innocence of the accused because human behaviour is quite unpredictable. How a person would react in a particular situation would vary from a person to person. In many cases, after inflicting injuries the accused would carry the victim to the hospital, but that by itself would not suggest that such injuries were not inflicted by him. Therefore, in our opinion, even if such conduct of the accused is believed to be true, there is no reason for us to disbelieve the entire two dying declarations of the deceased.
37. There is one more circumstance which deserves to be Page 50 of 57 R/CR.A/2113/2008 CAV JUDGMENT looked into. Although the relationship of the deceased with the accused had strained to a considerable extent, yet at the same time, it appears from the evidence that the deceased had already a paramour with whom she had stayed for one month in the past at village Pikhor. Such evidence has been led by the defence itself by putting questions to the P.W 11 Rajvi as well as the P.W 12, Bhavnaben. Therefore, the situation for the deceased was not so grim that there was no one to look after her and the only option left for her in the world was to put an end to her life. At the same time, it is too much to believe that with a view to teach a lesson to the accused and to see that he goes behind the bars, the deceased would incur the risk of taking the extreme step of attempting to commit suicide by setting herself on fire. If the intention of the deceased was to send her husband behind bars at any cost, there could be many ways by which the accused could have been sent to the prison, but it is very difficult to believe that the deceased committed suicide only with a view to send her husband in jail.
38. Ordinarily, a married woman with minor children would commit suicide, only if there is incessant harassment and torture at the end of her husband. Even in cases where there is incessant harassment or torture, the lady would normally explore other possibilities to get-rid-off the harassment, either by leaving the matrimonial home or by initiating appropriate legal proceedings against the husband. There could be cases where even though the lady would be keen to go back to her parents' house, but at times even the parents would not be in a position to keep her or maintain her and in such Page 51 of 57 R/CR.A/2113/2008 CAV JUDGMENT circumstances, with a view to see that the parents and other family members are not put to difficulty, as a last resort, in a state of despair, the lady would decide to put an end to her life by committing suicide. The mental state of mind would differ from person to person.
39. In the present case, we have noticed that there is no evidence that the husband was incessantly torturing the deceased or was treating her cruelly. The evidence is to the effect that the husband and wife were not getting along well and used to quarrel with each other quite frequently. There is no evidence to even suggest that in the past due to such harassment at the end of the accused, the deceased had attempted to commit suicide or had exhibited any sign or tendency to put an end to her life, so as to relieve herself of the harassment. On the contrary, we find from the evidence on record that the deceased was a bootlegger and she was brave enough at one point of time to walk out of the matrimonial home leaving behind her four minor children and stayed for a period of one month at the house of one Darbar, residing in other village. The circumstances in the present case do not suggest even remotely that the deceased was left with no other option but to commit suicide. Therefore, taking into consideration the circumstances emerging from the record of the case, we find it very difficult to accept the defence of the accused that the deceased committed suicide.
40. We have also gone through the further statement of the accused-appellant recorded by the trial Court under Section 313 of the Criminal Procedure Code. It appears that the accused has pleaded complete ignorance about the incident.
Page 52 of 57 R/CR.A/2113/2008 CAV JUDGMENTOn the contrary, his defence was that he learnt about the incident through Rajvi. Although many incriminating circumstances pointing towards the guilt of the accused had been put to him, yet he chose not to give any explanation under Section 313 of the Criminal Procedure Code, except denying everything. It is well settled law that when the attention of the accused is drawn to the said circumstances that inculpated him in the crime and if he fails to offer appropriate explanation or gives a false answer, the same can be counted as providing a missing link for building the chain of circumstances. Thus, it is also a circumstance that goes against him.
41. We shall now deal with the decisions on which strong reliance has been placed by Ms. Pandey, the learned Advocate appearing for the accused-appellant, in support of her submissions.
42. In Pavankumar Parasnath Trivari Vs. State of Gujarat, reported in (1999) SCC [Cri.] 352, the charge against the appellant was one of murder punishable under Section 302 of the Indian Penal Code. The case of the prosecution was that the deceased was dragged by force into the house of the appellant and the appellant, thereafter, poured kerosene on the body of the deceased and set her on fire. In the said case, five dying declarations were placed for the consideration of the Court, out of which three were written dying declarations and two were oral. Out of the three written dying declarations, one of the declarations was recorded by an Executive Magistrate. The Supreme Court, after careful consideration of the entire evidence on record, disbelieved the dying declarations and Page 53 of 57 R/CR.A/2113/2008 CAV JUDGMENT while doing so, took the view that the case was one of suicide as contended by the accused. The Court also took note of the opinion of the doctor, who had performed the autopsy that such burning was also possible if somebody would commit suicide. It was submitted by the learned counsel for the appellant that both the palms of the deceased were not burnt. The Supreme Court was of the view that such a fact indicated that the deceased had committed suicide because in that event the palms were not likely to be affected, whereas in a case of homicidal burning by pouring kerosene on the body by another person, the palms along with the other parts of the body would get burnt.
Ms. Pandey placed reliance on this decision with a view to fortify her submission that in the present case also the palms of the deceased were not burnt and that would suggest that the deceased had committed suicide.
43. We are afraid this decision is of no avail to the accused, as the same was delivered in the facts of that particular case and it cannot be said as a universal rule of application that in all cases of burns if the palms of the victim are not affected, then that would point only towards the theory of suicide and not homicide. We have explained in details as regards the implication of the palms being affected or not affected, in cases of burns.
44. In Nallapati Sivaiah Vs. Sub-Divisional Officer, Guntur, A.P. reported in (2007) 15 SCC 465, the Supreme Court has discussed about the evidentiary value of a dying declaration, and the duty of the Court while making it the basis for Page 54 of 57 R/CR.A/2113/2008 CAV JUDGMENT conviction. The Court in the facts of that case observed in paragraph 53 that it would be unsafe to record a conviction on the basis of a dying declaration alone in cases where suspicion is raised as regards the correctness of the dying declaration. The Court held that in such cases, the Court may have to look for some corroborative evidence by treating the dying declaration only as a piece of evidence.
45. This decision also is of no avail to the accused-appellant. We have considered all the circumstances emerging from the record of the case and have reached to the conclusion that both the dying declarations are reliable and trustworthy. So far as the principle explained by the Supreme Court as regards the evidentiary value of the dying declaration is concerned, there cannot be any dispute with regard to the same.
46. In Ranjit Singh and ors. Vs. State of Punjab, reported in (2006) 13 SCC 130, the Supreme Court has observed that conviction can be recorded on the basis of a dying declaration alone, if the same is wholly reliable, but in the event there exists any suspicion as regards correctness or otherwise of the said dying declaration, the courts in arriving at the judgment of conviction shall look for some corroborating evidence. The Court further held that in a case where inconsistencies exist in the dying declarations, in relation to the active role played by one or the other accused persons, the court shall lean more towards the first dying declaration than the second one.
47. This decision also is of no avail to the accused, as the same was rendered in the facts of that case and so far as the principle of law explained in paragraph 13 is concerned, there Page 55 of 57 R/CR.A/2113/2008 CAV JUDGMENT cannot be any dispute regarding the same. In the present case, we have reached to the conclusion that both the dying declarations, one before the Police while recording the complaint, and the other before the Executive Magistrate, are wholly reliable and there is no doubt as regards the truthfulness of the contents of the dying declarations.
48. Therefore, in our opinion, as explained by us in the earlier part of our judgment, it would all depend upon the manner in which the parts of the body gets doused in kerosene and how the fire catches the body. The opinions of the experts are always to be considered in the light of the peculiar facts of the case and such opinions should not be accepted without understanding the actual fact situation of the incident.
49. Therefore, in the overall view of the matter, we are not convinced with the case of the defence that the deceased had committed suicide and the case at hand is not one of homicidal death.
50. The trial Court has discussed the entire evidence threadbare, and in our opinion, has reached to the right conclusion that the prosecution has been able to establish the case against the accused beyond reasonable doubt.
51. Resultantly, this appeal fails and is hereby dismissed. The order of conviction and sentence passed by the learned Additional Sessions Judge, 6th Fast Track Court, Veraval, in Sessions Case No. 66 of 2006, is hereby affirmed.
Page 56 of 57 R/CR.A/2113/2008 CAV JUDGMENT(BHASKAR BHATTACHARYA, C.J.) (J.B.PARDIWALA, J.) Mohandas Page 57 of 57