Gujarat High Court
Kantilal vs State on 8 August, 2011
Author: Z.K.Saiyed
Bench: Z.K.Saiyed
Gujarat High Court Case Information System
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CR.A/542/2002 13/ 13 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
APPEAL No. 542 of 2002
For
Approval and Signature:
HONOURABLE
MR.JUSTICE Z.K.SAIYED
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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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KANTILAL
BHIKHABHAI JOSHI - Appellant(s)
Versus
STATE
OF GUJARAT - Opponent(s)
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Appearance :
MR
BHARAT JANI for
Appellant(s) : 1,
MR HL JANI, LD. ADDL. PUBLIC PROSECUTOR for
Opponent(s) : 1,
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CORAM
:
HONOURABLE
MR.JUSTICE Z.K.SAIYED
Date
: 08/08/2011
ORAL
JUDGMENT
The present appeal, filed under Section 374 of the Code of Criminal Procedure, 1973, is directed against the judgment and order of conviction and sentence dated 03rd June, 2002 passed by the learned Additional Sessions Judge, Veraval, in Sessions Case No.174 of 1999, whereby the learned Additional Session Judge was pleased to convict the appellant for the offence punishable under Section 306 of the Indian Penal Code and sentenced him to undergo rigorous imprisonment for a period of four years, and also imposed fine of Rs.2,000/-, and in default of payment of fine; sentenced him to undergo rigorous imprisonment for a further period of two months. The appellant was also convicted for the offence punishable under Section 498-A of the Indian Penal Code and and sentenced to undergo rigorous imprisonment for a period of one-and-half-year with fine of Rs.500/-, and in default of payment of fine, sentenced to undergo rigorous imprisonment for a further period of 15 days. However, it was clarified that both the sentences shall run concurrently.
As per the case of the prosecution, the appellant got married with the deceased prior to five years from the date of incident. It is the case of the prosecution that appellant and deceased-wife of appellant, residing separately because of the say of the deceased-wife; however, the appellant regularly visiting his parents. As per the case of the prosecution, on the day of incident also the appellant visited his parents and when the deceased-wife asked him as to why he had visited his parents though they are not talking to her, the appellant slapped thrice to the deceased-wife and told her that if she wants to live with him, she can, otherwise she could go to her parental home. The appellant further told the deceased-wife that he would go to her father's house. It is also the case of the prosecution that the appellant often used to beat the deceased-wife and threatened the deceased-wife to go to her parental home and therefore, because of the mental and physical cruelty imposed upon the deceased-wife, she poured kerosene on herself and set herself on fire. Because of burning, the deceased-wife shouting and therefore, Lakhabhai Rabari, Dilubhia and the appellant rushed there and covered her body by mattress and extinguish the fire. Thereafter, the deceased-wife was taken to Government Hospital at Maliya. At that time she was in conscious state of mind and gave a compliant to the said effect to Constable.
Thereafter, the investigation carried out and statements of witnesses were recorded, panchnama of seen of offence came to drawn and as sufficient evidence was found, the appellant came to be arrested. Thereafter, on 19th September, 1995 charge-sheet came to be filed against the appellant for the offence under Sections 306 and 498-A of the Indian Penal Code in Maliya Court. Thereafter, as the offence offence was exclusively triable by the Court of Sessions, the case is transferred to the Sessions Court, Junagadh. Thereafter, the learned Judge, Veraval framed charge at Exhibit 1 against the appellant and read over and explained to the appellant, to which the appellant pleaded not guilty and claimed to be tried. Thereupon the prosecution adduced its oral and documentary evidence. The prosecution has examined in all 14 witnesses. After the prosecution concluded its oral evidence, the learned Judge, Veraval recorded the further statement of the appellant under Section 313 of the Code of Criminal Procedure, 1973.
After considering the oral as well as documentary evidence and after hearing the parties, the learned (Second Extra) Additional Sessions Judge, Veraval, by his judgment and order dated 03rd June, 2002 held the present appellant-accused guilty to the charges levelled against him as mentioned aforesaid.
Being aggrieved by and dissatisfied with the impugned judgment and order of conviction and sentence passed by the learned (Second Extra) Additional Sessions Judge, Veraval, the appellant has preferred the present appeal.
Heard Mr.Bharat G. Jani, leaned counsel for the appellant and Mr.H.L. Jani, learned Additional Public Prosecutor for the respondent-State.
Mr.B.G. Jani, learned counsel appearing for the appellant, read the charge at Exhibit 1 and contended that looking charge framed against the appellant, prosecution has failed to prove its case beyond reasonable doubt. He has contended that main ingredient of provocation, instigation and abetment is not proved. It is the duty of the prosecution to prove that due to abetment and instigation, the deceased has committed suicide. He has also contended that because of desire of the deceased-wife, she and the appellant residing separately and the deceased-wife was not even permitted the appellant to visit his parents house. Yet, the appellant had visited his parents house and therefore, she felt bad and has committed suicide. Mr.Jani has further contended that the conduct of the deceased-wife itself shows that there was no abetment or provocation on the part of the appellant. He has contended that there was no instigation or provocation to such an extent which had driven the deceased to commit suicide and she was not subjected to such a cruelty by willful conduct or grave injury was caused to her, which would be the reason to commit suicide. Mr.Jani has also contended that in the present case, all the material witnesses are declared hostile and only from the oral evidence of Executive Magistrate as well as police witness, the learned Additional Sessions Judge has considered that the dying declarations made before the Executive Magistrate and police is trustworthy, reliable and acceptable. He has contended that there are discrepancies in the dying declarations and therefore, the said dying declarations cannot be taken into consideration to convict the appellant. Mr.Jani has also contended that without looking into the inconsistency in the statements recorded before the Executive Magistrate and Police Constable, the learned Judge has convicted the appellant for the offence under Section 306 of the Indian Penal Code. He, therefore, contended that reliance placed on the said two statements by the learned Judge is not proper and therefore, the judgment and order is required to be quashed and set aside. Mr.Jani has further contended that it is the duty of the prosecution to prove that at the time when the statements of deceased-wife were recorded by the Executive Magistrate and Police Constable, the deceased-wife was conscious and she was mentally fit to give statement. In the instant case, Dr.Kamuben had only endorsed that the deceased-wife was in conscious condition; however, she has not certified that the deceased-wife was mentally fit to give statement. Mr.Jani therefore contended that considering the legal position and decisions rendered by this Court as well as by the Supreme Court, the appellant was required to be given at least benefit of doubt. He has further contended that due to extensive burn injuries received on her body, the deceased succumbed to death on the next date and therefore, it cannot be believed that she was mentally fit and conscious to give statements. The learned Judge has not properly appreciated this aspect of the matter and has wrongly convicted the appellant. He has relied upon judgment in the case of Kantilal Vs State of Rajasthan reported in (2009) 12 Supreme Court Cases 498 and contended that in this case, the Supreme Court has held that the admissibility of dying declaration as to any of the circumstances which resulted in his death must have some close and proximate relation with the actual occurrence and such proximity would depend upon the circumstances of each case. The dying declaration should be voluntary and should not be prompted and physical as well as mental fitness of the maker is to be proved by the prosecution. For placing implicit reliance on dying declaration, the court must be satisfied that the deceased was in a fit state of mind to narrate the correct facts of the occurrence. If the capacity of the maker of the statement to narrate the facts is found to be impaired, such dying declaration should be rejected, as it is highly unsafe to place reliance on it. Mr.Jani has also relied upon the judgment in the case of Smt.Laxmi v. Om Prakash and others reported in AIR 2001 Supreme Court 2383 and contended that in this case, the Supreme Court has held that dying declaration could be rely upon only when the Court satisfied that deceased was in fit state of mind and capable of making statement when dying declaration was made and or recorded. He has contended that in the instant case there is no certificate and/or endorsement by the doctor certifying that the deceased-wife was mentally fit to speak and to give statements. He has also contended that the learned Judge has not considered the case of the defence and wrongly convicted the present appellant. Mr.B.G. Jani has contended that looking to the evidence produced on record, prosecution has failed to prove the case beyond reasonable doubt against the appellant and therefore, prayed that present appeal is required to be allowed and the appellant is required to be acquitted from the charges levelled against him.
As against this, Mr.Jani, learned Additional Public Prosecutor, has contended that the judgment and order passed by the learned Additional Sessions Judge is absolutely just and legal. He has contended that the prosecution has proved its case beyond reasonable doubt. He has contended that looking to the overall facts and circumstances of the case, the learned Judge has passed absolutely just and legal order and is not required to be interfered with. He has contended that so far as submission of learned counsel for the appellant that there was no certificate and/or endorsement of the doctor regarding mental position of the deceased-wife is concerned, it is not fatal to the case of the prosecution. He has relied upon the judgment in the case of Abrar Vs. State of Uttar Pradesh reported in AIR 2011 Supreme Court 354 and contended in this case, the Supreme Court has observed that the case rests upon the three dying declarations and the dying declarations are unanimous as the accused find mention therein. It is also observed by the Supreme Court that if there were minor discrepancies inter-se in the three dying declarations, they were to be accepted as something normal. He has contended that this judgment is applicable in the present case as the facts of this case is similar to the facts of the present case. He has also relied upon judgment of Constitutional Bench in the case of Laxman Vs. State of Maharashtra reported in (2002) 6 Supreme Court Cases 710 and contended that the Supreme Court has held that Court must decide that the declarant was in a fit state of mind to make the declaration but where the eyewitnesses' evidence (in the present case, the evidence of the Magistrate who had recorded the dying declaration) to that effect was available, mere absence of doctor's certification as to the fitness of the declarant's state of mind, would not ipso facto render the dying declaration unacceptable. It is further held by the Supreme Court that the evidentiary value of such a declaration would depend on the facts and circumstances of the particular case. He has also contended that even dying declaration made before Constable, Head Constable, P.S.I. or P.I. is admissible in eye of law and it cannot be simply thrown away. Mr.Jani has read charge at Exhibit 1 and contended that prosecution has proved the charge framed against the appellant. He has read oral evidence of P.W. No.7 and contended that prosecution has proved the contents of panchnama of seen of offence. He has also read oral evidence of P.W. No.10 at Exhibit 33 and also read the contents of P.M. Note (Exhibit 35) contended that the deceased-wife had received serious burn injuries, because of which she succumbed to death. He has also read oral evidence of Executive Magistrate-P.W. No.11 at Exhibit 36 and contended that he is a public servant and an independent witness and he has no enmity against the appellant to falsely implicate the appellant in the offence in question. Mr.Jani has also read dying declaration at Exhibit 38 and contended that it is proved beyond reasonable doubt that due to the abetment, provocation and instigation of the appellant, deceased-wife has committed suicide. He has also read the oral evidence of P.W. No.13 at Exhibit 40 and contended that this witness has specifically stated regarding harassment of the present appellant. He has also read the oral evidence of Investigating Officer-P.W. No.14 at Exhibit 41, oral dying declaration made before the Head Constable at Exhibit 43 and contents of F.I.R. at Exhibit 42 and contended that prosecution has proved beyond reasonable doubt that all the three dying declarations are trustworthy, reliable and acceptable and therefore, no corroboration is required from witness. The dying declarations are credible and their admissibility cannot be doubted. Thus, when the prosecution has proved its case beyond reasonable doubt against the appellant, no lenient view is required to be taken in the matter. Mr.Jani therefore, contended that present appeal is required to be dismissed and judgment and order of conviction and sentence is required to be confirmed.
I have heard learned counsel for the parties and perused the papers produced before me. I have also considered the submissions advanced by the learned counsel for the respective parties. In the instant case, there are three dying declarations, one is in the form of complaint, one before the Executive Magistrate and one before Police Head Constable. Thus, there are three dying declarations before different persons, who are public servants. Defence has never made any attempt to establish that there was some enmity and therefore, the appellant has wrongly involved in the offence. I have perused all the dying declarations and I have not find out any inconsistency in the dying declarations. It appears from the papers that on the day of incident, the appellant slapped thrice the deceased-wife and told her to go to her parental house. Even it also appears from the papers that the appellant often beaten the deceased-wife and threatened her to go to her parental house and therefore, she felt bed and committed suicide. The deceased-wife in her dying declaration before the Executive Magistrate specifically stated that because of the harassment of her husband, she poured kerosene and set herself on fire. She has also stated that because of harassment of her husband she set herself on fire. It also appears from the papers that father, mother and other relatives were not present in the hospital at Maliya when the dying declaration was recorded by the Executive Magistrate. Thus, the dying declaration recorded by the Executive Magistrate can be said to be trustworthy, reliable and acceptable. The contents of dying declarations shows instigation, provocation and abetment on the part of the appellant. There is no contradictory version made by the deceased-wife in her all the three dying declarations. I have also perused contentions of dying declaration, which is in the form of F.I.R. It appears that the prosecution has proved its case beyond reasonable doubt against the appellant. It is proved that due to harassment, provocation, instigation and abetment, the deceased-wife had committed suicide. It is true that all the material witnesses turned hostile, but when the dying declarations are proved to be credible, then no corroboration is required from any witness. It appears from the papers that the deceased-wife was conscious when dying declaration was recorded by the Executive Magistrate and Head Constable. It appears from the papers that as per the evidence of doctor at Exhibit 25, the deceased-wife was conscious and mentally fit to give statement and even she was fit at the time when she was referred to Civil Hospital, Jamnagar. I have also perused the judgment of the Supreme Court in this regard, which shows that when the dying declarations are unanimous, minor discrepancies inter-se of has to be accepted as something normal. In the instant case the deceased was in fit state of mind to make declaration and when eyewitnesses' evidence (in the present case, the evidence of the Magistrate who had recorded the dying declaration) to that effect was available, mere absence of doctor's certification as to the fitness of the declarant's state of mind, would not ipso facto render the dying declaration.
I have also considered the argument of Mr.B.G. Jani, learned counsel for the appellant, that the appellant is living with her second wife and children. He is the only bread winner for his family and therefore, some lenient view may be taken. The learned Additional Sessions Judge has convicted the appellant for the offence under Section 306 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for a period of four years. The learned Judge has already taken lenient view and awarded sentence of four years and therefore, no lenient view is required to be taken in the matter.
Hence, in view of foregoing reasons, present appeal fails and is hereby dismissed. The Judgment and order of conviction and sentence dated 03rd June, 2002 passed by the learned Additional Sessions Judge, Veraval, in Sessions Case No.174 of 1999, is hereby confirmed. The appellant-accused is on bail. His bail bonds shall stand cancelled. The appellant-accused is, therefore, directed to surrender himself before the Jail Authority within a period of four weeks from today to undergo the remaining sentence, failing which the Court concerned is directed to issue Non-bailable warrant against the appellant-accused to effect his arrest. Record and Proceedings, if any, be sent back to the trial Court concerned, forthwith.
(Z. K. Saiyed, J) Anup Top