Gujarat High Court
State Of Gujarat vs State Of Madhya Pradesh Reported In ... on 7 July, 2015
Author: Anant S.Dave
Bench: Anant S. Dave, S.H.Vora
R/CR.A/1066/1993 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL APPEAL NO. 1066 of 1993
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE ANANT S. DAVE
and
HONOURABLE MR.JUSTICE S.H.VORA
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of
the judgment ?
4 Whether this case involves a substantial question of
law as to the interpretation of the Constitution of
India or any order made thereunder ?
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STATE OF GUJARAT....Appellant(s)
RAMANBHAI PUNJABHAI HARIJAN....Opponent(s)/Respondent(s)
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Appearance:
MR HK PATEL APP for the Appellant(s) No. 1
HCLS COMMITTEE, ADVOCATE for the Opponent(s)/Respondent(s) No. 1
MR PRATIK B BAROT, ADVOCATE for the Opponent(s)/Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE ANANT S. DAVE
and
HONOURABLE MR.JUSTICE S.H.VORA
Date : 07/07/2015
CAV JUDGMENT
(PER : HONOURABLE MR.JUSTICE S.H.VORA)
1. Challenge in the present appeal preferred under Section Page 1 of 25 R/CR.A/1066/1993 CAV JUDGMENT 378 of the Code of Criminal Procedure, 1973 (for short, the 'Code') by the State of Gujarat is the judgment dated 07.05.1993 passed by the learned Additional Sessions Judge, Godhra in Sessions Case No.129 of 1992 whereby, respondent
- Mr.Ramanbhai Punjabhai Harijan came to be acquitted of the charges for the offence punishable under Section 302 of the Indian Penal Code (for short, 'I.P.C.') but, sentenced to suffer one and half years' S.I. and to pay fine of Rs.500/-, in default, further S.I. of three months for the offence punishable under Section 498(A) of I.P.C.
2. The prosecution case as unfolded before the trial Court can be stated thus.
2.1. Ms.Dwarikaben, aged about 26 years, was married to one Mr.Gunvantbhai Jethabhai of village: Vajipur and upon dissolution of the marriage with the said person, deceased - Ms.Dwarikaben married to the present respondent before about 7 years of the incident dated 17.03.1992 and were living in Holi Faliya at village: Sanjeli and out of the said marriage, deceased-Ms.Dwarikaben had three children and was carrying about 7 months' pregnancy at the time of the incident. The prosecution case, as projected before the trial Court, reveal that the marital relation was not cordial and the respondent- accused was suspecting her conduct and was quarreling with deceased-Ms.Dwarikaben. It is the case of the prosecution that before a month of the incident in question, deceased- Ms.Dwarikaben was badly beaten and driven out from the house and a day prior to the incident in question, deceased- Ms.Dwarikaben was taken by the respondent-accused from her parental house. On 17.03.1992 at about 9:00 p.m., when Page 2 of 25 R/CR.A/1066/1993 CAV JUDGMENT deceased-Ms.Dwarikaben was sleeping, the respondent- accused poured kerosene over her body and set her fire. It is the case of the prosecution that the accused took deceased- Ms.Dwarikaben from village:Sanjali to the Cottage Hospital at Dahod where, deceased-Ms.Dwarikaben informed P.W.2-Dr.B.L. Mittal that she sustained accidental burn injuries and she was conscious when she was admitted in the said Cottage Hospital, Dahod at 11:30 p.m. Though the parents of the deceased were residing at Dahod, the respondent-accused did not send any intimation to them and on the next day, the respondent- accused intimated the parents of the deceased that deceased- Ms.Dwarikaben had been hospitalized for pregnancy. Upon such representation, brother and mother of deceased- Ms.Dwarikaben went to the hospital and upon their inquiry, deceased-Ms.Dwarikaben informed them that on 17.03.1992 at about 9:30 p.m., she was beaten by the respondent-accused and while she was sleeping, the respondent-accused poured kerosene on her body and put her to fire. Before that, P.W.2- Dr.B.L. Mittal issued Yadi to the concerned police, who reached the hospital at 12:15 a.m. on 18.03.1992 and recorded the statement of deceased-Ms.Dwarikaben wherein, she informed as to how she sustained accidental burn injuries. Thereafter, dying declaration of deceased-Ms.Dwarikaben was recorded on 20.03.1992 and also on the next date, P.W.9-Fatehsing Keshrising recorded her statement and on 22.03.1992, the said witness lodged complaint against the respondent-accused under Section 307 of I.P.C. It is further the case of the prosecution that while deceased-Ms.Dwarikaben was under
treatment at the said Hospital, she died on 11.04.1992.
3. On completion of the usual investigation, the Page 3 of 25 R/CR.A/1066/1993 CAV JUDGMENT chargesheet was filed against the respondent-accused and charge for the offence punishable under Section 302 of I.P.C.
was framed against the respondent-accused, who pleaded not guilty and claimed trial. The prosecution examined 10 witnesses and produced various documents, more particularly, two dying declarations vide Exh.23 and Exh.34. The learned Additional Sessions Judge having examined the prosecution evidence, found that the respondent-accused is not guilty of the offence punishable under Section 302 of I.P.C. and acquitted him. With pain, we may record here that the learned Additional Sessions Judge conducted trial not only in a careless manner but has not kept in mind settled principles of law while appreciating the evidence. The learned Additional Sessions Judge has not examined and discussed any of the dying declarations placed before him. Not only that, though the accused was not charged for the offence punishable under Section 498(A) of the I.P.C., yet he was imposed sentence of one and half years' imprisonment and as stated at bar that the respondent-accused did not challenge the said conviction and he suffered the same. Though it was not the case of the prosecution that deceased-Ms.Dwarikaben committed suicide, however, the learned Additional Sessions Judge, without having any evidence on record, ventured to record finding to the effect that it is because of torture of respondent-accused, deceased-Ms.Dwarikaben committed suicide. This finding is not only unwarranted but it is also unjustified at law and facts because it is not the case of the any of the parties to the proceedings and, in fact, the Court was required to examine whether deceased-Ms.Dwarikaben died due to accidental injuries or it is a case of homicidal death. It is well settled principle of criminal law that an accused can be convicted only Page 4 of 25 R/CR.A/1066/1993 CAV JUDGMENT when, on the evidence produced, the court is in a position to come to a definite conclusion beyond the possibility of reasonable doubt that the accused committed the offence with which he stood charged. No conviction can be based on possibilities nor it is permissible for the Court to speculate as to what had really happened. The accused can be convicted only when the prosecution succeeds in proving that the incident had taken place in the way as alleged by it. In other words, the prosecution must stand on its own legs and cannot take advantage of the weakness of the defence nor can be the Court of its own, make out a new case for the prosecution which is different from the case set up by both the parties. The learned trial Judge observed that it is because of torture of respondent-accused, deceased-Ms.Dwarikaben committed suicide. We disapprove such loose approach on the part of the learned trial Judge while dealing with such a serious case. Upon perusal of the impugned judgment, we have noticed that the learned trial Judge is very much influenced by the panchnama of the scene of offence Exh.12. We are not agree with the findings recorded by the learned trial Judge relying upon such panchnama Exh.12 for the simple reason that the offence in question is occurred on 17.03.1992 whereas, panchnama of the scene of offence is drawn on 21.03.1992 i.e. after 4 days of the incident. There is no iota of evidence that the scene of offence was under protection or it was preserved by the Investigating Agency and, therefore, no weightage can be attached to such piece of evidence to draw any sort of inferences.
4. To begin with, there is no dispute that deceased- Ms.Dwarikaben died due to 60% burn injuries when she was Page 5 of 25 R/CR.A/1066/1993 CAV JUDGMENT under treatment at the Cottage Hospital, Dahod but it is required to be probed whether the burn injuries sustained by her were accidental, homicidal in view of the evidence produced by the prosecution. It is settled principle of law that the prosecution has to prove its case beyond any reasonable doubt while the defence has to prove its case on touchstone of preponderance and probabilities. In the case on hand, we have four dying declarations of the deceased and before placing reliance on any of the dying declaration, it is required to refer to the law reiterated by the Hon'ble Apex Court in the case of Shudhakar V/s. State of Madhya Pradesh reported in (2012)7 SCC 569 that in the cases involving multiple dying declarations, which of the various dying declarations should be believed by the Court. In para 21 of the said judgment, the Hon'ble Apex Court observed as under:-
"21. Having referred to the law relating to dying declaration, now we may examine the issue that in cases involving multiple dying declarations made by the deceased, which of the various dying declarations should be believed by the Court and what are the principles governing such determination. This becomes important where the multiple dying declarations made by the deceased are either contradictory or are at variance with each other to a large extent. The test of common prudence would be to first examine which of the dying declarations is corroborated by other prosecution evidence. Further, the attendant circumstances, the condition of the deceased at the relevant time, the medical evidence, the voluntariness and genuineness of the statement made by the deceased, physical and mental fitness of the deceased and possibility of the deceased being tutored are some of the factors which would guide the exercise of judicial discretion by the Court in such matters."
5. Dying Declaration, if found reliable, truthful and free from Page 6 of 25 R/CR.A/1066/1993 CAV JUDGMENT any embellishment, such a dying declaration, by itself, can be sufficient for recording conviction even without looking for any corroboration. The law is settled in series of pronouncements by the Hon'ble Apex Court that dying declaration is admissible in evidence and its admissibility is founded by the principle of necessity. The above in the form of statement of law, by way of preamble to this judgment has been necessitated as the State in this appeal challenges or puts in question acquittal of the respondent-accused from the charge under Section 302 of I.P.C. and seeks reversal of the impugned judgment and invites this Court to record finding of guilt based on two dying declarations made before P.W.5 at Exh.23 and P.W.9 made vide Exh.34.
6. We are conscious of the fact that it is not the number of dying declarations which will weigh with the Court. A singular dying declaration not suffering from any infirmity and found worthy of being relied on may form the basis of conviction.
7. Deceased-Ms.Dwarikaben died unnatural death on 11.04.1992 having sustained extensive burn injuries on 17.03.1992. She was aged about 26 years at the time of her death. Seven years before the date of incident, she was married to respondent-accused-Mr.Ramanbhai Punjabhai Harijan, the couple had three children at the time of incident and both were living happily and there was no quarrel at all during the said period. It is only when deceased- Ms.Dwarikaben was carrying fourth pregnancy, quarrel started and according to the evidence of the mother and brother of deceased-Ms.Dwarikaben, the respondent-accused had doubt about the conduct of deceased-Ms.Dwarikaben and, therefore, Page 7 of 25 R/CR.A/1066/1993 CAV JUDGMENT the she was beaten which compelled her to leave her matrimonial home. Upon written assurance by the respondent- accused and his father, deceased-Ms.Dwarikaben resumed her matrimonial home in view of compromise arrived at on 24.12.1991 vide Exh.16/27 whereunder, deceased- Ms.Dwarikaben joined back her matrimonial home. Before one month of the incident, deceased-Ms.Dwarikaben was driven out of home. On 17.03.1992, the respondent-accused brought deceased-Ms.Dwarikaben at about 23:30 hrs. at the Cottage Hospital, Dahod in burnt condition and P.W.2-Dr.B.L. Mittal, who was on duty at the relevant time, upon inquiry from deceased-Ms.Dwarikaben, received following information, if freely translated in English, the same reads as under:-
"The patient was conscious and was carrying 7 months pregnancy. She informed about the accidental injury and she has received burn injuries on chest, on both hands and both legs and extensively burnt on the left side of the stomach".
8. The said P.W.2-Dr.Mittal issued Yadi to the concerned police station vide Exh.9. Upon receipt of said Yadi, P.W.8- Mr.Akhmabhai U. Garasiya - police constable, Dahod reached the hospital at about 12:15 a.m. on 18.03.1992 and recorded statement of deceased-Ms.Dwarikaben vide Exh.7. In the said statement, she informed that when she was preparing food, at that time, opener of the stove suddenly opened and all of a sudden, kerosene was spread over her and she received injuries on both her legs, hands and on the left side of the chest. In the said statement, she did not allege anything against the respondent-accused but stated that she suffered accidental burn injuries while cooking. Thereafter, P.W.5- Mr.C.P. Parmar, Deputy Mamlatdar, recorded dying declaration Page 8 of 25 R/CR.A/1066/1993 CAV JUDGMENT of deceased-Ms.Dwarikaben at about 6:00 p.m. on 20.03.1992 vide Exh.23. This is the third dying declaration. Thereafter, on 21.03.1992, P.W.9-Mr.Fatehsing Keshrising recorded statement of deceased-Ms.Dwarikaben. This is the fourth dying declaration which is produced and proved before the trial court vide Exh.34.
9. Upon analysis of evidence of P.W.2-Dr.B.L. Mittal, P.W.5- Mr.C.P. Parmar and P.W.9-Mr.Fatehsing Keshrising, it appears that none of the witnesses deposed about presence of kerosene particles on the clothes of the deceased which she was wearing at the time of incident and not only that the clothes of the deceased were not seized after the incident nor were sent to the FS.L.
10. Deceased-Ms.Dwarikaben succumbed to her injuries and died at 9:00 a.m. on 11.04.1992. Postmortem of her body was conducted by Dr.Srivastav along with Dr.Mittal-P.W.2 which is produced vide Exh.8. On 22.03.1992, P.W.9-Mr.Fatehsing Keshrising lodged the complaint vide mark 5/1 which remained unproved and un-exhibited before the trial Court. It is the duty of the prosecution to prove F.I.R. When the witness is examined in the case, would have been very easily proved such material document as the F.I.R. but, for whatever reason, the learned Additional Public Prosecutor in-charge of the case, failed to get it exhibited and, apart from it, it is the duty of the Court to see that the same is duly proved and exhibited in the case as the Court's function is not merely to observe the proceedings before it as disinterested spectator. No doubt, F.I.R. can be used by way of corroboration or contradiction and no further. For this omission, we are not rejecting the evidence Page 9 of 25 R/CR.A/1066/1993 CAV JUDGMENT of the prosecution witnesses but, we record this fact for the reason that how, a serious offence was dealt with in the hands of the learned A.P.P. and also the learned trial Judge.
11. Assailing the impugned judgment, learned A.P.P. Mr.H.K. Patel for the appellant-State, after taking us to the relevant evidence on record, more particularly, oral depositions of P.Ws.5 and 9, in whose evidence, two dying declarations vide Exhs.23 and 34 made by deceased - Ms.Dwarikaben proved the guilt of the respondent-accused and, therefore, no reliance or weightage can be attached to the initial statement/declaration made by deceased- Ms.Dwarikaben either to P.W.2-Dr.B.L. Mittal or P.W.8- Mr.Akhmabhai U. Garasiya as to theory of accidental burn injuries because at the relevant time, deceased- Ms.Dwarikaben was in the company of the respondent accused. Learned A.P.P. Mr.Patel would contend that the couple was not living happy life and, therefore, it was on the basis of the written assurance vide Exh.16/27, deceased-Ms.Dwarikaben resumed her matrimonial home but she met with an unfortunate incident in the hands of the respondent-accused at the time when she was carrying 7 months' pregnancy. It is also contended by him that after admitting deceased- Ms.Dwarikaben at the Cottage Hospital, Dahod, the respondent-accused left the hospital after taking some ornaments from P.W.4 - mother of the deceased to purchase the medicine and the respondent-accused did not return back to the hospital nor bring medicine and this conduct on the part of the respondent-accused necessarily lead to the conclusion of his guilty mind. Lastly, learned A.P.P. Mr.Patel would contend that at the relevant time, when deceased- Ms.Dwarikaben made declaration before P.Ws.5 and 9, she was Page 10 of 25 R/CR.A/1066/1993 CAV JUDGMENT in a fit state of mind to make the statement and, therefore, both the dying declarations Exhs.23 and 34, cannot be ignored merely because the doctor had not made endorsement that deceased-Ms.Dwarikaben was in a fit state of mind to make the statement. For this proposition, learned A.P.P. Mr.Patel pressed into service the decisions of Hon'ble Apex Court in the case of Laxman V/s. State of Maharashtra reported in (2002)6 SCC 710 and in the case of Kamalavva and another V/s. State of Karnataka reported in (2009)13 SCC 614 wherein, it is held that a certification by the doctor is essentially a rule of caution and, therefore, voluntary and truthful nature of the declaration can be established otherwise.
12. Per contra, learned advocate Mr.Pratik Barot appearing for the respondent-accused would contend that deceased- Ms.Dwarikaben made two dying declarations immediately after the incident before P.Ws.2 and 8 wherein, she disclosed that she suffered accidental burn injuries and did not implicate the respondent-accused in the offence in question. Learned advocate Mr.Barot would contend that the when the subsequent declarations Exhs.23 and 34 made before P.Ws.5 and 9, deceased-Ms.Dwarikaben was in a company of her family members and further, considering the evidence of P.Ws.4 and 6 as to happy married life of deceased- Ms.Dwarikaben and the respondent-accused of about 7 years' prior to the incident, there was no motive or reason on the part of the respondent-accused to commit such crime and, therefore, he has been falsely involved in the offence in question. Learned advocate Mr.Barot would contend that considering the fact that deceased-Ms.Dwarikaben was under
treatment and under the effect of injections which were Page 11 of 25 R/CR.A/1066/1993 CAV JUDGMENT administered to her at 1:00 a.m. on 18.03.1992 and thereafter, continuously for two days, it cannot be inferred, in absence of any cogent evidence, that she was in a fit state of mind to speak and considering the vague reply given by her to P.W.5, it raises suspicion as to voluntariness of the declaration and, therefore, it creates lot of suspicion about credibility of such statement. Learned advocate Mr.Barot would contend that there was no certificate regarding the fact that deceased was in a fit state of mind to give the statement from the doctor and, therefore, considering the vague replies given by deceased-Ms.Dwarikaben, version of dying declaration would become highly doubtful and, therefore, such evidence cannot be accepted as genuine document so as to record findings of guilt against the respondent-accused. Lastly, learned advocate Mr.Barot would contend that there were no injuries on the head or face and considering the nature of cruelty deposed by P.Ws.4 and 6 and also in the alleged writing Exh.16/27, no inference as to any cruelty meted out to deceased- Ms.Dwarikaben can be drawn. On all these broad submissions made at bar and after placing reliance upon the decisions of the Hon'ble Apex Court rendered in the case of Surinder Kumar V/s. State of Haryana reported in 2012(1) G.L.H. 658 and in the case of Muralidhar alias Gidda and another V/s. State of Karnataka reported in (2014)5 SCC 730, learned advocate Mr.Barot would contend that dying declarations Exhs.23 and 34 are not voluntary in nature and the same suffer from various infirmities and, therefore, this Court may not interfere with the order of acquittal passed by the learned trial Judge.
13. Before taking up individual dying declaration for consideration, we would place on record physical and mental Page 12 of 25 R/CR.A/1066/1993 CAV JUDGMENT condition of the deceased soon after the incident and before her death and, more particularly, at the time when the dying declarations dated 20.03.1992 and 21.03.1992 are said to have been made. We are sorry to state that no medical case papers are produced before the trial court but in the cross examination of P.W.2-Dr.B.L. Mittal, who treated the deceased all through out, he deposed on the basis of the case papers which were with him at the time of recording deposition to the effect that on the date of admission and at 1:00 a.m. on 18.03.1992 and thereafter, on 19.03.1992, 20.03.1992 and 21.03.1992, deceased-Ms.Dwarikaben was given Fortwin and Pethidine injections. We can also take judicial note of the fact that no sooner a patient with extensive burns is admitted in a hospital, first thing the doctors would do as a part of treatment to relieve the patient from pain is to administer injections like Fortwin and Pethidine. They would try to keep the patient under constant sedatives. In this factual background of the case, it is very essential for the prosecution to bring on record the cogent, convincing and reliable evidence as regards the condition of the maker of statement. The aforesaid injections were administered at 1:00 a.m. on 18.03.1992 and before that, deceased-Ms.Dwarikaben made statement before P.W.Nos.2 and 8 to the effect that she received accidental burn injuries. We are required to keep this aspect in our mind because deceased - Ms.Dwarikaben immediately upon her admission in the hospital and when she was in the hands of two independent persons, namely, P.W.Nos.2 and 8, made a declaration that she received accidental injuries while cooking. There is no allegation against both these witnesses as they being worn over by the accused side but both the prosecution witnesses of their own, disclosed before the trial Court that Page 13 of 25 R/CR.A/1066/1993 CAV JUDGMENT deceased-Ms.Dwarikaben made such declaration immediately upon her admission in the hospital and before she was administered the above injections. It is a fact that deceased- Ms.Dwarikaben made two dying declarations vide Exhs.23 and 34 at the time when she was regularly administered the aforesaid two injections and, therefore, it would required to probe whether it would have any impact on the credibility of dying declarations.
14. Having heard the learned advocates appearing for the respective parties and after giving serious consideration to the various submissions made before us, we find that the submissions of learned A.P.P. Mr.H.K. Patel for the appellant raise questions for our consideration, namely, whether dying declaration Exh.23 and 34 can be relied upon as reliable and truthful declarations and deceased-Ms.Dwarikaben made such declarations in a fit state of mind and she was capable of making the statement when dying declarations were made and/or recorded by P.Ws.5 and 9 so as to sign the judgment of conviction against the respondent-accused.
15. We will now take up and deal with each of the dying declarations individually. The first dying declaration made to P.W.5-Mr.C.P. Parmar, Deputy Mamlatdar at about 6:00 p.m. on 20.03.1992.
16. According to P.W.5-Mr.C.P. Parmar, at the relevant time, he was holding the post of the Deputy Mamlatdar and he was requested by the Mamlatdar to record the statement at the hospital. The said witness reached at the hospital at 6:00 p.m. and at that time, mother and brother of deceased-
Page 14 of 25 R/CR.A/1066/1993 CAV JUDGMENTMs.Dwarikaben were sitting beside her and he instructed them to leave the room and thereafter, he inquired as to how deceased-Ms.Dwarikaben received injuries. He further deposed that the deceased informed that her husband set her fire and further, she was in a position to speak. It is also deposed by him that before he met deceased-Ms.Dwarikaben, he contacted Dr.B.L. Mittal and said doctor informed him that deceased-Ms.Dwarikaben is conscious and she can speak. Thereafter, he made inquiry about the incident and recorded statement of the deceased and obtained her signature in her dying declaration which was produced at Exh.23. To test the veracity of this witness, he was confronted with the fact that he was given cyclostyle form by the Magistrate/Mamlatdar. He has categorically stated in his deposition that a doctor has not given certificate to the effect that deceased-Ms.Dwarikaben was in a position to give declaration. He has also admitted that he has not taken endorsement of doctor either before or after the statement. In reply to the question as to whether deceased-Ms.Dwarikaben knew him, she stated that my husband has admitted me in the hospital. Upon our minute examination of said dying declaration Exh.23 from the nature of question - answers, it cannot be said that deceased- Ms.Dwarikaben understood the questions and gave proper answers. Therefore, it is difficult to conclude that mental capacity of deceased-Ms.Dwarikaben was sound and she was capable to give answers to the questions put-forth by P.W.5. Suffice it to produce three questions and answers from dying declaration Exh.23 which, if freely translated in English, read as under:-
"Q.1. Do you know me?
A. My husband came here to admit me.Page 15 of 25 R/CR.A/1066/1993 CAV JUDGMENT
Q.2. Are you married? Do you harassed physically or mentally by your family members or other persons knowingly or unknowingly?
A. Yes. I have three children, I am pregnant and I am married since 7 - 8 years.
Q.3. Do you want to say anything else?
A. My husband is unemployed. Doing casual labour. He is addicted to liquor. Many attempts were made to improve my husband by the community people but it did not succeed."
17. This statement Exh.23 does not bear any endorsement by any doctor either in-charge of burns ward attending the victim or the person in the hospital verifying physical and mental condition of deceased-Ms.Dwarikaben so as to make the statement. At the end of the statement, P.W.5 obtained thumb impression of deceased-Ms.Dwarikaben and put his signature in token of the fact that the said statement was read over to deceased-Ms.Dwarikaben and explained to her.
18. Now, coming to the second dying declaration Exh.34 recorded by P.W.9, the said witness came at the hospital after receiving the dying declaration recorded by P.W.5. The said statement dated 21.03.1992 was recorded in the writing of one constable - Mr.Pravinsinh and at the end of the statement, deceased-Ms.Dwarikaben put her signature in present of said witness P.W.9. In the cross-examination, the said witness admits that he has not inquired about her condition through any doctor. He further admitted that he has not seen on which part of her body, there were burn injuries but he states that both the hands of the deceased were burnt.
19. Except evidence of P.Ws.5 and 9, as to deceased - Ms.Dwarikaben being conscious at the time of recording dying Page 16 of 25 R/CR.A/1066/1993 CAV JUDGMENT declaration on 20.03.1992 and 21.03.1992 respectively, no other witness, more particularly, P.Ws.4 and 6 i.e. mother and brother of deceased-Ms.Dwarikaben deposed before the Court that deceased-Dwarikaben was conscious or was able to speak on 20.03.1992 and 21.03.1992. The absence of medical evidence to show that deceased-Ms.Dwarikaben was in a fit state of mind and physical condition to have at all made statement and signed the same, prima facie, unsustainable because P.W.5 has obtained thumb impression whereas, P.W.9 has obtained signature on the deceased on the statement Exhs.23 and 34 respectively. Looking to the fact that the deceased was administered injections of Fortwin and Pethidine continuously from 1:00 a.m. on 18.03.1992 to 21.03.1992 and in absence of any evidence either medical evidence or from the relative of the deceased-Ms.Dwdarikaben to the effect that deceased was conscious when her statements were recorded, it would not be safe to accept either of the dying declarations as true and genuine and were made when deceased-Ms. Dwarikaben was in a fit state of mind. We have also noticed that while answering three questions as reproduced hereinabove to the P.W.5, the deceased has not properly understood the questions. It becomes clear from the fact that though P.Ws.4 and 6, mother and brother of deceased- Ms.Dwarikaben alleged that the respondent-accused was maintaining doubt about the conduct of the deceased and, therefore, she was beaten but, in her so-called dying declarations before P.W.5, she has not stated about such fact but, only disclosed that the respondent-accused has habit to take drink.
20. Since the Court faced with the situation where, the Page 17 of 25 R/CR.A/1066/1993 CAV JUDGMENT learned trial judge has not examined or evaluated the evidence in the form of dying declarations at all and upon our own independent assessment and appreciation of evidence, we found that no reliance can be placed upon any of the dying declarations so as to record guilt of the respondent-accused. No doubt certification by the doctor is a rule of caution but at the same time, the voluntary and truthful nature of declaration requires to be established by the prosecution because dying declaration not being a deposition in the Court, neither made on oath nor in presence of the accused and, therefore, not tested by cross examination is yet admissible in evidence as an exception to the general rule against the admissibility of heresay evidence. The above weak points of dying declarations surfacing on record compel us to closely scrutinize all the relevant attending circumstances and upon our independent scrutiny of evidence placed before the trial Court, we have no option but to record finding that the prosecution failed to prove that deceased-Ms.Dwarikaben was in a fit state of mind and capable of making statement at the time when both the declarations Exh.23 and 34 were recorded on 20.03.1992 and 21.03.1992 respectively. Looking to the nature of reply tendered by deceased-Ms.Dwarikaben to P.W.5, we have doubt about the capacity of deceased-Ms.Dwarikaben to narrate the facts and, therefore, grave doubts are surfaced whether deceased - Ms.Dwarikaben was in a fit physical and mental state of mind to make the statement, more particularly, when there is no corroborative evidence leading assurance to the contents of declaration and her condition.
21. After careful perusal of the entire record, minute evaluation of the evidence, oral as well as documentary, this Page 18 of 25 R/CR.A/1066/1993 CAV JUDGMENT Court is of the opinion that because of serious illegalities, irregularities, fault and lapses committed by the Investigating Agency and non-discharge of onerous duty of the prosecutor in-charge of the case and also improper and careless conduction of the trial by the trial Court, this Court is left with no option but to acquit the respondent-accused. For the sake of repetition, we may note here that panchama of the scene of offence came to be prepared on 21.03.1992 i.e. after four days of the incident and, therefore, no clue as to occurrence of incident would be available. Not only that, no attempt was made to preserve and protect the scene of offence by the Investigating Agency nor the clothes wore by deceased- Ms.Dwarikaben at the time of incident were seized as muddamal so as to establish usage of kerosene while setting her fire. None of the witnesses, more particularly, P.W.2-Dr.B.L. Mittal nor any other witness found smell of kerosene on the body of deceased-Ms.Dwarikaben nor P.W.9-Fatehsing Keshrising deposed that deceased-Ms.Dwarikaben informed him that the kerosene was poured over her body by the respondent-accused. Not only that the prosecution has not examined one Mr.Bhura Mathur, who rushed to the spot of incident immediately as per panchnama Exh.12 and thus, genesis of crime remained undiscovered though the prosecution has come out with a specific case that the respondent- accused poured kerosene over body of deceased- Ms.Dwarikaben while she was sleeping but, while examining, P.W.2-Dr.B.L. Mittal has nowhere mentioned in his evidence about presence of kerosene oil or smell of kerosene oil either on the clothes of deceased-Ms.Dwarikaben or her body. Similarly, immediately, after the incident, number of neighbours rushed to the scene of offence but none of the Page 19 of 25 R/CR.A/1066/1993 CAV JUDGMENT neighbour was examined by the concerned Investigating Officer nor any statement recorded.
22. We have examined the circumstances leading to the execution of written declaration alleged to have been made by the respondent - accused vide Exh.16/27, inter alia, assuring that he would neither beat deceased-Ms.Dwarikaben nor quarrel with her. Upon perusal of the said writing, we find that it is executed before the Dahod Panch. In this connection, if we examine the depositions of P.Ws.4 and 6, they both have given inconsistent versions as to execution of this writing in the presence of Dahod Panch. Further, the said writing does not refer to the fact that the respondent-accused was doubting the character of deceased-Ms.Dwarikaben or he admitted of having habit of taking drink. So, we do not find it safe to rely upon such writing because, one of the witnesses, namely, P.W.7-Mr.Mansingbhai Thavrabhai, in his cross-examination, in terms, admitted that after the said writing, P.W.6-brother of the deceased, has not disclosed to him that deceased- Ms.Dwarikaben was extended any torture. We have further noticed that P.Ws.4 and 6 i.e. mother and brother of deceased-Ms.Dwarikaben, deposed before the Court that the respondent-accused, in a drunken condition, beaten deceased-Ms.Dwarikaben and thereafter, set her ablaze after pouring kerosene on her. According to both these witnesses, such fact was disclosed by deceased-Ms.Dwarikaben while she was in hospital. As against this, P.W.9, who recorded statement Exh.34, stated that when deceased-Ms.Dwarikaben was sleeping, the respondent - accused poured kerosene and set her ablaze. Such inconsistent version as to occurrence of incident does not permit us to rely upon dying declaration Exh.34 on one hand and also oral declaration made before Page 20 of 25 R/CR.A/1066/1993 CAV JUDGMENT P.Ws.4 and 6. We have considered the propositions of law laid down in the decisions cited at bar by learned A.P.P. and we may say that we are not discarding the dying declaration merely absence of certification as to the fitness of declarant's state of mind but, the dying declarations of deceased- Ms.Dwarikaben in the present case, are neither truthful nor correct, much less, inspire any confidence though deposed by P.W.5-Mr.C.P. Parmar, Deputy Mamlatdar about fitness of state of mind of deceased-Ms.Dwarikaben and if it is considered alongwith the attending circumstances, findings and nature of overall evidence surfaced on record, sole reliance cannot be placed on any of the dying declarations Exh.23 or 34 to establish the guilt of the respondent-accused and, therefore, we do not find any substance in the appeal preferred at the instance of the State.
23. At this stage, it is relevant to reproduce the observations made by the Hon'ble Apex Court in para 19 in the case of Rafique alias Rauf & others V/s. State of U.P. reported in AIR 2013 SC 2272 which reads as under:-
"In this context, we can also make a reference to a decision of this Court reported in Cherlopalli Cheliminabi Saheb and another v. State of Andhra Pradesh - (2003) 2 SCC 571 :
(AIR 2003 SC 1014), where it was held that it was not absolutely mandatory that in every case a dying declaration should be recorded only by a Magistrate. The said position was reiterated in Dhan Singh v. State of Haryana - (2010) 12 SCC 277 : (2010 AIR SCW 5954) wherein, it was held that neither Section 32 of the Evidence Act nor Section 162(2) of the Cr.P.C., mandate that the dying declaration has to be recorded by a designated or particular person and that it was only by virtue of the Page 21 of 25 R/CR.A/1066/1993 CAV JUDGMENT development of law and the guidelines settled by the judicial pronouncements that it is normally accepted that such declaration would be recorded by a Magistrate or by a doctor to eliminate the chances of any doubt or false implication by the prosecution in the course of investigation."
24. So, dying declaration made to a police officer is admissible in evidence. However, practice of dying declaration being recorded by the Investigating Officer has been discouraged and the Hon'ble Apex Court has advised the Investigating Officer to avail services of Magistrate, for recording dying declaration if it was possible to do so and only exception is when the deceased was in such a precarious condition that there was no other alternative left except the statement being recorded by the Investigating Officer or the police officer later on relied as dying declaration. In the present case, P.W.9-Fatehsing Keshrising-Investigating Officer has already received dying declaration Exh.23 recorded by P.W.5-Deputy Mamlatdar. However, said P.W.9 obtained dying declaration Exh.34 in contrast with the declaration made by the deceased before her mother. Therefore, it is unsafe to rely upon such dying declaration.
25. Now, coming to the subsequent conduct on the part of the respondent-accused in leaving the hospital after admitting deceased-Ms.Dwarikaben, necessarily, would not lead to a firm conclusion of guilty mind. Even an innocent man, who may feel panicky and tried to evade arrest when wrongly suspected of a grave crime. Though P.W.4 stated that she gave ornaments to the respondent - accused to purchase medicines for her daughter and thereafter, the respondent - accused did not return to the hospital, does not inspire any confidence in our Page 22 of 25 R/CR.A/1066/1993 CAV JUDGMENT mind for the simple reason that P.W.6, who was also present along with P.W.4, did not disclose such fact but, on the contrary, he deposed that for the purpose of buying medicines, the respondent-accused left the hospital and thereafter, he did not return. On the contrary, in the statement made before the police, he disclosed that in the morning, the respondent - accused was in the hospital and he brought medicines. Such disclosure made in the police statement was also admitted in para 11 of his cross-examination recorded below Exh.26. So, we do not find any fault in the conduct of the respondent- accused of leaving the hospital. Even if he left the hospital, the evidence is such that the respondent-accused himself brought deceased-Ms.Dwarikaben at hospital for treatment and, therefore, such conduct by itself cannot be made base to infer guilty mind of the respondent-accused and to record finding of conviction only on this ground.
26. While parting with this judgment, we express our great dissatisfaction to the manner in which the investigation was conducted by the Investigating Officer and prosecution conducted by learned A.P.P. Mr.H.K. Choksi. This Court also expresses its discontentment for the learned trial Judge, who had not taken serious care during the course of recording evidence and not made use of provisions under Section 165 of the Indian Evidence Act as well As Section 311 of the Code which read as under:-
"Section 165 of Evidence Act:- Judges power to put questions or order production: The judge may, in order to discover or to obtain proper proof of relevant facts, ask any question he places, in any form, at any time, of any witness, or of the parties, about any fact relevant or irrelevant; and may order the production of any document or thing; and neither Page 23 of 25 R/CR.A/1066/1993 CAV JUDGMENT the parties nor their agents shall be entitled to make any objection to any such question or order, nor, without the leave of the Court, to cross-examine any witness upon any answer given in reply to any such question:
Provided that the Judgment must be based upon facts declared by this Act to be relevant, and duly proved:
Provided also that this section shall not authorize any Judge to compel any witness to answer any question, or to produce any document which such witness would be entitled to refuse to answer or produce under sections 121 to 131, both inclusive, if the questions were asked or the documents were called for by the adverse party; nor shall the Judge ask any question which it would be improper for any other person to ask under section 148 or 149; nor shall he dispense with primary evidence of any document, except in the cases hereinbefore excepted."
Section 311 of Code of Criminal Procedure Power to summon material witness, or examine person present. Any Court may, at any stage of any inquiry, trial or other proceeding under this Code, summon any person as a witness, or examine any person in attendance, though not summoned as a witness, or recall and re-examine any person already examined; and the Court shall summon and examine or recall and re-examine any such person if his evidence appears to it to be essential to the just decision of the case."
27. Under these provisions, the learned trial Court has ample powers and discretion to interfere with and control conduction of trial properly, effectively and in the manner prescribed by law. While conducting trial, the Court is not required to sit silent spectator but to take active part well within boundaries of law. Way back in the 1981, Hon'ble Apex Court in the case of Ram Chander V/s. The State of Haryana reported in AIR 1981 SC 1036 in para 2 observed as follows:-
"2. The adversary system of trial being what it is, there is an unfortunate tendency for a judge presiding Page 24 of 25 R/CR.A/1066/1993 CAV JUDGMENT over a trial to assume the role of a referee or an umpire and to allow the trial to develop into a contest between the prosecution and the defence with the inevitable distortions flowing from combative and competitive elements entering the trial procedure. If a Criminal Court is to be an effective instrument in dispensing justice, the presiding judge must cease to be a spectator and a mere recording machine. He must become a participant in the trial by evincing intelligent active interest by putting questions to witnesses in order to ascertain the truth."
28. We could have directed to forward the copy of the judgment to the concerned authority for taking appropriate action but, we have been informed that neither learned Presiding Judge-Mr.Himmatsinh Mahida nor learned A.P.P. Mr.H.K. Choksi nor the Investigating Officer are in service and, therefore, we left this issue here only.
29. For the forgoing discussion, it is not possible to sign the judgment of conviction by reversing the order of acquittal passed by the learned trial Judge and, therefore, we dismiss the appeal preferred by the State for the reasons recorded hereinabve and not for the reasons recorded by the learned trial Judge. Since the respondent - accused is on bail, his bail bonds shall stand cancelled.
(ANANT S.DAVE, J.) (S.H.VORA, J.) Hitesh Page 25 of 25