Gujarat High Court
State Of Gujarat vs Kanubhai Mafatlal Parmar on 3 June, 2024
NEUTRAL CITATION
R/CR.A/381/1995 JUDGMENT DATED: 03/06/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 381 of 1995
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE SANDEEP N. BHATT
and
HONOURABLE MR. JUSTICE J. C. DOSHI
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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
Versus
KANUBHAI MAFATLAL PARMAR & ORS.
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Appearance:
MS DIVYANGANA ZALA, APP for the Appellant(s) No. 1
ABATED for the Opponent(s)/Respondent(s) No. 3
HCLS COMMITTEE(4998) for the Opponent(s)/Respondent(s)
No. 1,2
MR KAIVAN K PATEL(6338) for the OpponentNo. 1,2
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NEUTRAL CITATION
R/CR.A/381/1995 JUDGMENT DATED: 03/06/2024
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CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT
and
HONOURABLE MR. JUSTICE J. C. DOSHI
Date : 03/06/2024
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE J. C. DOSHI)
1. Feeling aggrieved and dissatisfied with the judgment and order of acquittal dated 31.12.1994 passed by the learned Addl. Sessions Judge, Mehsana in Sessions Case No.103 of 1994, whereby the respondents accused came to be acquitted for the offences under section 302 of Indian Penal Code, the appellant - State has preferred present appeal under section 378 of the Code of Criminal Procedure, 1973 ("the Code" for short).
2. Accused No.3 Mafatlal Parmar since expired, case against him stood abated as per order of this court dated 16.9.2022.
3. The brief facts of the prosecution case are that Banumatiben wife of Kanubhai Mafatlal lodged a complaint before the Constable of Civil Hospital at Mehsana on 12.12.1993 inter alia contending that on the day prior to the incident her husband under suspicion had beaten the complainant and thereafter in the morning on 12.12.93 at about 10 A.M. accused poured kerosene on her and set her on fire and as a result of which complainant received burns injury at that time her mother-in-law Lakhiben and father-in-law fatlal were also present. On receiving fire on her body, she Page 2 of 35 Downloaded on : Fri Jun 07 21:10:18 IST 2024 NEUTRAL CITATION R/CR.A/381/1995 JUDGMENT DATED: 03/06/2024 undefined shouted for help. Uncle-in-law Ishwardardas came running and he saved her from fire and thereafter father-in-law and other family members took her to Civil Hospital at Mehsana. On the basis of complaint, other statement of the lady also came to be recorded and the offence was registered. Dying declaratiion of the lady was recorded by the Executive Magistrate and statements of other witresses were also recorded and chargesheet came to be filed on completion of offence.
4. In pursuance of the complaint lodged by the complainant with the Vijapur Police Station for the offence under sections 302 and 34 of the IPC, the investigating agency recorded statements of the witnesses, drawn panchnama of scene of offence, discovery and recovery of weapons and obtained FSL report for the purpose of proving the offence. After having found sufficient material against the respondent accused, charge-sheet came to be filed in the Court of learned JMFC, Vijapur. Trial of the offence u/s 302 of the IPC is exclusively triable by the court of Sessions. Hence, learned JMFC, Vijapur committed the offence to the court of Sessions at Vijapur in exercise of jurisdiction u/s 209 of the Code.
5. Upon committal of the case to the Sessions Court, Vijapur, learned Sessions Judge framed charge at Exh.10 against the respondent accused for the aforesaid offences. The respondent accused pleaded not guilty and claimed to be tried.
6. In order to bring home charge, the prosecution has Page 3 of 35 Downloaded on : Fri Jun 07 21:10:18 IST 2024 NEUTRAL CITATION R/CR.A/381/1995 JUDGMENT DATED: 03/06/2024 undefined examined 17 witnesses and also produced various documentary evidence before the learned trial Court, more particularly described in para 6 of the impugned judgment and order.
7. On conclusion of evidence on the part of the prosecution, the trial Court put various incriminating circumstances appearing in the evidence to the respondent accused so as to obtain explanation/answer as provided u/s 313 of the Code. In the further statement, the respondent accused denied all incriminating circumstances appearing against them as false and further stated that he is innocent and false case has been filed against them.
8. We have heard learned APP for the appellant - State and minutely examined oral and documentary evidence adduced before the learned Trial Court.
9. None remained present for the respondents accused.
10. Learned APP while assailing the impugned judgment and order, would submit that the learned Sessions Court has failed to consider the evedentiary value of the dying declaration of the deceased recorded at multiple times, which are consistent in nature. She would further submit that the learned Sessions Court instead of applying determinative evidentiary value to multiple dying declaration, resorted to contradiction and inconsistency alleged to have appeared in the multiple dying declaration, which does not go into the root of the case. She would further submit that the "dying declaration" is the last Page 4 of 35 Downloaded on : Fri Jun 07 21:10:18 IST 2024 NEUTRAL CITATION R/CR.A/381/1995 JUDGMENT DATED: 03/06/2024 undefined statement made by a person at a stage when he/she is in serious apprehension of his/her death and expects no chances of his/her survival. She would further submit that it is expected that a person will speak the truth and only the truth. She would further submit that normally in such situations the courts attach the intrinsic value of truthfulness to such statement. She would further submit that once such statement has been made voluntarily, it is reliable and is not an attempt by the deceased to cover up the truth or falsely implicate a person, then such dying declaration can safely be relied upon by the court to form the basis of conviction. She would further submit that in the present case, FIR (Exh.41) is given by the deceased, in which, she has categorically stated that her husband - accused No.1 has poured Kerosene on her and set her ablaze. So the statement at the first instance by the deceased established that she was killed by the respondents accused. She would further submit that Dr. Urmila Patel, Member of Mahila Suraksha Samiti (Exh.62) recorded the statement of the deceased, which indicates that the deceased was set at ablaze by her husband and at that time, she was hold by her in-laws. She would further submit that the dying declaration recorded by the Executive Magistrate at Exh.66 would also record the same statement. This dying declaration also records the cause of death and according to which, the deceased was set to ablaze by her husband - original accused No.1 and the original accused Nos.2 and 3 have caught hold of the deceased. So, all these versions delineated consistently from dying declaration reveals that the deceased was killed by the present respondents accused. However, the learned Sessions Court Page 5 of 35 Downloaded on : Fri Jun 07 21:10:18 IST 2024 NEUTRAL CITATION R/CR.A/381/1995 JUDGMENT DATED: 03/06/2024 undefined has committed serious mistake in acquitting the accused without appreciating these evidence on record.
10.1 Learned APP would further submit that the dying declaration was recorded multiple times and considering the consistent version of the dying declaration, it reveals that the deceased was killed by the respondents accused. She would further submit that in a case on hand, the dying declaration are found reliable and unimpeachable and yet, the learned Sessions Court has ignored truthfulness of such dying declaration on technical consideration. She would further submit that in the present case, offence u/s 302 of the IPC is made out against the respondents accused though the other prosecution witnesses did not support the case of the prosecution. The dying declaration of the deceased having sameness in facts supports the case of the prosecution and there is no doubt about the truthfulness of the dying declaration of the deceased. These dying declaration being clinching evidence, are sufficient to establish guilt of the accused beyond reasonable doubt, but have been shrug off by the learned Sessions Court, which is serious infirmities lead to absurdity in the impugned judgment and order. Learned APP would further submit that one of such dying declaration was recorded by the Executive Magistrate. She would further submit that the Executive Magistrate is the highest officer to record such declaration and therefore, sanctity of such dying declaration can also be assumed, as the Executive Magistrate is the independent officer and therefore, it is submitted that since the learned Sessions Court has brushed aside the dying declaration of the deceased, the impugned judgment and Page 6 of 35 Downloaded on : Fri Jun 07 21:10:18 IST 2024 NEUTRAL CITATION R/CR.A/381/1995 JUDGMENT DATED: 03/06/2024 undefined order is suffering from patent illegality and requires interference.
10.2 Upon such submission, learned APP Ms. Jhala requests to allow this appeal and to quash and set aside the impugned judgment and order and further to convict the accused for the charge levelled against them and appropriate punishment.
11. As stated herein above, none remained present for the respondents accused to argue out the case.
12. Having heard learned APP and reviewing the question arose is whether the prosecution has made out the case, which allows us to interfere with the impugned judgment and order. Another question arose is whether the learned APP has pointed out any patent illegality in appreciation of the evidence carried out by the learned Sessions Court, more particularly, appreciating the evidentiary value of multiple dying declaration of the deceased, which render impugned judgment and order of acquittal vulnerable.
13. The scope and ambit of the appeal against the judgment and order recording acquittal has been succinctly explained by the Hon'ble Privy Council in case of Sheo Swarup Vs. King Emperor, AIR 1934 Privy Council 227, wherein the Privy Council has explained the scope and ambit of the appeal u/s 417 of the old CrPC, which has been replaced by section 378 of the CrPC. In para 8 and 9 of the judgment, the Hon'ble Privy Council has exposed the scope of appeal against the judgment and order of acquittal, which reads as under:-
Page 7 of 35 Downloaded on : Fri Jun 07 21:10:18 IST 2024NEUTRAL CITATION R/CR.A/381/1995 JUDGMENT DATED: 03/06/2024 undefined "8. There is, in their opinion, no foundation for the view, apparently supported by the judgments of some Courts in India, that the High Court has no power or jurisdiction to reverse an order of acquittal on a matter of fact, except in cases in which the lower Court has "obstinately blundered" or has "through incompetence, stupidity or perversity" reached such "distorted conclusions as to produce a positive miscarriage of justice," or has in some other way so conducted or misconducted itself as to produce a glaring miscarriage of justice, or has been tricked by the defence so as to produce a similar result.
9.Sections 417, 418 and 423 of the Code give to the High Court full power to review at large the evidence upon which the order of acquittal was founded, and to reach the conclusion that upon that evidence the order of acquittal should be reversed. No limitation should be placed upon that power, unless it be found expressly stated in the Code. But in exercising the power conferred by the Code and before reaching its conclusions upon fact, the High Court should and will always give proper weight and consideration to such matters as (1) the views of the trial Judge as to the credibility of the witnesses; (2) the presumption of innocence in favour of the accused, a presumption certainly not weakened by the fact that he has been acquitted at his trial; (3) the right of the accused to the benefit of any doubt; and (4) the slowness of an appellate Court in disturbing a finding of fact arrived at by a Judge who had the advantage of seeing the witnesses. To state this, however, is only to say that the High Court in its conduct of the appeal should and will act in accordance with rules and principles well known and recognised in the administration of justice."Page 8 of 35 Downloaded on : Fri Jun 07 21:10:18 IST 2024
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14. In case of Ahir Raja Khima Vs. State of Saurashtra, AIR 1956, in a decision of three Judges Bench of the Hon'ble Apex Court, Hon'ble Mr. Justice Vivian Bose (as he then was) authored the majority view to approved the ratio laid down by the Privy Council in case of Sheo Swarup (supra). Doctrine of "compelling reasons" is added to scope of interference in appeal against acquittal. Relevant findings read as under:-
"1. The only question in this appeal is whether the High Court had in mind the principles we have enunciated about interference under S. 417, Criminal P. C. when it allowed the appeal filed by the State against the acquittal of the appellant. It is, in our opinion, well settled that it is not enough for the High Court to take a different view of the evidence; there must also be substantial and compelling reasons for holding that the trial Court was wrong. 'Almer Singh V. State of Punjab,' AIR 1953 SC 76 at pp. 77-78 and if the trial Court takes a reasonable view of the facts of the case, interference under S. 417 is not justifiable unless there are really, strong reasons for reversing that view, 'Surajpal Singh v. State',AIR 1952 SC 52 at p. 54."
15. At the outset, we may refer the judgment of Muralidhar v. State of Karnataka, (2014) 5 SCC 730, wherein the Hon'ble Apex Court dealing with the appeal against acquittal, established guidelines, which reads thus:-
(i) There is presumption of innocence in favour of an Page 9 of 35 Downloaded on : Fri Jun 07 21:10:18 IST 2024 NEUTRAL CITATION R/CR.A/381/1995 JUDGMENT DATED: 03/06/2024 undefined accused person and such presumption is strengthened by the order of acquittal passed in his favour by the trial court;
(ii) The accused person is entitled to the benefit of reasonable doubt when it deals with the merit of the appeal against acquittal;
(iii) Though, the powers of the appellate court in considering the appeals against acquittal are as extensive as its powers in appeals against convictions but the appellate court is generally loath in disturbing the finding of fact recorded by the trial court. It is so because the trial court had an advantage of seeing the demeanour of the witnesses. If the trial court takes a reasonable view of the facts of the case, interference by the appellate court with the judgment of acquittal is not justified. Unless, the conclusions reached by the trial court are palpably wrong or based on erroneous view of the law or if such conclusions are allowed to stand, they are likely to result in grave injustice, the reluctance on the part of the appellate court in interfering with such conclusions is fully justified; and
(iv) Merely because the appellate court on reappreciation and re-evaluation of the evidence is inclined to take a different view, interference with the judgment of acquittal is not justified if the view taken by the trial court is a possible view. The evenly balanced views of the evidence must not result in the interference by the appellate court in the judgment of the trial court."
15.1 We may also refer the judgment of Babu Sahebagouda Rudragoudar v. State of Karnataka, 2024 SCC OnLine SC 561 as to minimize the scope of interference by the learned Sessions Court for reversing the judgment of acquittal recorded by the learned trial court. The Hon'ble Apex Court has carved out four corners of the following principles for the learned Sessions Court to interfere with the judgment and Page 10 of 35 Downloaded on : Fri Jun 07 21:10:18 IST 2024 NEUTRAL CITATION R/CR.A/381/1995 JUDGMENT DATED: 03/06/2024 undefined order of acquittal recorded by the learned trial Court.
"(a) That the judgment of acquittal suffers from patent perversity;
(b) That the same is based on a misreading/omission to consider material evidence on record;
(c) That no two reasonable views are possible and only the view consistent with the guilt of the accused is possible from the evidence available on record."
15.2 In case of Mallappa v. State of Karnataka, (2024) 3 SCC 544, the Hon'ble Apex Court observed as under:-
"25. . No doubt, an order of acquittal is open to appeal and there is no quarrel about that. It is also beyond doubt that in the exercise of appellate powers, there is no inhibition on the High Court to re- appreciate or re-visit the evidence on record. However, the power of the High Court to re- appreciate the evidence is a qualified power, especially when the order under challenge is of acquittal. The first and foremost question to be asked is whether the Trial Court thoroughly appreciated the evidence on record and gave due consideration to all material pieces of evidence. The second point for consideration is whether the finding of the Trial Court is illegal or affected by an error of law or fact. If not, the third consideration is whether the view taken by Page 11 of 35 Downloaded on : Fri Jun 07 21:10:18 IST 2024 NEUTRAL CITATION R/CR.A/381/1995 JUDGMENT DATED: 03/06/2024 undefined the Trial Court is a fairly possible view. A decision of acquittal is not meant to be reversed on a mere difference of opinion. What is required is an illegality or perversity.
26. It may be noted that the possibility of two views in a criminal case is not an extraordinary phenomenon. The two-views theory has been judicially recognized by the Courts and it comes into play when the appreciation of evidence results into two equally plausible views. However, the controversy is to be resolved in favour of the accused. For, the very existence of an equally plausible view in favour of innocence of the accused is in itself a reasonable doubt in the case of the prosecution. Moreover, it reinforces the presumption of innocence. And therefore, when two views are possible, following the one in favour of innocence of the accused is the safest course of action. Furthermore, it is also settled that if the view of the Trial Court, in a case of acquittal, is a plausible view, it is not open for the High Court to convict the accused by reappreciating the evidence. If such a course is permissible, it would make it practically impossible to settle the rights and liabilities in the eyes of law.
42. Our criminal jurisprudence is essentially based on the promise that no innocent shall be condemned as guilty. All the safeguards and the jurisprudential values of criminal law, are intended to prevent any failure of justice. The principles which come into play while deciding an appeal from Page 12 of 35 Downloaded on : Fri Jun 07 21:10:18 IST 2024 NEUTRAL CITATION R/CR.A/381/1995 JUDGMENT DATED: 03/06/2024 undefined acquittal could be summarized as:
(i) Appreciation of evidence is the core element of a criminal trial and such appreciation must be comprehensive - inclusive of all evidence, oral or documentary;
(ii) Partial or selective appreciation of evidence may result in a miscarriage of justice and is in itself a ground of challenge;
(iii) If the Court, after appreciation of evidence, finds that two views are possible, the one in favour of the accused shall ordinarily be followed;
(iv) If the view of the Trial Court is a legally plausible view, mere possibility of a contrary view shall not justify the reversal of acquittal;
(v) If the appellate Court is inclined to reverse the acquittal in appeal on a re-appreciation of evidence, it must specifically address all the reasons given by the Trial Court for acquittal and must cover all the facts;
(vi) In a case of reversal from acquittal to conviction, the appellate Court must demonstrate an illegality, perversity or error of law or fact in the decision of the Trial Court."
16. It cannot go unnoticed that that in view of principles of criminal jurisprudence, presumption of innocence runs in favour of the accused unless proven guilty. This presumption continues to operate at all stages of the trial. The presumption of innocence gets established when the charge alleged against him ends in acquittal. The presumption doubles once the accused is proved innocent. A person/ prosecution, who intends to prosecute the accused for charge, in which he has been acquitted after appreciation of evidence Page 13 of 35 Downloaded on : Fri Jun 07 21:10:18 IST 2024 NEUTRAL CITATION R/CR.A/381/1995 JUDGMENT DATED: 03/06/2024 undefined on record gets on higher footings and his expected to be rebut the same in appeal.
17. If we venture into re-appreciation of the evidence keeping in mind the law laid down by the Hon'ble Apex Court in regards to interference in appeal in the judgment and order rendered by the learned Sessions Court recording acquittal, the learned Sessions Court has to find out that whether the impugned judgment and order of acquittal suffers from patent illegality or perversity. It is to be reminded that in the present case, the prosecution has alleged charge of killing the deceased against the accused. In nutshell, charge u/s 302 of the IPC has been framed against the accused. Apart from that, no other charge has been levelled against the accused. It is not the case where charge of harassment or cruelty meted out to the deceased has been levelled.
18. It is undoubted that the deceased died due to unnatural death. In this regard, there is no requirement of re-assessing the evidence. The PM report Exh.56 is sufficient to indicate that the deceased died due to unnatural death.
19. The prosecution has examined PW 1 Babubhai Ganeshbhai (Exh.27), brother of the deceased. According to his deposition, the deceased has told him about the mental harassment and cruelty being meted out to her at the hands of the respondents accused and on one night, he has received information that her sister has been subjected to set ablaze and therefore, immediately, he rushed to the Civil Hospital, Mehsana, where he asked her sister that what happened and Page 14 of 35 Downloaded on : Fri Jun 07 21:10:18 IST 2024 NEUTRAL CITATION R/CR.A/381/1995 JUDGMENT DATED: 03/06/2024 undefined in reply, her sister replied that at around 10 o'clock in the morning, when she was doing household work, her in-laws i.e. respondent Nos.2 and 3 caught hold of her and her husband accused has set her ablaze. He also deposed that at the relevant point of time, her sister was conscious and was in a fit state of mind to speak. He also deposed about the dying declaration, but he is not the eye witness to the incident. PW 2 Rameshbhai Maganbhai - uncle of the deceased (Exh.44) and PW 3 Poliben - mother of the deceased (Exh.45) have also deposed alike of the deposition made by PW 1 Babubhai. However, these three witnesses are the interested witnesses as they are near relatives of the deceased. Their deposition needs to be critically analyzed before relied upon. The important aspect to be noticed that they are not the eye witnesses.
20. The prosecution has examined PW 4 Ishwarbhai Ganeshbhai (Exh.46), who is first person who has seen the deceased after the incident. However, this witness turned hostile and did not support the case of the prosecution. Two Panch witnesses PW 5 and 6 in whose presence according to the prosecution, the spot panchnama was carried out, have also turned hostile and did not support the case of the prosecution.
21. The prosecution has examined PW 7 Vasantlal Bhagwandas at Exh.50, in which, he has deposed that he has received call from the City Police Station, Mehsana for recording the dying declaration of the deceased and therefore, he immediately rushed to the Civil Hospital at Page 15 of 35 Downloaded on : Fri Jun 07 21:10:18 IST 2024 NEUTRAL CITATION R/CR.A/381/1995 JUDGMENT DATED: 03/06/2024 undefined Mehsana and the deceased was severely burnt. He has also deposed that the doctor was present and on asking the doctor whether the deceased was in a fit state of mind to give statement, the doctor permitted him to record dying declaration. Thereafter, he has recorded the dying declaration of the deceased and also obtained thump impression of the deceased so also the endorsement of the doctor, who was present on the spot. The dying declaration which was recorded by the Executive Magistrate is produced at Exh.51 and according to this dying declaration, the deceased stated that her husband has poured kerosene on her and set her ablaze.
22. Another witness PW 10 Dr. Urmila Patel, Member of Mahila Suraksha Samiti, who has recorded the statement of the deceased at Exh.62. She has also taken the thumb impression. The significant aspect which is coming in the dying declaration is that the deceased has enroped her brother-in-law (Diar and Jeth) as well as sister-in-law (Jethani)into the incident and she has changed her version from earlier version recorded by PW 7 Vasantlal Bhagwandas.
23. Another witness PW 12 Kamlesh Kapadia was examined, who has recorded the dying declaration of the deceased (Exh.66). This witness is working in the Mamlatdar office and he has also received the worthy from the police to record the dying declaration of the deceased. He has also inquired from the doctor whether the deceased was in a fit state of mind to give statement to which, the doctor has made endorsement that she is in fit state of mind to give dying declaration.
Page 16 of 35 Downloaded on : Fri Jun 07 21:10:18 IST 2024NEUTRAL CITATION R/CR.A/381/1995 JUDGMENT DATED: 03/06/2024 undefined Thereafter, this witness has recorded the dying declaration of the deceased. The recording of dying declaration started at 12:45 pm and completed on 1:00 pm. According to this dying declaration, the deceased received burn injuries while cooking and her sari came into contact with flames of stove. In this dying declaration, she has not made any allegations against her in-laws for killing her or set her ablaze.
24. As stated earlier, the FIR was recorded by PW 13 Naranbhai - Police Officer. The FIR since is the last statement of the deceased in accordance with cause of death, it could also be treated as dying declaration, whereby, she has been subjected to set ablaze by her in-laws.
25. The prosecution has also examined PW 18 Dr. Mansangbhai Laljibhai at Exh.77. He has treated treated the deceased and he has given the endorsement that the deceased was in a fit state of mind to give her statement.
26. Under these circumstances, what appeared that the entire case of prosecution hinges upon multiple dying declaration recorded by the different persons at different interval times including one oral dying declaration to PW 1 Babubhai. Learned APP fairly submitted that the prosecution has no other submission except submitting that in multiple dying declaration, it clearly reveals that the respondents accused have killed the deceased by pouring kerosene on her and set her ablaze. The further submission was that the learned Sessions Court has committed serious error in appreciating evidentiary value of the dying declaration and Page 17 of 35 Downloaded on : Fri Jun 07 21:10:18 IST 2024 NEUTRAL CITATION R/CR.A/381/1995 JUDGMENT DATED: 03/06/2024 undefined respondent accused ignoring all these multiple dying declaration.
27. Since the entire case of prosecution hinges upon multiple dying declaration of the deceased recorded by various persons, let refer section 32(1) of the Evidence Act, which defines relevancy of statement of relevant facts by the person, who is dead or cannot be found. Section 32(1) reads as under:-
"32. Cases in which statement of relevant fact by person who is dead or cannot be found, etc. is relevant-Statements, written or verbal, of relevant facts made by a person who is dead, or who cannot be found, or who has become incapable of giving evidence, or whose attendance cannot be procured without an amount of delay or expense which, under the circumstances of the case, appears to the Court unreasonable, are themselves relevant facts in the following cases:-
(1) When it relates to cause of death. - When the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person's death comes into question."
28. "Truth", said Mathew Arnold, "sits upon the lips of a dying man". The basic philosophy of the dying declaration appears in two lines of Shakespeare's King John: "Why should I then be false, since it is true. That I must die here and live hence by truth?" [See Vikas v State (2008)2 SCC 516.] The principle underlying admissibility of dying declaration is reflected in the well-known legal maxim: " nemo moriturus praesumitur mentire" i.e. a man will not meet his Maker with a lie in his mouth. A dying man is face to face with his Maker without any motive for telling a lie. The general principle on which this species of evidence (dying declaration) is admitted, is that they are declarations made in extremity, when every motive of falsehood is silenced, the party being at the point of death and when every hope of this world is gone. This general Page 18 of 35 Downloaded on : Fri Jun 07 21:10:18 IST 2024 NEUTRAL CITATION R/CR.A/381/1995 JUDGMENT DATED: 03/06/2024 undefined principle has exception; when multiple dying declaration are treated to be inconsistent with each other, word of caution added that the dying declaration upon which the court relies needs to be corroborated by some other evidence. Quite often the court comes across multiple dying declarations, may be oral or recorded. If these dying declarations speak in the same line, they may not pose any problem; rather they afford confidence to the court to accept the dying declarations as trustworthy and dependable. However, problem arises when one or more of those dying declarations contradict the rest. The rule of prudence in such cases expects that it is better to treat the dying declarations as pieces of evidence and thereafter to seek for corroboration from the other materials on record.
29. In a well celebrated judgment of the Hon'ble Apex Court in case of Sharad Birdhichand Sarda v State of Maharashtra (1984)4 SCC 116, the principles regarding admissibility of dying declaration are embodied as under:-
"(1) Section 32 is an exception to the rule of hearsay and makes admissible the statement of a person who dies, whether the death is a homicide or a sui- cide, provided the statement relates to the cause of death, or exhibits circum- stances leading to the death. In this respect, as indicated above, the Indian Evidence Act, in view of the peculiar conditions of our society and the diverse nature and character of our people, has thought it necessary to widen the sphere of sec.
32 to avoid injustice.
Page 19 of 35 Downloaded on : Fri Jun 07 21:10:18 IST 2024NEUTRAL CITATION R/CR.A/381/1995 JUDGMENT DATED: 03/06/2024 undefined (2) The test of proximity cannot be too literally construed and practically reduced to a cut-and-dried formula of universal application so as to be confined in a straitjacket. Distance of time would depend or vary with the circumstances of each case. For instance, where death is a logical culmination of a continuous drama long in process and is, as it were, a finale of the story, the statement regarding each step directly connected with the end of the drama would be admissible because the entire statement would have to be read as an organic whole and not torn from the context. Sometimes statements relevant to or furnishing an immediate motive may also be admissible as being a part of the transaction of death. It is manifest that all these statements come to light only after the death of the deceased who speaks from death. For instance, where the death takes place within a very short time of the marriage or the distance of time is not spread over more than 3-4 months the statement may be admissible under sec. 32.
(3) The second part of clause (1) of sec. 32 is yet another exception to the rule that in criminal law the evidence of a person who was not being subjected to or given an opportunity of being cross-examined by the accused, would be val- ueless because the place of cross-examination is taken by the solemnity and sanctity of oath for the simple reason that a person on the verge of death is not likely to make a false statement unless there is strong evidence to show Page 20 of 35 Downloaded on : Fri Jun 07 21:10:18 IST 2024 NEUTRAL CITATION R/CR.A/381/1995 JUDGMENT DATED: 03/06/2024 undefined that the statement was secured either by prompting or tutoring.
(4) It may be important to note that sec. 32 does not speak of homicide alone but includes suicide also, hence all the circumstances which may be relevant to prove a case of homicide would be equally relevant to prove a case of suicide.
(5) Where the main evidence consists of statements and letters written by the deceased which are directly connected with or related to her death and which reveal a tell-tale story, the said statement would clearly fall within the four corners of sec. 32 and, therefore, admissible. The distance of time alone in such cases would not make the statement irrelevant." (A three-Judge Bench decision)."
30. With profit, we may refer the judgment of the Hon'ble Apex Court in case of Kamla v. State of Punjab, (1993) 1 SCC 1, the Hon'ble Apex Court in para 5 has held as under:-
"5. It is well settled that dying declaration can form the sole basis of conviction provided that it is free from infirmities and satisfies various tests (vide Khushal Rao v. State of Bombay [AIR 1958 SC 22 :
1958 SCR 552 : 1958 Cri LJ 106] . The ratio laid down in this case has been referred to in a number of subsequent cases with approval. It is also settled in all those cases that the statement should be consistent throughout if the deceased had several opportunities of making such dying declarations, that Page 21 of 35 Downloaded on : Fri Jun 07 21:10:18 IST 2024 NEUTRAL CITATION R/CR.A/381/1995 JUDGMENT DATED: 03/06/2024 undefined is to say, if there are more than one dying declaration, they should be consistent. If a dying declaration is found to be voluntary, reliable and made in fit mental condition, it can be relied upon without even any corroboration. In a case where there are more than one dying declaration if some inconsistencies are noticed between one and the other, the court has to examine the nature of the inconsistencies namely whether they are material or not. In scrutinising the contents of various dying declarations, in such a situation, the court has to examine the same in the light of the various surrounding facts and circumstances."
30.1 In case of Lakhan v. State of M.P.,(2010) 8 SCC 514, the Hon'ble Apex Court has held as under:-
"21. In case there are multiple dying declarations and there are inconsistencies between them, generally, the dying declaration recorded by the higher officer like a Magistrate can be relied upon, provided that there is no circumstance giving rise to any suspicion about its truthfulness. In case there are circumstances wherein the declaration had been made, not voluntarily and even otherwise, it is not supported by the other evidence, the court has to scrutinize the facts of an individual case very carefully and take a decision as to which of the declarations is worth reliance."Page 22 of 35 Downloaded on : Fri Jun 07 21:10:18 IST 2024
NEUTRAL CITATION R/CR.A/381/1995 JUDGMENT DATED: 03/06/2024 undefined 30.2 Another judgment which can be relied upon is in case of Ashabai v. State of Maharashtra, (2013) 2 SCC 224, the Hon'ble Apex Court held as under:-
"15. When there are multiple dying declarations, each dying declaration has to be separately assessed and evaluated and assessed independently on its own merit as to its evidentiary value and one cannot be rejected because of certain variations in the other."
30.3 In Uttam v. State of Maharashtra, (2022) 8 SCC 576, the Hon'ble Apex Court has held as under:-
"15. In cases involving multiple dying declarations made by the deceased, the question that arises for consideration is as to which of the said dying declarations ought to be believed by the court and what would be the guiding factors for arriving at a just and lawful conclusion. The problem becomes all the more knotty when the dying declarations made by the deceased are found to be contradictory. Faced with such a situation, the court would be expected to carefully scrutinise the evidence to find out as to which of the dying declarations can be corroborated by other material evidence produced by the prosecution. Of equal significance is the condition of the deceased at the relevant point in time, the medical evidence brought on record that would Page 23 of 35 Downloaded on : Fri Jun 07 21:10:18 IST 2024 NEUTRAL CITATION R/CR.A/381/1995 JUDGMENT DATED: 03/06/2024 undefined indicate the physical and mental fitness of the deceased, the scope of the close relatives/family members having influenced/tutored the deceased and all the other attendant circumstances that would help the court in exercise of its discretion."
30.4 After surveying above judgments, in case of Abhishek Sharma Vs. State (Govt of NCT and Delhi) reported in AIR 2023 SC 5271, wherein the Hon'ble Apex Court in regards to reliability of the multiple dying declaration, enumerated the principles, which reads as under:-
"1. The primary requirement for all dying ot declarations is that they should be voluntary d and reliable and that such statements should be made in a fit state of mind;
2. All dying declarations should be consis- e- tent. In other words, inconsistencies between such statements should be 'material' for its th credibility to be shaken;
3. When inconsistencies are found between various dying declarations, other evidence available on record may be considered for the purposes of corroboration of the contents of dying declarations.
4. The statement treated as a dying dec- ed laration must be interpreted in light of sur- rt rounding facts and circumstances.Page 24 of 35 Downloaded on : Fri Jun 07 21:10:18 IST 2024
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5. Each declaration must be scrutinized on its own merits. The court has to examine ed upon which of the statements reliance can i- be placed in order for the case to proceed further.
6. When there are inconsistencies, the R statement that has been recorded by a Magistrate or like higher officer can be relied on, subject to the indispensable qualities of truthfulness and being free of suspicion.
7. In the presence of inconsistencies, the medical fitness of the person making such 2 declaration, at the relevant time, assumes importance along with other factors such as the possibility of tutoring by relatives, etc."
30.5 Para 11 of the said judgment is also relevant, which reads as under:-
"11. This Court in Uttam(supra) followed the principle as held in Khushal Rao v. State of Bombay, AIR 1958 SC 22 (3-Judge Bench) 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 fact stated, had not been impaired at the time he was making the statement, by circumstances beyond his control; that the statement Page 25 of 35 Downloaded on : Fri Jun 07 21:10:18 IST 2024 NEUTRAL CITATION R/CR.A/381/1995 JUDGMENT DATED: 03/06/2024 undefined 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."
31. Some of the judgments can also be noticed where incident of burn injuries by the deceased was considered in regards to admissibility of dying declaration. In case of Chacko Vs. State of Kerala reported in 2003(1) SCC 112, the Hon'ble Apex Court declined to accept the dying declaration made by a person of 70 years of age having sustained 80% burn injuries. Therein, the declaration was recorded 8-9 hours after burns, giving minute details as to motive and manner.
31.1 In P.V. Radhakrishna v. State of Karnataka, (2003) 6 SCC 443, it was observed that there cannot be any hard and fast rule, lending itself to uniform application on the question whether the percentage of burns suffered is a determinative factor to affect the credibility of the dying declaration. The same would depend on the nature of the burns, the body parts affected, and the effect thereof on mental faculties, as well as other factors.
31.2 In Surinder Kumar v. State of Haryana, (2011) 10 SCC 173, it was observed by the Hon'ble Apex Court that the dying declaration made by a person having 95-97% burn injuries was not accepted given that at the time of making the declaration, the deceased was under the influence of Fortwin Page 26 of 35 Downloaded on : Fri Jun 07 21:10:18 IST 2024 NEUTRAL CITATION R/CR.A/381/1995 JUDGMENT DATED: 03/06/2024 undefined and Pethidine injections, because of which she could not have had normal alertness.
32. Before we appreciate multiple dying declaration given by the deceased, medical certificate at Exh.52 is to be noticed,which is issued by Dr. Rajeshkumar Bhailalbhai, Medical Officer of General Hospital, Mehsana. He has recorded following in the certificate:-
"This is to certify that Shri/Smt./Kum./Bhanuben Kanubhai Parmar aged about 22years of Dabhala Ta. Vijapur on (12/12) / 93 at 11:40 R.M. by without police yadi without police Yadi on as From following injuries. Thave examined her & found following injuries."
C/o Burns today at 10:00 A.M. she had superficial to deep burns present over face whole with sinzing by scalp hair. Burns over anterior & pertecularly whole neck, whoke back, front of chest, whole abdonmen, both upperlimb, except skin of sight palm uitaced Both lower dimbs with extent qenitals except both sole of feat intact skin.She was admitted in female surgical ward. According to full time surgeon Dr.S.J.Pandit. She had about 95-100% I & II burns whole over body. During treatment she was expired on (16/12) / 93 at 9:25 A.Μ."
33. From the medical case papers of the deceased produced at at Exh.54, the deceased stated that her husband poured kerosene and set her ablaze; she was under the treatment of various medicines. She has 95-100% burn injuries being Page 27 of 35 Downloaded on : Fri Jun 07 21:10:18 IST 2024 NEUTRAL CITATION R/CR.A/381/1995 JUDGMENT DATED: 03/06/2024 undefined superficial to deep burn and under the treatment of plethora medicines like Detona, Pilox and other medicines.
34. If, we reanalysis the evidence on record, firstly the deceased has given the history before Dr. RB Shah and thereafter, before Dr. Swati Pandit, which could also be treated as dying declaration. FIR was recorded by PW 13 Naranbhai. This FIR was given by the deceased and this FIR can also be treated as dying declaration as it is revealed her cause of death. One Mr. Kamleshbhai Kapadia, Executive Magistrate has also recorded dying declaration of the deceased and thereafter, on next date, another Executive Magistrate Vasantlal Bhagwandas has recorded the dying declaration of the deceased. In the FIR as well as in the history given before the doctor, the deceased as alleged that her husband has poured kerosene upon her and set her ablaze. Then, in another history recorded by the prosecution witness Dr. Swati, wherein the deceased told that she has been caught to fire accidentally. This statement was recorded immediately after the history given to Dr. Shah as well as FIR recorded by PW 13 Naranbhai.
35. Then another dying declaration was recorded by the Executive Magistrate Kamlesh Kapadia on that day. In this dying declaration, she again stated that she has been caught to fire as her saree came in contact with flames of stove. Then on next day, another Executive Magistrate Mr. Vasantlal Bhagwandas has recorded dying declaration of the deceased where she alleged that her husband has poured kerosene on her and set her ablaze.
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36. The learned Sessions Court in para 21 of the impugned judgment and order has appreciated the evidence of the multiple dying declaration, which reads as under (translated from vernacular language into English):-
"(21) As Bhanumatiben Ramanbhai Gangaram had lodged the complaint and thereafter she died, the complaint shall be considered as DD. She had mentioned in the said complaint that "her husband poured kerosene on her body and lighted the matchstick, thus she sustained burns." Thereafter, the deceased Bhanumatiben has stated in her history before the doctor that "her husband poured kerosene on her body and burnt her." Thereafter, the deceased Bhanumatiben had given her case history before Dr.Swatiben, who did her treatment in the burns ward in the hospital, wherein, she stated that "she sustained burns due to accident." Thereafter, she has given DD before Mr.Kamleshkumar Kapadiya, Executive Magistrate, wherein, she has stated that "when she tried to collect a pot, her saree caught fire in burning primus and thereby she sustained burns." Thereafter, she has given DD before Mafatlal Bhagvandas, wherein, she has stated that "all the persons - my husband namely, Kanubhai, mother in law namely, Laxmiben and father in law namely, Mafatlal Parmar, etc. altogether had confined me behind our residence.
Thereafter, my said husband namely, Kanubhai Mafatlal Parmar brought kerosene carboy, poured it Page 29 of 35 Downloaded on : Fri Jun 07 21:10:18 IST 2024 NEUTRAL CITATION R/CR.A/381/1995 JUDGMENT DATED: 03/06/2024 undefined on me and lighted the matchstick." Thereafter, deceased Bhanumatiben has stated during her DD given before Dr.Urmilaben on the same day on 13/12/2003 that "My mother in law namely, Laxmiben and father in law namely, Mafatlal and others had caught held me, thereafter my husband namely, Kanubhai poured kerosene on me and lighted the matchstick." Thereafter, on 14/12/2003 the investigating officer recorded further statement of said deceased Bhanumatiben, wherein, she stated that "My mother in law namely, Laxmiben and father in law namely, Mafatlal and others caught held me, thereafter my husband namely, Kanubhai poured kerosene on me and threw lighted matchstick on me." Thus, DD given by deceased is not consistent and contradictory. Therefore, by relying upon such DD, the punishment could not be imposed to the accused. Deceased Bhanumatiben has lodged the complaint against her husband only. Also, in the history given for the first time before the doctor, she has mentioned the name of her husband only. Thereafter, during her history given before another doctor, she has stated that she sustained burns due to accident. Thereafter, during her DD given before Mr.Kapadiya, she has stated that "she sustained burns due to primus." In all the said DD, names of her mother in law and father in law are not mentioned. But, during her DD taken before Mr.Mafatlal Bhagavandas, Executive Magistrate, she has stated that "her mother in law and father in law had confined her in the residence."
Page 30 of 35 Downloaded on : Fri Jun 07 21:10:18 IST 2024NEUTRAL CITATION R/CR.A/381/1995 JUDGMENT DATED: 03/06/2024 undefined Whereas, during her DD before Dr.Urmilaben, she states that "her mother in law and father in law had caught held her." Thereafter, during her further statement recorded by the investigating officer also, she has stated that "her mother in law and father in law had caught held her, thereafter, her husband poured kerosene and lighted the matchstick." Thus, there are many contradictions in the statements given by said deceased Bhanumatiben and they are not consistent with each-other. Therefore, such DD cannot be relied upon. None of the witnesses mentioned in the complaint are eye witness to the incident. The said case of the Prosecution is only based on DD. The facts of DD are not consistent with each-other and has many contradictions. Therefore, by relying upon said DD, punishment cannot be imposed to the accused. If the punishment is to be imposed by only relying upon DD, upon taking into consideration other circumstances, minute examination of contentions of DD should be done and all necessary tests must be done on it. If there are more than one DD, there must be consistency with important details. When DD is consistent, the punishment cannot be imposed to the accused by only relying upon one setence. Looking to DD given by deceased Bhanumatiben, the fact is clearly proved that when she had given said DD, she must be in unstable condition. Under the circumstances, it is very much insecure to only rely upon DD and impose punishment."
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37. What could be visualized from the findings and analysis of the evidence of the dying declaration by the learned Sessions Court that in each dying declaration, the fact is found at variance and to be inconsistent from each other. In one dying declaration, she stated that she has accidentally received burn injuries and in another dying declaration, she stated that her husband has poured kerosene on her and set her ablaze. In another dying declaration, she told that her in- laws have caught hold of her and then, her husband has set her ablaze. In a further statement recorded by the investigating officer dated 14.12.1993, she stated that when she was at the backyard of her house, her in-laws have caught hold of her and then, her husband has set her ablaze.
38. Thus, it appears that all the statements / dying declaration of the deceased, facts stated are inconsistent and does not inspire confidence. In the FIR, she made allegation only against her husband. Even, in the first history recorded by the doctor, she has levelled allegation only against her husband and on next date, she has given history to the doctor that she came in contact with flames of stove accidentally. Later on, name of in-laws are included in all subsequent dying declaration. It is undisputed that the prosecution has no other evidence to cover up the allegations except relying upon multiple dying declaration. Though, PW 1 Babubhai deposed that oral dying declaration is made by the deceased before him and other near relatives, no truthful evidence comes to back such dying declaration. The dying declaration are found to be inconsistent with each other. They contradict each other.
Page 32 of 35 Downloaded on : Fri Jun 07 21:10:18 IST 2024NEUTRAL CITATION R/CR.A/381/1995 JUDGMENT DATED: 03/06/2024 undefined 38.1 To be noticed that the deceased was under the treatment of medicine; she has suffered 95-100% burn injuries superficial to deep burn and all over the body. The prosecution has failed to produce any other evidence proving that the deceased was in a fit state of mind to give her statement. Percentage of burn injuries are not determinative factors to ignore the dying declaration, but the prosecution, who intends conviction of the accused in an acquittal appeal is required to produce cogent and convincing evidence that the deceased was in a position to spew her last statement, in spite of having 95-100% burn injuries. Superficial bone deep and spread all over the body including face.
39. It could also be noticed that during the investigation, applications were produced at Exhs.42 and 43, which indicates that applications were made by the complainant Vijay Makwana that the dying declaration of the deceased was recorded under the threat and coercion and therefore, fresh dying declaration may be recorded. This application indicates that the complainant has also played vital role to ensure that the case against the accused are proved and the dying declaration was recorded in such a way that it could ensure conviction.
40. The above inconsistencies cast doubt on the credibility of alleged last statement of the deceased. The other evidence on record does not support the case of the prosecution and the surrounding circumstances as well as medical conditions of the deceased did prove against the case of the prosecution. It Page 33 of 35 Downloaded on : Fri Jun 07 21:10:18 IST 2024 NEUTRAL CITATION R/CR.A/381/1995 JUDGMENT DATED: 03/06/2024 undefined is undisputed that the deceased was under the treatment of medicines having 95-100% burn injuries, superficial to bone deep. Burn injuries were also on vital part of body including face, neck etc, which leads to believe that deceased was not in a position to speak. To overcome this aspect, prosecution was required to produce clinching evidence, but it has failed.
41. The prosecution has heavily relied upon the dying declaration at Exh.51. Though said dying declaration was recorded in presence of the doctor, but it was second dying declaration in que and was recorded one day after the incident took place. On previous day, the deceased has given four dying declaration and one was them was in presence of Executive Magistrate, which is at Exh.66. Though, it does not contain signature and endorsement of the Medical Officer, but it is recorded by the Executive Magistrate, where the deceased stated that she received burn injuries while cooking and her sari came into contact with flames of stove. Thus, there are inconsistencies in the dying declaration with each other. Thus, considering the inconsistencies of the dying declaration and evidentiary value of each dying declaration, which are inconsistent in nature, the case of the prosecution has paralyzed. None of the dying declaration got corroborated by any other evidence. The dying declaration since are at odds with each other and the facts of each dying declaration are at variance with each other and also the different facts one after another added in the dying declaration would lose the evidentiary value of the dying declaration. Learned APP could not point out any corroborative evidence in all the dying declaration. Under the Page 34 of 35 Downloaded on : Fri Jun 07 21:10:18 IST 2024 NEUTRAL CITATION R/CR.A/381/1995 JUDGMENT DATED: 03/06/2024 undefined limitation of scope of interference as stated supra in the impugned judgment, no patent illegality or perversity is found. Under these circumstances, we do not find any reason to interfere with the impugned judgment and order.
42. In the result, present appeal qua respondent accused Nos.1 and 2 fails and stands rejected. Qua accused No.3 Mafatlal Parmar, the appeal stood abated. The impugned judgment and order of acquittal dated 31.12.1994 passed by the learned Addl. Sessions Judge, Mehsana in Sessions Case No.103 of 1994 is hereby approved. Bail and bond stands discharged. Muddamal, if not destroyed, is directed to be destroyed forthwith.
43. R & P to be sent back to the concerned court immediately.
(SANDEEP N. BHATT,J) (J. C. DOSHI,J) SHEKHAR P. BARVE Page 35 of 35 Downloaded on : Fri Jun 07 21:10:18 IST 2024