Gujarat High Court
State Of Gujarat vs Manohar @ Manu Chanchaldas Sindhi & 5 on 8 December, 2017
Author: Abhilasha Kumari
Bench: Abhilasha Kumari, B.N. Karia
R/CR.A/764/1994 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL APPEAL NO. 764 of 1994
FOR APPROVAL AND SIGNATURE:
HONOURABLE SMT. JUSTICE ABHILASHA KUMARI
and
HONOURABLE MR.JUSTICE B.N. KARIA
==========================================================
1 Whether Reporters of Local Papers may be allowed Yes to see the judgment ?
2 To be referred to the Reporter or not ? Yes 3 Whether their Lordships wish to see the fair copy of No the judgment ?
4 Whether this case involves a substantial question of No law as to the interpretation of the Constitution of India or any order made thereunder ? ========================================================== STATE OF GUJARAT....Appellant Versus MANOHAR @ MANU CHANCHALDAS SINDHI & 5 .... Respondents ========================================================== Appearance:
MS JIRGA D JHAVERI, ADDITIONAL PUBLIC PROSECUTOR for the Appellant MR J M PANCHAL, ADVOCATE, MR K J PANCHAL, ADVOCATE for the Respondents ========================================================== CORAM: HONOURABLE SMT. JUSTICE ABHILASHA KUMARI and HONOURABLE MR.JUSTICE B.N. KARIA Date : 08/12/2017 C.A.V. JUDGMENT (PER : HONOURABLE SMT. JUSTICE ABHILASHA KUMARI) Page 1 of 64 HC-NIC Page 1 of 64 Created On Fri Dec 08 23:22:50 IST 2017 R/CR.A/764/1994 CAV JUDGMENT
1. The State of Gujarat has preferred the present appeal assailing the judgment and order dated 11.04.1994, passed by the City Sessions Court, Ahmedabad, in Sessions Case No.292/1992, whereby all six respondents, original accused, have been acquitted of the Charge under Sections 302, 34, 395 and 397 of the Indian Penal Code, 1860 ("the IPC"), by giving them the benefit of doubt.
2. The case of the prosecution is to the effect that Nitaben (the deceased), wife of the complainant Premchand Maganlal, used to stay at the address given in the complaint with her husband and children. The deceased had family relations with respondent accused No.1, Manohar alias Manu Chanchaldas Sindhi, for a long period of time. She frequently visited his house and respondent No.1 used to visit her home. As per the case of the prosecution on 24.04.1992, at about 9:00 PM, respondent No.1 came to the house of the deceased and told her to come to his house that day. The deceased went to the house of respondent No.1, situated at GWard, Page 2 of 64 HC-NIC Page 2 of 64 Created On Fri Dec 08 23:22:50 IST 2017 R/CR.A/764/1994 CAV JUDGMENT Kubernagar at about 10:00 PM, in an autorickshaw. Respondent No.1, his brothers, namely, Dhanraj alias Dhanu Chanchaldas Sindhi (respondent accused No.2), Meghraj alias Megho Chanchaldas Sindhi (respondent accused No.3), Anita Dharmraj Sindhi (respondent accused No.4 -
wife of respondent No.2), Babita alias Mamta Meghraj Sindhi (respondent accused No.5 wife of respondent No.3) and Pushpaben Chanchaldas Sindhi (respondent accused No.6 sister of respondents Nos.1 to 3), were present there. Respondent No.1 and his brothers started demanding money from the deceased, who stated that she had no money. Respondent No.1 then told her to sell her ornaments and give them the money but the deceased refused to sell her ornaments. Therefore, respondents Nos.1 to 3, their sister respondent No.6, along with respondents Nos.4 and 5, colluded together and started giving kick and fist blows to the deceased. Respondents Nos.1 to 3 also started beating the deceased with sticks. The deceased began to shout but the respondents covered her Page 3 of 64 HC-NIC Page 3 of 64 Created On Fri Dec 08 23:22:50 IST 2017 R/CR.A/764/1994 CAV JUDGMENT mouth. Respondent No.6 brought a can of kerosene and poured it over the deceased and respondent No.3 lit the match and set the deceased ablaze. When the clothes of the deceased caught fire and the deceased started burning, the respondents receded to a distance. Taking advantage of this, the deceased ran out of the house of the respondents and started shouting for help. People gathered upon hearing her shouts but none tried to save her or extinguish the flames. The deceased saw a heap of sand and extinguished the flames by rolling herself on it. She then took an autorickshaw and went to the Police Station. The arms, legs, face, back and chest of the deceased had got burnt. Police Sub Inspector Mr.N.C.Oza (PW7) was on duty at the Sardarnagar Police Station during the night between 24.04.1992 and 25.04.1992, when the deceased came to the Police Station at 23:00 Hrs. in a burnt condition. The Police took her in a mobile van to the Civil Hospital for treatment. As her Dying Declaration was to be recorded, the said Police Officer took the opinion of the Doctor Page 4 of 64 HC-NIC Page 4 of 64 Created On Fri Dec 08 23:22:50 IST 2017 R/CR.A/764/1994 CAV JUDGMENT and sent a Note (Yaadi) to the Executive Magistrate, who came and recorded the Dying Declaration of the deceased. As the deceased was conscious, PW7 recorded her complaint. He could not take the signature of the deceased on the said complaint as both her hands were bandaged. A note was made to this effect at the places where her signatures were required. Thereafter, PW7 sent his report to the Police Station Officer to record the offence. Nitaben died on 30.04.1992 at 21:30 Hrs. PW7 then visited the Civil Hospital and the Inquest Panchnama was drawn in the presence of two Panch Witnesses. On 25.04.1992, at 00:45 Hrs., the investigation was taken over by Mr.D.V.Pandey (PW8). The clothes worn by the deceased at the time of the incident were taken into custody and several Muddamal articles were collected from the scene of offence. The statements of witnesses were recorded and experts from the Forensic Science Laboratory (FSL) visited the scene of offence and prepared a Panchnama. A sample of mud, soaked with kerosene, was taken from the back of Page 5 of 64 HC-NIC Page 5 of 64 Created On Fri Dec 08 23:22:50 IST 2017 R/CR.A/764/1994 CAV JUDGMENT the house of the respondents. A `Kapaas' brand matchbox, a half burnt matchstick and a half burnt slipper were recovered from another street. Respondents Nos.4, 5 and 6 were arrested on 25.04.1992 and respondents Nos.1, 2 and 3 were taken into custody on 26.04.1992. All the Muddamal articles were sent to the FSL.
3. As the prosecution had gathered sufficient evidence against the respondents, a Chargesheet was filed in the Court of the learned Metropolitan Magistrate, Court No.17, Ahmedabad, for the offence under Section 302 of the IPC. The offences with which the respondents were charged were triable only by a Court of Sessions, the learned Magistrate committed the case to the Sessions Court on 10.08.1992. The Charge against the respondents was framed on 17.06.1993. The respondents denied their guilt and claimed to be tried. Accordingly, the case was put to trial.
4. In support of its case, the prosecution examined nine witnesses and produced documentary Page 6 of 64 HC-NIC Page 6 of 64 Created On Fri Dec 08 23:22:50 IST 2017 R/CR.A/764/1994 CAV JUDGMENT evidence. The statements of the respondents under Section 313 of the Code of Criminal Procedure, 1973 ("the Code") were recorded. The response of the respondents was that of denial. They added that they were innocent and had been falsely implicated.
5. After framing the points for determination and appreciating and examining the oral and documentary evidence on record, the Trial Court, by the impugned judgment and order, found that the prosecution has failed to prove the guilt of the respondents beyond reasonable doubt. The Trial Court found several contradictions and discrepancies in the Dying Declarations, which have been minutely discussed in the judgment. On the basis of the reasons recorded in the judgment, the learned Sessions Judge acquitted the respondents by giving them the benefit of doubt.
6. Ms.Jirga D. Jhaveri, learned Additional Public Prosecutor, has submitted that the impugned judgment and order of acquittal is contrary to Page 7 of 64 HC-NIC Page 7 of 64 Created On Fri Dec 08 23:22:50 IST 2017 R/CR.A/764/1994 CAV JUDGMENT law, facts and the evidence on record and hence, deserves to be quashed and set aside. That the learned Judge has failed to appreciate and consider that the deceased, herself, went to the Police Station and informed the Police about the incident. She was straightaway taken to the Civil Hospital in a mobile van, where her complaint was recorded. She was conscious at the time, as has been endorsed by the Doctor. The Executive Magistrate was informed and the Dying Declaration of the deceased was recorded. The deceased has specifically named all the accused persons in her complaint as well as in the Dying Declaration. The FIR has been proved by the Investigating Officer who has recorded the complaint. Hence, the version of the complainant ought to have been believed by the learned Judge.
7. That, in the Dying Declaration as well, the deceased has named all the accused persons and narrated the entire sequence of events regarding the incident. The deceased was conscious when she gave the complaint and when the Dying Page 8 of 64 HC-NIC Page 8 of 64 Created On Fri Dec 08 23:22:50 IST 2017 R/CR.A/764/1994 CAV JUDGMENT Declaration was recorded by the Executive Magistrate. The incident took place on 24.04.1992 and the deceased died six days later, on 30.04.1992.
8. That the narration of the victim is corroborated by the postmortem report. As per the Panchnama, the place of incident is the house of the accused. There is no contradiction between the Dying Declaration and the complaint. Moreover, the deceased also gave an oral Dying Declaration before her husband. Therefore, in the face of such evidence, the learned Judge ought to have given due weightage to the case of the prosecution and convicted the accused for the offences with which they are charged.
9. That, in the present case, there are two Dying Declarations apart from the oral Dying Declaration before the husband of the deceased. There may be certain omissions and inconsistencies in the said Dying Declarations but this does not mean that all of them get vitiated in entirety.
Page 9 of 64 HC-NIC Page 9 of 64 Created On Fri Dec 08 23:22:50 IST 2017 R/CR.A/764/1994 CAV JUDGMENT In support of the above submission, reliance is placed by the learned Additional Public Prosecutor upon a judgment of the Supreme Court in Shudhakar v. State of Madhya Pradesh - (2012)7 SCC 569.
10. Learned Additional Public Prosecutor has further submitted that as per the case of the prosecution, the incident occurred in, or outside, the house of the respondents. However, in their statements under Section 313, the respondents have merely denied the incident and have not given any reasonable explanation.
11. In light of the above submissions, learned Additional Public Prosecutor has urged the Court to accept the appeal and set aside the judgment and order under challenge
12. Opposing the submissions advanced by the learned Additional Public Prosecutor, Mr.J.M.Panchal, learned counsel for the respondents has submitted that the case rests upon circumstantial evidence as there are no eye witnesses. The prosecution has relied upon two Page 10 of 64 HC-NIC Page 10 of 64 Created On Fri Dec 08 23:22:50 IST 2017 R/CR.A/764/1994 CAV JUDGMENT Dying Declarations, namely, the complaint (Ex.42) and the Dying Declaration recorded by the Executive Magistrate (Ex.37). Reliance has also been placed by the prosecution on the oral Dying Declaration purported to have been given by the deceased to her husband. These three pieces of evidence are crucial to the case of the prosecution but all three suffer from material contradictions, making them unreliable and untrustworthy.
13. It is submitted that there is no dispute regarding the legal position that if a Dying Declaration is found to be reliable, trustworthy and truthful, it can even form the basis of the conviction of the accused. At the same time, the legal position is also clear that the Dying Declaration is required to be put to minute and close scrutiny before it can be believed as a sole piece of evidence to implicate the accused. Hence, the Dying Declarations on record are required to be put to minute scrutiny with a "microscopic eye".
Page 11 of 64 HC-NIC Page 11 of 64 Created On Fri Dec 08 23:22:50 IST 2017 R/CR.A/764/1994 CAV JUDGMENT In this regard, learned counsel for the respondents has placed reliance on the very same judgment cited by the learned Additional Public Prosecutor, in the case of Shudhakar v. State of Madhya Pradesh (supra).
14. Elaborating further, learned counsel for the respondents submits that the basic requirement of a Dying Declaration is that it should be truthful. If there are more than one Dying Declarations, they should be consistent in all material aspects, therefore, the necessity of scrutiny with a microscopic eye has been felt by the Supreme Court in the above judgment. On one hand, it can be said that a dying person would not lie, but it is also true that when the Dying Declaration is being recorded, the accused would not be present. Dying Declarations are not recorded on oath and the victim is not available for crossexamination. Under the circumstances, a minute scrutiny of a Dying Declaration is required to be made. In the present case, the two Dying Declarations in the form of the complaint (Ex.42) and the Dying Declaration Page 12 of 64 HC-NIC Page 12 of 64 Created On Fri Dec 08 23:22:50 IST 2017 R/CR.A/764/1994 CAV JUDGMENT recorded by the Executive Magistrate (Ex.37) and the oral Dying Declaration stated to have been given by the deceased to her husband, are totally inconsistent with each other. In fact, they are so mutually contradictory that they raise grave doubts.
15. That, both the deceased and her husband PW1, have suppressed the fact that the deceased had divorced her husband (PW1) and married respondent No.1. She had later divorced respondent No.1 and remarried PW1. Documents proving these events have been exhibited and are on record. The deceased has stated in the complaint that she had family relations with respondent No.1 but has failed to disclose that she had married him after divorcing her husband. She then divorced him to remarry her husband. Such suppression of facts diminishes the truthfulness and credibility of the deceased and PW1. That it appears from the Dying Declaration that the Executive Magistrate asked the deceased regarding her relationship with respondent No.1, to which she answered that he was the brother Page 13 of 64 HC-NIC Page 13 of 64 Created On Fri Dec 08 23:22:50 IST 2017 R/CR.A/764/1994 CAV JUDGMENT ("Dharam No Bhai") of her husband. This reply is in contradiction to her statement in the complaint where she does not refer to respondent No.1 in this manner but states that she had family relations with him.
16. That, the deceased has falsely roped in the entire family of the respondents, including three ladies, in a serious case of murder. She was playing with the lives of six persons and in that context, her own conduct and character deserves to be considered. There are documents on record that throw light upon this aspect. Not only had the deceased divorced her husband and married respondent No.1, whom she later divorced and remarried her husband, but she was in the habit of luring and entrapping men to exhort money from them. A complaint was filed by one Kanaiyalal in this regard. There are photographs and newspaper articles to this effect at Exs.26 and 27. It is submitted by learned counsel for the respondents that normally, he would not refer to the character of the deceased unless it was imperative to prove that she was not a Page 14 of 64 HC-NIC Page 14 of 64 Created On Fri Dec 08 23:22:50 IST 2017 R/CR.A/764/1994 CAV JUDGMENT truthful person even in her lifetime, therefore, no credence can be attached to the Dying Declarations given by her.
17. It is further submitted that the Dying Declarations are falsified by the evidence adduced by the prosecution itself. Several inconsistencies, contradictions and discrepancies emerging from the case of the prosecution have been pointed out by the learned counsel which, according to him, demolish it completely. The basic infirmities pointed out by him would be referred to later in the judgment.
18. It is next submitted that in the Dying Declaration, the place of the offence has been changed. The Panchnama recorded by the FSL Expert states that traces of kerosene, a match box and a half burnt matchstick were found in the lane outside the house of the respondents, but no signs of kerosene, blackening of walls or burning were to be found inside the house, as stated by the deceased in the complaint. In the said complaint, the deceased has narrated that Page 15 of 64 HC-NIC Page 15 of 64 Created On Fri Dec 08 23:22:50 IST 2017 R/CR.A/764/1994 CAV JUDGMENT respondent No.6 Pushpaben poured kerosene upon her and respondent No.3 Meghraj set her ablaze, whereas in the Dying Declaration she has stated that respondent No.1 asked his sister respondent No.6 to bring kerosene, respondent No.2 Dhanraj poured the kerosene on her and respondent No.3 Meghraj took out a matchbox from his pocket and lit it.
19. That, there is a material contradiction regarding the place of incident. In the complaint, the deceased states that she was set ablaze inside the house of respondent No.1, whereas, in reply to a question put by the Executive Magistrate, she states that the incident took place outside the backdoor of the house of respondent No.1. In reply to a question by the Executive Magistrate as to who had burnt her, the deceased took the names of all six respondents and roped in the entire family. However, she has given a different version in the complaint.
20. That as per the evidence of PW3 Sonu Rameshlal Page 16 of 64 HC-NIC Page 16 of 64 Created On Fri Dec 08 23:22:50 IST 2017 R/CR.A/764/1994 CAV JUDGMENT Hirani, he saw the deceased coming to the house of the respondents carrying a polythene bag in her hand. It is more than possible that the deceased had herself come with kerosene in the polythene bag. Pieces of the polythene bag were found outside the house of the respondents, which smelt of kerosene. No such bag was found in the house of the respondents. PW3 has not been contradicted or declared hostile, therefore, his evidence ought to be relied upon.
21. That one of the Panch Witnesses of the Panchnama of the Scene of Offence has turned hostile. The other Panch Witness was not examined by the prosecution and the evidence was closed. The defence gave an application, after which the second Panch Witness was examined.
22. Learned counsel for the respondents has submitted that the conflicting versions given by the deceased in the complaint and the Dying Declaration are material in nature. The said contradictions go to the very root of the matter, making both the Dying Declarations Page 17 of 64 HC-NIC Page 17 of 64 Created On Fri Dec 08 23:22:50 IST 2017 R/CR.A/764/1994 CAV JUDGMENT unreliable.
23. That, the chain of circumstantial evidence is not at all complete. The socalled incriminating circumstances certainly do not point towards the guilt of the accused excluding every other hypothesis. It is submitted that, as per the settled position of law, where two views are possible, the view favouring acquittal, as taken by the Trial Court, ought to be upheld. It is urged that in the present case, only one view is possible and that view has been taken by the Trial Court by rightly acquitting the respondents. Hence, the judgment and order of the Trial Court, being just, proper and supported by cogent reasons, deserves to be confirmed and the appeal dismissed.
24. Before dealing with the rival submissions, it would be appropriate to take a brief look at the oral and documentary evidence on record.
25. Premchand Maganbhai Motwani, the husband of the deceased, has been examined as PW1. He claims to have been in Mumbai when the incident took Page 18 of 64 HC-NIC Page 18 of 64 Created On Fri Dec 08 23:22:50 IST 2017 R/CR.A/764/1994 CAV JUDGMENT place. He returned the next day on 25.04.1992. On reaching home, he was informed by his daughter, Mona, that somebody had burnt her mother and she was in Hospital. On reaching the Civil Hospital, Ahmedabad, he saw his wife in a burnt condition. He, however, states that she was conscious and could speak slowly. He claims to have spoken to the deceased and asked her how the incident occurred. According to this witness, the deceased told him that "Manubhai (respondent No.1) had called me to Kubernagar, so I went there. Thereafter, those people together beat me up and burnt me". As she could not speak much, he did not question her further.
26. In crossexamination, this witness admits stating before the Police that the deceased had an account in the State Bank of India, Saijpur Bogha Branch, in which the balance was only Rs.150/ for the past eight months. She had no chequebook. He states that he does not know whether his wife had a gold locket which she had broken down to make a new necklace. However, he then states that the locket was broken and after Page 19 of 64 HC-NIC Page 19 of 64 Created On Fri Dec 08 23:22:50 IST 2017 R/CR.A/764/1994 CAV JUDGMENT adding more gold, a five `Tola' necklace was made, but that he did not see the necklace. This witness further states that the deceased had sent a telegram against one Kanaiyalal Nathalal to the Madhupura Police Station in which it was stated that Kanaiyalal Nathalal had looted a Kinetic Honda scooter and a gold necklace from her. The Police took the statement of this witness in respect of the complaint and in which he had stated that he had borrowed Rs.1,50,000/ from Kanaiyalal, which he could not return. He states that he does not know whether Kanaiyalal Nathalal had bought a Kinetic Honda scooter for his wife from outside Delhi Darwaja. He denies the suggestion that he had stated before the Police that he had purchased a Kinetic Honda scooter from Mahesh Auto Center outside Dariyapur Darwaza one and a half months ago but could not pay for it. As Kanaiyalal was the guarantor, the owner of Mahesh Auto Centre had asked him for the money which he had paid on 04.05.1991 and he had given the Kinetic Honda scooter to Kanaiyalal. This witness was shown a Page 20 of 64 HC-NIC Page 20 of 64 Created On Fri Dec 08 23:22:50 IST 2017 R/CR.A/764/1994 CAV JUDGMENT photograph which he stated was that of his wife, with the said Kanaiyalal Nathalal. The photograph is at Ex.26. However, he denies the suggestion that his wife used to ensnare and lure wealthy persons to extort money from them. He admits that an article was published in the Western Times on 23.09.1991, containing a photograph of his wife. The article is at Ex.27. He further admits that an article regarding his wife was also published in "Jay Hind" newspaper which is at Ex.28.
27. It further emerges from the testimony of this witness that on 29.04.1991, his wife, the deceased, had divorced him by way of a Divorce Deed (Exh.29) which was notarised by a Notary at the Gheekanta Court. He admits that the deceased had then married respondent No.1, Manohar Chanchaldas Sindhi, on 02.05.1991 and the marriage was got registered. The Memorandum of Marriage is at Ex.30. He, however, denies the suggestion that the deceased and respondent No.1 used to live as husband and wife in his flat or that the deceased had married respondent No.1 in Page 21 of 64 HC-NIC Page 21 of 64 Created On Fri Dec 08 23:22:50 IST 2017 R/CR.A/764/1994 CAV JUDGMENT order to extract money from him. This witness further states that on 25.06.1991, the deceased divorced respondent No.1. This Divorce Deed is at Ex.31. He further states that on the same day, the deceased had remarried him. The Marriage Registration Certificate has been admitted by him and is at Ex.32.
28. PW1 states that when he went to meet his wife on the day of the incident, he did not see her wearing two bangles. Even after she died he did not see bangles or rings on her hand. He states that he last saw his wife on 19.04.1992 or 20.04.1992 but does not remember whether she had worn any bangles or rings on that day. He states that he does not know whether the deceased had Rs.10,000/ cash with her. He states that he has not seen diamond earrings with the deceased. He does not remember whether the deceased was wearing glass bangles on the day he left for Mumbai. He admits his statement before the Police that his wife had told him that on 24.04.1992, she had gone to Ishwarbhai's house in Kubernagar to recover the money she had lent Page 22 of 64 HC-NIC Page 22 of 64 Created On Fri Dec 08 23:22:50 IST 2017 R/CR.A/764/1994 CAV JUDGMENT him and thereafter, respondent No.1 had told her to come to his house, so she had gone there. He states that before the incident, the deceased had never gone to the house of respondent No.1 but after June 1991, respondent No.1 used to come to his house to meet the deceased. This witness further states that he does not know whether, on the day of the incident, the deceased had gone to the house of respondent No.1 with kerosene and a matchbox or whether she had poured kerosene on her person outside his house and set herself ablaze.
29. PW2, Durgashankar Nilkanth Shrimali is the Panch Witness of the Panchnama of the scene of offence, at Ex.34. He has turned hostile and has not supported the case of the prosecution.
30. PW3, Sonu Rameshlal Hirani, an independent witness, states that in the year 1992, he was employed by Bhagwandas Khalasi. He does not remember the date on which the incident took place but it was about one and a half years from the date of his deposition. He states that he Page 23 of 64 HC-NIC Page 23 of 64 Created On Fri Dec 08 23:22:50 IST 2017 R/CR.A/764/1994 CAV JUDGMENT was going from his shop when he saw deceased Nitaben. She had a polythene bag in her hand.
31. In crossexamination, this witness states that it was about 9:00 to 9:30 PM when he saw Nitaben. He reiterates that she had a polythene bag in her hand but says that he does not know what was inside the bag. He was shown the Muddamal polythene bag and identified it as the same bag carried by the deceased when he saw her.
32. The Executive Magistrate who recorded the Dying Declaration of the deceased, Shri Suryakant Jivrambhai Patel, has been examined as PW4, at Ex.35. He states that he had received the "Yaadi" from Sardarnagar Police Station to record the Dying Declaration at 00:25 Hrs. On the "Yaadi", the opinion of the Doctor was endorsed, to the effect that the patient is conscious. This witness reached the Hospital at 00:45 Hrs. and went to G2 Ward. A Nurse at the Hospital identified the deceased. He states that the deceased was conscious when he met her. Page 24 of 64 HC-NIC Page 24 of 64 Created On Fri Dec 08 23:22:50 IST 2017 R/CR.A/764/1994 CAV JUDGMENT She could speak and reply to his questions. He started recording the Dying Declaration (Ex.37) at 00:45 Hrs. He asked deceased questions and wrote down her answers. This witness states that the deceased was not in a condition to append her signatures as both her hands were bandaged. He made an endorsement to this effect on the Dying Declaration. He states that the deceased had stated before him that "respondent No.1 came to my house at 9:30 PM and asked me to give him my scooter. He told me that he had to go to collect an amount of Rs.50,000/ from Ishwarbhai, that is why I should give him the scooter. Respondent No.1 took my scooter and went. Thereafter, I went to the house of respondent No.1 at 10:00 PM. He asked me to come in and made me sit. Thereafter, the younger brothers of respondent No.1 caught hold of me. My purse containing Rs.10,000/ cash was snatched by respondent No.1 who also threatened to kill me." This witness states that the deceased further stated before him that "respondent No.1 told the other respondents to Page 25 of 64 HC-NIC Page 25 of 64 Created On Fri Dec 08 23:22:50 IST 2017 R/CR.A/764/1994 CAV JUDGMENT bring the sword lying above the room of his mother, therefore, being scared, I ran away. Respondent No.1 caught hold of me and forcibly poured kerosene on me and set me ablaze. I ran out from there and started rolling in the heap of sand to extinguish the flames. Thereafter, I sat in a rickshaw and went to Sardarnagar Police Station from where I was taken to the Civil Hospital". This witness further states that the deceased had told him that when the incident took place she had worn four gold bangles weighing two tolas, a gold chain weighing two and a half tolas, diamond earrings worth Rs.12,000/ and a gold ring weighing one and a half tolas. This witness states that he wrote down whatever the deceased had stated in the Dying Declaration, which was signed by him. As the deceased could not sign, he made an endorsement to this effect and put his signature near the said endorsement. The Executive Magistrate further states that when he was recording the Dying Declaration, none of the relatives of the deceased were present and this Page 26 of 64 HC-NIC Page 26 of 64 Created On Fri Dec 08 23:22:50 IST 2017 R/CR.A/764/1994 CAV JUDGMENT endorsement was also made and signed by him.
33. In crossexamination, this witness admits that when he was recording the Dying Declaration, no Doctor was present. A Nurse was there but he did not ask her to call the Doctor. He states that he is aware that a Doctor is required to make an endorsement on the Dying Declaration that the patient is conscious. However, he did not call the Doctor for the entire duration while the Dying Declaration was being recorded. He tried to find the Doctor but he could not be found. However, he did not state so on the Dying Declaration. He states that he does not know whether the deceased was wearing bangles or not, as her hands were bandaged. He further states that he did not ask the Nurse whether the Doctor had injected the deceased with a tranquilizer, or not. When he went to record the Dying Declaration, the deceased was not being treated but was just lying there. He further states that he recorded the Dying Declaration in question and answer form and wrote the answers as per the reply of the deceased. He admits that there are Page 27 of 64 HC-NIC Page 27 of 64 Created On Fri Dec 08 23:22:50 IST 2017 R/CR.A/764/1994 CAV JUDGMENT some corrections in the Dying Declaration.
34. The Dying Declaration is at Ex.37. It was commenced at 00:45 Hrs. on 25.04.1992 and concluded at 01:30 Hrs. The Executive Magistrate asked the deceased where the incident took place and she gave the address of respondent No.1's house. A question was put to her regarding who had burnt her, in answer to which she took the names of all the respondents. He then asked her why she had gone to the house of respondent No.1, to which question the deceased gave the following answer:
"Respondent No.1 had come to my house at 8:30 PM saying that he wants to go to the house of Ishwarbhai Darbar to recover Rs.50,000/ from him, therefore, I should give him my scooter.
Respondent No.1 took my scooter and went to Kubernagar and I went at 9:00 PM from Shahibaug to Kubernagar in a rickshaw."
The description of the incident given by the deceased, as recorded in her Dying Declaration, is as follows:
Page 28 of 64
HC-NIC Page 28 of 64 Created On Fri Dec 08 23:22:50 IST 2017 R/CR.A/764/1994 CAV JUDGMENT "At 10:00 PM, I took a rickshaw and went to the house of respondent No.1 who called me inside and made me sit down. Thereafter, his brother came and caught hold of me and asked me to take off all my jewellery, stating that I was cheating him. My ornaments were forcibly taken off and my purse with Rs.10,000/ cash was snatched from me. Respondent No.1 told his younger brother to bring a sword kept above his mother's room. I got scared and started running out from the backdoor. At that point of time, respondent No.1 caught hold of me and told his sister to bring the can of kerosene. His sister brought the can of kerosene and Dhanraj poured kerosene on me. Meghraj took out a matchbox from his pocket, lit the match and set me on fire. I ran out into the street and the respondents ran after me. I saw a heap of sand and tried to extinguish the flames on it.
Thereafter, I ran to the road, stopped a rickshaw and went in the said rickshaw to Sardarnagar Police Station. I lodged my complaint and then went to the Hospital."Page 29 of 64
HC-NIC Page 29 of 64 Created On Fri Dec 08 23:22:50 IST 2017 R/CR.A/764/1994 CAV JUDGMENT The Executive Magistrate asked the deceased what her relationship with respondent No.1 was, to which she answered that the said respondent was her husband's brother "Dharamnobhai".
35. Dr.Vinayakrao Vasudev Patil, who performed the postmortem on the body of the deceased, has been examined as PW5 at Ex.38. He states that the deceased had received second and third degree burns on her entire body and describes the burn injuries in detail.
36. The postmortem report is at Ex.21, wherein the cause of death has been stated to be: "Death is due to shock of Burns and Complications".
37. PW6, Sunitaben Rajkumar Chavdi, a neighbour, has been declared hostile. In crossexamination she has stated that on 24.04.1992, when she and her family were watching television at night, she heard shouts for help at ten o'clock. She immediately came out and saw a woman running in the street opposite her house. She states that there was a heap of sand beside her house but she did not see the deceased rolling in the heap Page 30 of 64 HC-NIC Page 30 of 64 Created On Fri Dec 08 23:22:50 IST 2017 R/CR.A/764/1994 CAV JUDGMENT of sand to extinguish the fire. Nor has she stated so in her Police statement.
38. PW7 is Natvarlal Chaganlal Oza, Police Sub Inspector. He states that on the night between 24.04.1992 and 25.04.1992, he was on duty at the Sardarnagar Police Station from 8:00 PM onwards. During that time, a lady (deceased) came to the Police Station in a burnt condition at about 23:00 Hrs. She was taken to the Hospital by him. As the Dying Declaration of the lady was to be recorded, he sent a Note to the Executive Magistrate with the endorsement of the Doctor on it. The report is in the handwriting of Constable Kanaiyalal, which he identified. The lady was admitted in G2 Ward of the Civil Hospital. As she was conscious, her complaint was recorded. This witness states that she could speak but could not sign as her hands were bandaged. He made an endorsement and put his signature on it at the places where she was required to sign. He states that he has recorded the complaint as narrated by the lady and registered it. This witness states that the lady Page 31 of 64 HC-NIC Page 31 of 64 Created On Fri Dec 08 23:22:50 IST 2017 R/CR.A/764/1994 CAV JUDGMENT has not stated in the complaint that the incident took place outside the backdoor of respondent No.1's house. As per the complaint, the incident took place inside the house of respondent No.1. He further states that in the complaint, the deceased did not say that respondent No.1 had come to her house at 8:30 PM to borrow her scooter on the pretext that he had to collect an amount of Rs.50,000/ from Ishwarbhai Darbar or that he had taken the scooter and she had gone to Kubernagar in a rickshaw. He further states that she did not state in the complaint that respondent No.1 had told her to come into the house and sit down or that she had sat down and respondent No.1's brother came, caught hold of her and demanded her jewellery, saying that she had cheated him. He further states that the deceased had not stated in the complaint that her jewellery was forcibly taken by the respondents and her purse containing Rs.10,000/ was snatched by them. She has also not stated that respondent No.1 told his younger brother to bring the sword lying Page 32 of 64 HC-NIC Page 32 of 64 Created On Fri Dec 08 23:22:50 IST 2017 R/CR.A/764/1994 CAV JUDGMENT above his mother's room or that she felt frightened and ran out from the backdoor. She has not stated that the respondents caught hold of her and respondent No.1 asked his sister to get a can of kerosene, which she brought, or that respondent No.2 poured kerosene upon her and her four gold bangles of two tolas, one gold necklace of one and a half tolas, two diamond earrings worth Rs.12,000/ and two gold rings with stones weighing one and a half tolas were looted by the respondents. Hence, the testimony of this witness brings out the discrepancies between the version of the deceased in the complaint and that in the Dying Declaration.
39. The complaint given by the deceased to PW7 is at Ex.42. In the said complaint, the deceased had stated that she has maintained family relations with respondent No.1, who stays at House No.199, GWard, Kubernagar for a long period of time. He frequently visits her house and she frequently goes to his house. On 24.04.1992, at about 9:00 PM, respondent No.1 came to her house and told her to come to his Page 33 of 64 HC-NIC Page 33 of 64 Created On Fri Dec 08 23:22:50 IST 2017 R/CR.A/764/1994 CAV JUDGMENT house. The deceased went to the house of respondent No.1 at about 10:00 PM. Respondent No.1, his brothers Dhanraj (respondent No.2), Meghraj (respondent No.3), sister Pushpaben (respondent No.6), Anita (respondent No.4 - wife of respondent No.2) and Babita (respondent No.5
- wife of respondent No.3) were present there. Respondent No.1 and his brothers demanded money from the deceased. When she told them that she had no money, respondent No.1 told her to sell her jewellery and give them the money. She refused to give her jewellery, therefore, all the respondents started giving her kick and fist blows. Respondents Nos.1 and 3 started beating her with sticks. She started screaming but they all gagged her mouth. The sister of respondent No.1 brought a can containing kerosene from somewhere and poured it on her. Respondent No.3 lit a match and her clothes caught fire. Soon her body started burning. As she burned, the respondents retreated to a distance. Taking advantage of the situation, she went out through the backdoor, screaming. People from the Page 34 of 64 HC-NIC Page 34 of 64 Created On Fri Dec 08 23:22:50 IST 2017 R/CR.A/764/1994 CAV JUDGMENT neighbourhood gathered but nobody tried to save her. She saw a heap of sand outside and started rolling on it, to extinguish the flames. After the flames were extinguished, she hired a rickshaw and went to the Police Station, from where the Police personnel took her in a mobile van to the Civil Hospital for treatment. She stated that she has sustained burns on her hands, legs, face, back and chest, but is fully conscious.
40. The other Investigating Officer, Mr.Damodarprasad Vaidhnath Pandey, Police Inspector, has been examined as PW8. He has described the procedure undertaken by him while conducting the investigation and nothing much turns upon his testimony.
41. After PW8 was examined, a closing Purshis was filed by the prosecution on 20.01.1994 (Ex.47). The defence gave an application at Ex.56 to examine the other Panch witness of the scene of offence, which was allowed.
42. Under the circumstances, Rameshkumar Ramlalit Page 35 of 64 HC-NIC Page 35 of 64 Created On Fri Dec 08 23:22:50 IST 2017 R/CR.A/764/1994 CAV JUDGMENT Thakar, the second Panch witness of the Panchnama of the Scene of Offence was examined as PW9. This witness states that when he was at his shop on 25.04.1992, at about 12:15 PM, he was called to the Sardarnagar Police Station to act as a Panch witness of the scene of offence. He, therefore, went to the spot and was shown the place by one Smitaben. He and the other Panch witness, the Police Inspector and the expert from the FSL, were present there. At the spot he saw a heap of sand but could not detect any signs indicating that a person had rolled on it. Going further down the street, they found a piece of halfburnt pink cloth which was part of a blouse. On inspection by him, the other Panch witness, Police personnel and the FSL expert, it was found that it smelt of kerosene. Lying next to it was a pink coloured slipper, smelling of kerosene. There was also a halfburnt piece of slipper, also smelling of kerosene. A burnt matchbox was found from the spot, smelling of kerosene. These articles were put in separate plastic boxes with paper slips containing the Page 36 of 64 HC-NIC Page 36 of 64 Created On Fri Dec 08 23:22:50 IST 2017 R/CR.A/764/1994 CAV JUDGMENT signatures of the Panch witnesses and sealed.
43. In crossexamination, this witness states that all these articles were found from the street outside the house of respondent No.1 and nothing was found from within the house. The FSL expert examined the interior of the house of respondent No.1 but did not detect any smell of kerosene. No traces of kerosene or burning were found in the house. The backdoor of the house did not smell of kerosene and no traces of kerosene were found on it. The outside wall of the house did not contain any signs or odour of kerosene.
44. The report of the FSL is at Ex.20. It is clearly stated in the said report that no incriminating evidence was found from inside the house. Articles such as the halfburnt piece of pink coloured blouse, a matchbox with "Kapaas" written on it, a burnt match stick, a pink slipper and a halfburnt slipper, all smelling kerosene, were found from the street outside the house.
45. After appreciation of the oral and documentary Page 37 of 64 HC-NIC Page 37 of 64 Created On Fri Dec 08 23:22:50 IST 2017 R/CR.A/764/1994 CAV JUDGMENT evidence on record, the Trial Court arrived at the conclusion that none of the charges against the respondents could be proved by the prosecution which had failed to produce sufficient evidence to hold them guilty beyond reasonable doubt. The respondents were acquitted by giving them the benefit of doubt.
46. The entire case of the prosecution hinges upon the Dying Declaration recorded by the Executive Magistrate at Ex.37 and the complaint made by the deceased prior thereto, at Ex.42, which can also be considered as a Dying Declaration.
47. It is a settled position of law, reiterated by the Supreme Court in a catena of judgments, that Section 32 of the Evidence Act, 1872, is an exception to the general rule against the admissibility of hearsay evidence. Subsection (1) of Section 32 makes the statement of the deceased admissible in evidence. This statement is generally described as a Dying Declaration.
48. In support of her submissions, learned Additional Public Prosecutor has relied upon Page 38 of 64 HC-NIC Page 38 of 64 Created On Fri Dec 08 23:22:50 IST 2017 R/CR.A/764/1994 CAV JUDGMENT Shudhakar v. State of Madhya Pradesh (2012)7 SCC 569. In the said judgment, in addition to other judgments, the Supreme Court has discussed the ratio laid down by it in the case of Bhajju v. State of M.P. (2012)4 SCC 327 and Surinder Kumar v. State of Haryana - (2011)10 SCC 173. Insofar as multiple Dying Declarations are concerned, the Supreme Court has held as below:
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, is being examined. 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 Page 39 of 64 HC-NIC Page 39 of 64 Created On Fri Dec 08 23:22:50 IST 2017 R/CR.A/764/1994 CAV JUDGMENT 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.
(Paras 21 to 25)
49. In Bhajju v. State of M.P. (supra), the Supreme Court has stated that it cannot be laid down as an absolute rule of law that a Dying Declaration cannot form the sole basis of conviction unless it is corroborated by other evidence. If the Dying Declaration is found to be reliable, it could form the basis of conviction.
50. However, as held by the Supreme Court in Surinder Kumar v. State of Haryana (supra), if the Dying Declaration is shrouded by suspicious circumstances, no witness in support thereof had been examined, and it is not found to be reliable, it may not be used as a sole piece of evidence to convict the accused. The necessary criteria in order to base the conviction upon the basis of the Dying Declaration is that it should be truthful, voluntary and reliable. Page 40 of 64 HC-NIC Page 40 of 64 Created On Fri Dec 08 23:22:50 IST 2017 R/CR.A/764/1994 CAV JUDGMENT
51. In the case of Shudhakar v. State of Madhya Pradesh (supra), relied upon by the learned Additional Public Prosecutor, the Supreme Court has discussed the judgment in the case of Chirra Shivraj v. State of A.P. (2010)14 SCC 444, in Paragraph17, as under:
"17. In the case of Chirra Shivraj v. State of Andhra Pradesh [(2010) 14 SCC 444], the Court expressed a caution that a mechanical approach in relying upon the dying declaration just because it is there, is extremely dangerous. The court has to examine a dying declaration scrupulously with a microscopic eye to find out whether the dying declaration is voluntary, truthful, made in a conscious state of mind and without being influenced by other persons and where these ingredients are satisfied, the Court expressed the view that it cannot be said that on the sole basis of a dying declaration, the order of conviction could not be passed."
(emphasis supplied) This paragraph has also been relied upon by Mr.J.M.Panchal, learned counsel for the respondents.
Page 41 of 64 HC-NIC Page 41 of 64 Created On Fri Dec 08 23:22:50 IST 2017 R/CR.A/764/1994 CAV JUDGMENT
52. Learned counsel for the respondents has further relied upon the case of State of Punjab v. Parveen Kumar - (2006)1 SCC (Cri.) 146, wherein the Apex Court has held as below:
"10. While appreciating the credibility of the evidence produced before the Court, the Court must view evidence as a whole and come to a conclusion as to its genuineness and truthfulness. The mere fact that two different versions are given but one name is common in both of them cannot be a ground for convicting the named person. The court must be satisfied that the dying declaration is truthful. If there are two dying declarations giving two different versions, a serious doubt is created about the truthfulness of the dying declaration. It may be that if there was any other reliable evidence on record, this Court could have considered such corroborative evidence to test the truthfulness of the dying declarations. The two dying declarations, however, in the instant case stand by themselves and there is no other reliable evidence on record by reference to which their truthfulness can be tested. It is well settled that one piece of unreliable evidence cannot be used to Page 42 of 64 HC-NIC Page 42 of 64 Created On Fri Dec 08 23:22:50 IST 2017 R/CR.A/764/1994 CAV JUDGMENT corroborate another piece of unreliable evidence. The High Court while considering the evidence on record has rightly applied the principles laid down by this Court in Thurukanni Pompiah and another v. State of Mysore, AIR 1965 SC 939, and Khusal Rao v. State of Bombay, 1958 SCR 552."
(emphasis supplied)
53. Another judgment relied upon by learned defence counsel is that in the case of Gopal v. State of Madhya Pradesh - (2009)12 SCC 600, wherein the Apex Court has held as below:
"12. It is to be noted that the High Court had itself observed that the dying declaration (Exh.P11) scribed by the Executive Officer (sic Magistrate) (PW9) at about 0435 hours in the same night was not in conformity with the FIR and the earlier dying declaration (Exh.P3) scribed by ASI Balram (PW 8) as different motives have been described. That is not the only variation. Several other discrepancies, even as regards the manner in which she is supposed to have been sprinkled with kerosene and thereafter set on fire. Therefore, the discrepancies make the last declaration doubtful. The nature of the inconsistencies Page 43 of 64 HC-NIC Page 43 of 64 Created On Fri Dec 08 23:22:50 IST 2017 R/CR.A/764/1994 CAV JUDGMENT is such that they are certainly material. That being so, it would be unsafe to convict the appellant. The conviction is set aside and appellant is acquitted of the charges. He be set at liberty forthwith unless required to be in custody in connection with any other case."
(emphasis supplied)
54. Reliance is also placed upon the case of State of Andhra Pradesh v. P.Khaja Hussain (2010)2 SCC (Cri.) 380 : (2009)15 SCC 120, wherein the Supreme Court has held as under:
"3. The High Court noticed that there was variation between the two dying declarations about the manner in which the deceased was set on fire. In fact that the two dying declarations can be reconciled with each other and since no other evidence was available to connect accused with crime the conviction as recorded was held to be not sustainable. Accordingly acquittal was directed.
4. Learned counsel for the appellantState submitted that the variation between the two dying declarations was not very significant and the High Court should not have discarded the subsequent dying declaration on the Page 44 of 64 HC-NIC Page 44 of 64 Created On Fri Dec 08 23:22:50 IST 2017 R/CR.A/764/1994 CAV JUDGMENT ground that it was at variance with the first dying declaration. There is no appearance on behalf of the respondent in spite of service of notice.
5. There is no explanation as to why the second dying declaration was recorded by the Head Constable of Police shortly after such a statement was recorded when the dying declaration have already been recorded by the Magistrate.
6. It is not a case where the variation between the two dying declarations is of trivial in nature. The scenario was described in substantially different manner. The High Court noted that the improvements were made to rationalise with the injuries sustained by the deceased."
55. In the case of Kashi Vishwanath v. State of Karnataka - (2013)7 SCC 162, also relied upon by learned counsel for the respondents, the Supreme Court was dealing with three Dying Declarations which showed glaring material contradictions. After discussing the factual situation regarding the said discrepancies and contradictions in the Dying Declarations, the Supreme Court, following the principle laid down Page 45 of 64 HC-NIC Page 45 of 64 Created On Fri Dec 08 23:22:50 IST 2017 R/CR.A/764/1994 CAV JUDGMENT in the case of Mehiboobsab Abbasabi Nadaf v. State of Karnataka - (2007)13 SCC 112 :
(2009)1 SCC (Cri.)287, wherein it was held, in Paragraph7 that, "conviction can indisputably be based on a dying declaration. But, before it can be acted upon, the same must be held to have been rendered voluntarily and truthfully.
Consistency in the dying declaration is the relevant factor for placing full reliance thereupon. In this case, the deceased herself had taken contradictory and inconsistent stand in different dying declarations. They, therefore, should not be accepted on their face value. Caution, in this behalf, is required to be applied"; allowed the appeal and set aside the conviction of the appellant therein.
56. In the present case there are two recorded Dying Declarations in the form of Ex.37 by the Executive Magistrate and the complaint at Ex.42. One purported oral Dying Declaration is stated to have been made by the deceased to her husband PW1, wherein, she has stated that respondent No.1 had called her to his house and she had Page 46 of 64 HC-NIC Page 46 of 64 Created On Fri Dec 08 23:22:50 IST 2017 R/CR.A/764/1994 CAV JUDGMENT gone there. "Those people (respondents)" then beat her and burnt her.
57. The essence of the principles of law laid down by the Apex Court in the abovenoticed judgments is that consistency and truthfulness are the most relevant factors in a case involving more than one Dying Declaration. Where the deceased herself gives materially contradictory and inconsistent versions in different Dying Declarations and the contradictions are not so minor that they can be ignored but are grave enough to make both versions irreconcilable, certainly, a doubt would arise regarding the truthfulness of such Dying Declarations which cannot then form the basis for the conviction of the accused.
58. The case in hand is a peculiar one, inasmuch as the legally accepted principle that a person would not lie on his, or her, deathbed, is seriously challenged. The veracity of the Dying Declarations given by the deceased is required to be seen in the background and context of the Page 47 of 64 HC-NIC Page 47 of 64 Created On Fri Dec 08 23:22:50 IST 2017 R/CR.A/764/1994 CAV JUDGMENT facts of a particular case and the material on record. Examined in that background, in view of the material contradictions and improvements, the mutually inconsistent versions in the complaint, the Dying Declaration recorded by the Executive Magistrate and the oral Dying Declaration, unfortunately, the deceased does not emerge as a truthful person even on her deathbed. It appears that she is bent upon falsely implicating the respondents for reasons best known to herself. Her true relationship with respondent No.1 has been concealed by her. She has not only implicated respondent No.1 but also all his family members, including three ladies.
59. The truthfulness of the Dying Declarations given by the deceased, is therefore, highly doubtful, in spite of the fact that she was on the verge of death and would probably have been aware that she would not survive.
60. The possibility that the deceased herself carried kerosene in a polythene bag, with which Page 48 of 64 HC-NIC Page 48 of 64 Created On Fri Dec 08 23:22:50 IST 2017 R/CR.A/764/1994 CAV JUDGMENT she doused herself outside the house of the respondents, cannot be ignored. PW3 saw the deceased going to the house of respondent No.1 with a plastic bag. Traces of the bag were found outside the house, smelling of kerosene. Why the deceased took kerosene in a bag, if at all, whether she doused herself with it with the intention of blackmailing the respondents or whether it was an attempted but unintended suicide gone horribly wrong, are questions to which one cannot find any answers from the material on record. However, these questions raise several possibilities that cannot be lightly brushed aside.
61. Though we found the reference to the character of the deceased in the judgment of the Trial Court a little distasteful, however, in order to place the Dying Declarations in proper perspective and context, the conduct and the lifestyle of the deceased and her true relationship with respondent No.1 that she has tried to conceal is an important aspect. This aspect has been brought on record by way of Page 49 of 64 HC-NIC Page 49 of 64 Created On Fri Dec 08 23:22:50 IST 2017 R/CR.A/764/1994 CAV JUDGMENT documentary evidence and gains importance as it indicates that the deceased was not speaking the truth. Whatever she has stated on her deathbed, in the Dying Declarations, has been proved to be false by documentary evidence on record.
62. Human nature cannot be fathomed and remains unpredictable. One cannot generalise who would react in what manner, in any given situation. The character, nature and behaviour of a person may indicate the possible reaction but even then no generalisation is possible to predict or guarantee how a person would behave when he or she finds that life is ebbing away. One is optimistic enough to have sufficient faith in human nature and expect that a person would speak the truth at the last stages of life. It is this optimistic belief in human nature that has given rise to the legal principle emanating from the latin maxim "nemo moriturus praesumitur mentire", meaning that a man will not meet his Maker with a lie in his mouth. Law in India has developed along the same lines and recognises the fact that "a dying man seldom Page 50 of 64 HC-NIC Page 50 of 64 Created On Fri Dec 08 23:22:50 IST 2017 R/CR.A/764/1994 CAV JUDGMENT lies" or "truth sits upon the lips of a dying man".
63. In the case of Laxman v. State of Maharashtra - (2002)6 SCC 710, the Constitution Bench of the Supreme Court was deliberating regarding the acceptability of a Dying Declaration, and held as below:
"3. The juristic theory regarding acceptability of a dying declaration is that such declaration is made in extremity, when the party is at the point of death and when every hope of this world is gone, when every motive to falsehood is silenced, and the man is induced by the most powerful consideration to speak only the truth. Notwithstanding the same, great caution must be exercised in considering the weight to be given to this species of evidence on account of the existence of many circumstances which may affect their truth. The situation in which a man is on death bed is so solemn and serene, is the reason in law to accept the veracity of his statement. It is for this reason the requirements of oath and cross examination are dispensed with. Since the accused has no power of crossexamination, the court insist that the dying declaration Page 51 of 64 HC-NIC Page 51 of 64 Created On Fri Dec 08 23:22:50 IST 2017 R/CR.A/764/1994 CAV JUDGMENT should be of such a nature as to inspire full confidence of the court in its truthfulness and correctness. The court, however has to always be on guard to see that the statement of the deceased was not as a result of either tutoring or prompting or a product of imagination....."
64. Considering the frailties of human nature, it may not always occur that a dying person would be visited with spiritual realization, making him or her rise above such human failings. Often, the last thoughts in the mind of a dying person would colour his or her mental horizon. Such appears to be the case with the deceased, who could not rise above her nature even on her deathbed, and tell the truth. With her last breath she has sought to falsely implicate the respondents for reasons best known to herself. However, the evidence on record does not support such implication.
65. The material on record brings out a very different picture of the deceased than what she sought to project. Her lifestyle and activities were not those of a normal homemaker. She led a Page 52 of 64 HC-NIC Page 52 of 64 Created On Fri Dec 08 23:22:50 IST 2017 R/CR.A/764/1994 CAV JUDGMENT different kind of life. The story about her jewellery and money being looted is belied by her own husband, PW1, who states that he never saw such jewellery with her and that she had no more than Rs.150/ in her Bank account. No jewellery or cash was recovered from the house of respondent No.1. Different reasons are given by the deceased for going to the house of respondent No.1 to different persons, which erode her trustworthiness. It cannot be ruled out that the deceased was not called by respondent No.1 to his house but went there on her own, for some oblique purpose.
66. Certain glaring contradictions and discrepancies arising from a comparison of the two Dying Declarations at Ex.37 and Ex.42, emerge, as summarised below:
(a) In the complaint at Ex.42, the deceased has stated that she had homely relations with respondent No.1 and they often visited each other. The deceased has concealed the factum of her divorce with her husband PW1 and her Page 53 of 64 HC-NIC Page 53 of 64 Created On Fri Dec 08 23:22:50 IST 2017 R/CR.A/764/1994 CAV JUDGMENT marriage with respondent No.1. She has also concealed that she had then divorced respondent No.1 and remarried her husband.
(b) The deceased has stated in the complaint at Ex.42 that on 24.04.1992, respondent No.1 came to her house and asked her to come to his house. She, therefore went to his house at 10:00 PM. This is not stated in Ex.37.
(c) As per the complaint at Ex.42, respondent No.1 and his brothers demanded money from the deceased and when she told them she did not have money, respondent No.1 asked her to sell her ornaments and give him the money. The deceased refused to hand over or sell her ornaments, therefore, all the respondents started giving her kick and fist blows.
Respondents Nos.1, 2 and 3 started beating her with sticks and all the respondents together gagged her mouth. The sister of respondent No.1 poured kerosene on her person and the match was lit by respondent No.3. When she started burning, the accused ran away to a distance. All Page 54 of 64 HC-NIC Page 54 of 64 Created On Fri Dec 08 23:22:50 IST 2017 R/CR.A/764/1994 CAV JUDGMENT this is not stated in Ex.37, where another version is given.
(d) In the Dying Declaration at Ex.37, it is stated that respondent No.1 came to the house of the deceased and asked her to give him her scooter as he wanted to go to Ishwarbhai Darbar to collect Rs.50,000/. He took the scooter and the deceased came to Kubernagar at 9:00 PM in a rickshaw. This is not stated in the complaint.
(e) The version in the Dying Declaration that respondent No.1 called the deceased into her house and asked her to sit down and thereafter, the brother of respondent No.1 came and caught hold of her and asked her to take off her ornaments, telling her that she had committed breach of trust and that he forcibly took off her ornaments and also took away Rs.10,000/ from her purse, is not stated in the complaint.
(f) The version in the Dying Declaration that the younger brother of respondent No.1 was asked to get a sword lying above his mother's Page 55 of 64 HC-NIC Page 55 of 64 Created On Fri Dec 08 23:22:50 IST 2017 R/CR.A/764/1994 CAV JUDGMENT room and the deceased, being frightened, attempted to run away from the backdoor but respondent No.1 having caught her and directed his sister to bring a can of kerosene and respondent No.2 having poured kerosene on her, is not stated in the complaint.
(g) The version given by the deceased before the Executive Magistrate in the Dying Declaration that she knew respondent No.1 for about eight years and he was like a brother to her husband, is also not stated in the FIR.
(h) The version about her having four gold bangles weighing two tolas, a gold necklace, two diamond earrings weighing one and a half tolas, is also not stated in the FIR.
67. It therefore transpires that there are fundamental infirmities in both the Dying Declarations (Ex.37 and Ex.42), which are riddled with material and vital contradictions that totally erode their credibility, truthfulness and veracity. The material on record gives rise to a very strong doubt that Page 56 of 64 HC-NIC Page 56 of 64 Created On Fri Dec 08 23:22:50 IST 2017 R/CR.A/764/1994 CAV JUDGMENT the deceased was deliberately lying, even on her deathbed.
68. It further emerges from the testimony of PW3 that the deceased had come with a polythene bag. PW3 has not been declared hostile or contradicted. Pieces of the polythene bag were found at the scene of offence, as recorded in the Panchnama at Ex.58, smelling of kerosene. No traces or odour of kerosene were found inside the house of respondent No.1 or even from the inside or back of the house. This is proved by the evidence of PW8. The person and clothes of the respondents did not smell of kerosene which is clear from the evidence of PW8. The place of the incident, as per the case of the prosecution, is inside the house of the respondents. This theory is seriously challenged by the evidence on record and there is every possibility that the incident did not take place inside the house but took place in a lane outside the house, where the articles described hereinabove were found. There is no blackening in the house of respondent No.1, which would Page 57 of 64 HC-NIC Page 57 of 64 Created On Fri Dec 08 23:22:50 IST 2017 R/CR.A/764/1994 CAV JUDGMENT naturally have occurred if the deceased had been set ablaze there. The report of the FSL at Ex.20 makes this clear. There is no evidence that the deceased was wearing the ornaments described by her in the Dying Declaration stated to have been forcibly looted by the respondents. There is also no evidence to substantiate the aspect that she was carrying a purse containing Rs.10,000/ cash. On the contrary, her husband PW1 has stated that there was only an amount of Rs.150/ in her Bank account. No ornaments were recovered from the respondents during the course of investigation as stated by PW8, the Investigating Officer. The ornaments worn by the deceased at the time of death, namely, bangles and a ring, were found to be made of brass, which is proved from the evidence of PW8.
69. No motive appears to have been nurtured by the respondents in order to commit the crime. The entire origin and genesis of the occurrence is shrouded in doubt. After scrutiny and evaluation of the entire oral and documentary evidence on record, we find that the prosecution has failed Page 58 of 64 HC-NIC Page 58 of 64 Created On Fri Dec 08 23:22:50 IST 2017 R/CR.A/764/1994 CAV JUDGMENT to establish its case beyond reasonable doubt.
70. The present is a case of circumstantial evidence as there are no eyewitnesses to the incident. In Sharad Birdichand Sarda v. State of Maharashtra (1984)4 SCC 116, which is a locus classicus on the point of circumstantial evidence, the Supreme Court has laid down certain principles regarding the conditions required to be fulfilled by the prosecution to prove the guilt of the accused beyond reasonable doubt. The relevant paragraph is quoted hereinbelow:
"153. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established:
(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established.
It may be noted here that this Court indicated that the circumstances concerned 'must or should' and not 'may be' established. There is not only a grammatical but a legal distinction between 'may be Page 59 of 64 HC-NIC Page 59 of 64 Created On Fri Dec 08 23:22:50 IST 2017 R/CR.A/764/1994 CAV JUDGMENT proved' and 'must be or should be proved' as was held by this Court in Shivaji Sahebrao Bobade v. State of Maharashtra, (1973) 2 SCC 793 : (AIR 1973 SC 2622) where the following observations were made :
"Certainly, it is a primary principle that the accused must be and not merely may be guilty before a Court can convict and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions."
(2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty, (3) the circumstances should be of a conclusive nature and tendency, (4) they should exclude every possible hypothesis except the one to be proved, and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
154. These five golden principles, if we may Page 60 of 64 HC-NIC Page 60 of 64 Created On Fri Dec 08 23:22:50 IST 2017 R/CR.A/764/1994 CAV JUDGMENT say so, constitute the panchsheel of the proof of a case based on circumstantial evidence."
In the present case, the prosecution has failed to prove that there are any circumstances establishing the guilt of the accused. The facts on record are not consistent only with the hypothesis of the guilt of the accused. Nor do they exclude every other hypothesis except the guilt of the accused. In fact, the circumstances brought out by the evidence leaves ample room to doubt the hypothesis that the accused are, in any manner, guilty of the offences with which they are charged.
71. It is a settled position of law that in a criminal Trial, the onus to prove the offence rests upon the prosecution. Unless the prosecution is successful in discharging this onus beyond reasonable doubt, its case cannot succeed. Where it is possible to form two views on the basis of the evidence on record, the view favourable to the accused ought to be adopted. This principle is laid down by the Apex Court in Page 61 of 64 HC-NIC Page 61 of 64 Created On Fri Dec 08 23:22:50 IST 2017 R/CR.A/764/1994 CAV JUDGMENT the case of Kali Ram v. State of Himachal Pradesh - AIR 1973 SC 2773, in the following terms:
Another golden threat which runs through the web of the administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. This principle has a special relevance in cases wherein the guilt of the accused is sought to be established by circumstantial evidence. Rule has accordingly been laid down that unless the evidence adduced in the case is consistent only with the hypothesis of the guilt of the accused and is inconsistent with that of his innocence, the Court should refrain from recording a finding of guilt of the accused. It is also an accepted rule that in case the Court entertains reasonable doubt regarding the guilt of the accused, the accused must have the benefit of that doubt. The rule regarding the benefit of doubt also does not warrant acquittal of the accused by resort to surmises, conjectures or fanciful considerations.Page 62 of 64
HC-NIC Page 62 of 64 Created On Fri Dec 08 23:22:50 IST 2017 R/CR.A/764/1994 CAV JUDGMENT Although the benefit of every reasonable doubt should be given to the accused, the courts should not at the same time reject evidence which is ex facie trustworthy on grounds which are fanciful or in the nature of conjectures.
The guilt of the accused has to be adjudged not by the fact that a vast number of people believe him to be guilty but whether his guilt has been established by the evidence brought on record. Indeed, the courts have hardly any other yardstick or material to adjudge the guilt of the person arraigned as accused. Reference is sometimes made to the clash of public interest and that of the individual accused. The conflict in this respect, however is more apparent than real.
(Paras 24 to 27) (emphasis supplied)
72. In conclusion, we find that the Trial Court has rightly discarded the Dying Declarations as not worthy of credence. It has rightly concluded that the prosecution has failed to prove the chain of circumstances against the respondents, or their involvement in the offence, beyond reasonable doubt. The Trial Court has arrived at a correct conclusion after a proper Page 63 of 64 HC-NIC Page 63 of 64 Created On Fri Dec 08 23:22:50 IST 2017 R/CR.A/764/1994 CAV JUDGMENT appreciation of the evidence on record, supported by cogent reasons. The view taken by the Trial Court is eminently probable and possible. We, therefore, find no justifiable reason to interfere with the acquittal of the respondents.
73. The appeal, being devoid of merit, stands dismissed.
74. Bail Bonds, if any, stand cancelled. The R.& P. be sent back to the Trial Court.
(SMT. ABHILASHA KUMARI, J.) (B.N. KARIA, J.) sunil Page 64 of 64 HC-NIC Page 64 of 64 Created On Fri Dec 08 23:22:50 IST 2017