Anjana Patel Abberaj Phulabhai v. STATE — 1993 DIGILAW 83 (GUJ)

J. N. BHATT, J. :, J. ( 1 ) IN this appeal under Section 374 of the Criminal Procedure Code, 1973 ("code" for short, hereinafter), appellant, who is the original accused, has assailed the order of conviction and sentence recorded by the learned Sessions Judge, banaskantha, at Palanpur, on 8-3-1985, in Sessions Case No. 45 of 1984. ( 2 ) A few material facts may be stated at the outset so as to appreciate the merits of this appeal. The appellant, who is the original accused, was residing at village bharkavada, and was doing agricultural operations at the relevant time. The prosecution has, inter alia contended that there was a joint well, wherein, the accused and the deceased Aljibhai karimad and one Ibrahim Karimad, had equal share. The pipe line for drawing water from the said joint well was also common. Of course, there were two separate electric motors. There were also small kundis. On 9-4-1984, the deceased had gone to the field in the early morning. At that time, accused was also present. There was some dispute between the deceased and the accused with regard to the drawing of water from the common well. The prosecution alleged that the accused abused and insulted the deceased. He tried to prevent the deceased from taking water. Subsequently, two blows with a wooden log (dhoka) were given on the person of the deceased. Thereafter the accused pushed the deceased down in the well. The alleged incident occurred in the early morning, at about 4 o clock. The deceased who was pushed down in the well had sustained injuries. He was taken out of the well and shifted to the hospital, where his statement was recorded by the Executive Magistrate, and later on, the injured succumbed to the injuries, at about 11 p. m. on the same day. ( 3 ) ON the aforesaid facts, the accused was charged in the Sessions Court for the offence punishable under Sections 504 and 302 of the Indian Penal Code. The prosecution relied on as many as 11 prosecution witnesses. ( 4 ) THE learned Sessions Judge, on examination and appreciation of the evidence, convicted the accused for the offence punishable under Section 304 part ii of the Indian Penal Code and consequently sentenced him to undergo rigorous imprisonment for two years, on 8-3-1985. The prosecution relied on as many as 11 prosecution witnesses. ( 4 ) THE learned Sessions Judge, on examination and appreciation of the evidence, convicted the accused for the offence punishable under Section 304 part ii of the Indian Penal Code and consequently sentenced him to undergo rigorous imprisonment for two years, on 8-3-1985. Being aggrieved by the said order of conviction and sentence recorded by the learned Sessions Judge, in the said trial, the original accused has, now come up before this Court, challenging its legality and validity, under Section 374 of the Code. ( 5 ) LEARNED Counsel Miss Shah for the appellant-original accused, firstly, contended that the prosecution has failed to prove the quilt of the accused beyond reasonable doubt. She has, seriously, criticised the conviction recorded against the accused for the offence punishable under Section 304 Part II of the Indian penal Code. According to her contention, the deceased must have fallen down in the well during the course of the scuffle and there was no intention on the part of the accused to push the deceased down in the well. In short, her contention is that there was an accidental fall and the name of the accused was falsely narrated by the deceased in his dying declaration. Therefore, she has contended that the appellant-original accused is entitled to acquittal. The aforesaid contention is, totally, meritless in the light of the facts emerging from the record of the present case. The views adopted and the ultimate conclusion recorded by the Trial Court are, fully, justified. After having examined the entire evidence on record, it becomes quite evident that the prosecution has, successfully, established the complicity of the accused beyond any shadow of doubt. ( 6 ) THE learned Sessions Judge has also, rightly, placed reliance on the dying declaration recorded by the Executive magistrate. The incident in question of giving push by the accused to the deceased at the joint well occurred at about 4 o clock in the early morning. The deceased had sustained serious injuries. He was taken out of the well and shifted to the hospital. The evidence of the prosecution is supported by the medical evidence of prosecution Witness No. 2, Dr. Shamaldas M. Adhwan, who is examined at Ex. 10. He was working as Medical officer, Civil Hospital, Palanpur. The medical certificate is produced at Ex. 11. He was taken out of the well and shifted to the hospital. The evidence of the prosecution is supported by the medical evidence of prosecution Witness No. 2, Dr. Shamaldas M. Adhwan, who is examined at Ex. 10. He was working as Medical officer, Civil Hospital, Palanpur. The medical certificate is produced at Ex. 11. The dying declaration was recorded by the Executive Magistrate, on the same day, at about 8. 45 a. m. The injured succumbed to the injuries at about 11 p. m. on the same day. ( 7 ) THE Executive Magistrate, P. W. No. 3 - U. M. Vadnathani, is examined, at ex. 18. He was called upon by the police with a yadi, which is produced, at Ex. 19, at about 8. 15 a. m. on the same day. He visited the hospital within ten minutes after he was summoned. He verified from the medical officer concerned about the physical and mental state of health of the deceased. The deceased was conscious and he was mentally and physically fit to give his rational statement. It is very clear from the evidence of the Executive magistrate and the medical officer that the dying declaration was recorded by the Executive Magistrate after it was certified by the medical officer that the injured was in a fit condition, physically and mentally, to give his rational statement. ( 8 ) THE dying declaration was recorded by the Executive Magistrate very soon after the occurrence of the unfortunate incident and it was written as narrated by the deceased. There is no reason to discard the testimony of the Executive magistrate, who is an independent witness. The dying declaration is a statement by a person as to cause to his death or as to any of the circumstances resulting in his death and it becomes relevant under Section 32 (1) of the Indian executive Act in a case in which the cause of death of that person comes into question. It is very clear from the evidence on record and from the post-mortem examination report that the deceased had succumbed to the injuries sustained by him on account of the fall due to push in the well, the author of which was accused. No doubt, it is true, that the dying declaration is not a deposition in court and is neither made on oath nor in the presence of the accused. No doubt, it is true, that the dying declaration is not a deposition in court and is neither made on oath nor in the presence of the accused. It is, therefore, not tested by cross- examination on behalf of the accused. But a dying declaration is admitted in evidence by way of an exception to the general rule against the admissibility of hearsay evidence, on the principle of necessity. The conviction can also be founded upon the dying declaration if it is found truthful and trustworthy. Neddless to mention that greater solemnity is attached to the words of a dying man because a person on the verge of death is not likely to tell lies or to concoct a case so as to implicate an innocent person. However, the Court should always be careful and cautious while appreciating and examining such a statement and to see that the statement of the deceased is not influenced by any extraneous sources and is untainted or free from tutoring or prompting. The courts must also be satisfied that the deceased was in a fit state of mind to make rational statement after he had a clear opportunity to observe and identify his offender. Having once found by the court that such a statement is truthful and trustworthy, even conviction can also be based on the sole dying declaration. This proposition of law is no longer in controversy. ( 9 ) IN the present case, the dying declaration, Ex. 20, was recorded by the executive Magistrate, on the day at about 8. 45 a. m. Undoubtedly, it goes to show that it was the accused and nobody else had pushed the deceased in the well which resulted into his serious injuries. There was no reason for the deceased to falsely implicate the present appellant/accused and let off the culprit. Not only that, in view of the evidence on record, it cannot be contended that the deceased had an accidental fall in the joint wall because of his old age. Therefore, the contention that the name of the accused is falsely narrated by the deceased out of animosity, cannot be accepted even for a moment. Not only that, in view of the evidence on record, it cannot be contended that the deceased had an accidental fall in the joint wall because of his old age. Therefore, the contention that the name of the accused is falsely narrated by the deceased out of animosity, cannot be accepted even for a moment. ( 10 ) HAVING regard to the facts and circumstances emerging from the evidence on record and the overall picture emerging from the facts and circumstances, the ultimate conclusion of the learned Sessions Judge in passing the order of conviction for the offence punishable under Section 304 Part II of the Indian Penal Code is quite just and reasonable and is required to be confirmed. Therefore, the first contention raised by the learned Counsel Miss Shah for the appellant/accused is rejected, being meritless. ( 11 ) NEXT, obviously, it leads to the appreciation of the quantum of sentence. Miss Shah, learned Counsel for the appellant/accused, has, alternatively, contended that the order of sentence of rigorous imprisonment for two years is very harsh and excessive in the circumstances of the present case. According to her contention, the accused has already undergone imprisonment for 15 days. However, she has contended that it is a fit case, wherein, the accused should be accorded the benefit of probation. Section 304 Part II of the Indian Penal code prescribes punishment for culpable homicide not amounting to murder. According to this section, the accused can be sentenced for imprisonment of either description for a term which may extend to ten years, or with fine, or with both. Alternatively, her contention is that the substantive sentence should be reduced to the period of imprisonment undergone while awarding reasonable amount of fine. ( 12 ) NO doubt, the offence committed by the accused is a serious one. However, that is not all. The incident in question occurred on 9-4-1984. So more than eight years period has expired. The accused is more than 60 years old at present. ( 12 ) NO doubt, the offence committed by the accused is a serious one. However, that is not all. The incident in question occurred on 9-4-1984. So more than eight years period has expired. The accused is more than 60 years old at present. Having regard to the peculiar facts and circumstances, the manner and mode in which the unfortunate incident occurred and the personal circumstances of the accused coupled with the fact that more than eight years time has elapsed in between, ends of justice will be satisfied if the order of substantive sentence of two years rigorous imprisonment is reduced to the period of imprisonment undergone and, the sentence of fine of rs. 8,000 is awarded and in default, to undergo rigorous imprisonment for six months. ( 13 ) HAVING regard to the facts and circumstances narrated hereinbefore and considering the totality of the circumstances emerging from the record of the present case, the conviction of the accused for the offence punishable under section 304 Part II of the Indian Penal code is confirmed. However, the impugned order of substantive sentence of rigorous imprisonment for two years for the aforesaid offence is quashed while imposing the sentence of fine of Rs. 8,000 (rupees eight thousand of only) and, in default, to undergo rigorous imprisonment for six months. The amount of fine, if paid by the accused, shall be paid to the widow of the deceased, P. W. 6, Huribehn Aljibhai, and if she is not alive, to the heirs of the deceased on due verification by the Sessions Court, in view of the provisions of Section 357 of the Code. The Appeal stands allowed to the aforesaid extent only. ( 14 ) LEARNED Counsel for the accused at this stage requests that the accused may be given 8 weeks time for making payment of the fine imposed by this Court in this appeal. Considering the facts and circumstances, the accused is granted 8 weeks time for the payment of fine of rs. 8,000/ -. Appeal partly allowed. .