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2001 DIGILAW 75 (GUJ)

KAMALABEN W/o GOVINDBHAI B. SHARMA v. STATE

2001-02-06

C.K.BUCH, H.H.MEHTA

body2001
C. K. BUCH, J. ( 1 ) THE appellant -lady Kamlaben wife of Govindbhai Bababhai Sharma has preferred this appeal under Sec. 374 of Code of Criminal Procedure, 1973 and has challenged the judgment and order of conviction and sentence holding her guilty of the offence punishable under Sec. 302 of I. P. C. The learned Additional Sessions Judge, District Kheda at Nadiad at the end of the trial of Sessions Case No. 82 of 1990 convicted the appellant under impugned judgment dated 16th May, 1992, and has imposed punishment of life imprisonment and fine of Rs. 500. 00 and in default of fine, one month R. I. ( 2 ) TO appreciate the grievances of the appellant for the verdict recorded by the lower court vis-a-vis the case of the prosecution, we would like to state case of prosecution in brief. ACCORDING to the prosecution, the appellant, (hereinafter referred to as the accused), is the step -mother of deceased Rasila. Family of the accused and the deceased were residing in village Pathavat (Bar Muvada) of Taluka : Mahemedabad. After the death of the mother of deceased Rasila and defence witness Meena, father Govindbhai Bababhai Sharma remarried with the accused. Meenaben and deceased Rasila were given in marriage but as the deceased Rasila was young, she was not sent to her in-laws place till the date of the incident. The incident had occurred on 11th of March, 1990. On the next day of Holi, elder sister of deceased named Meena and her husband Kantilal were in the house where the incident had occurred. On full-moon day of month of Falgun i. e. Holi, accused, defence witness Meena and her husband along with others had gone to Dakor for pilgrimage and had returned before the incident. During their visit to Dakor, deceased Rasila had gone to village Jamani situated in Mahemedabad Taluka itself, the village of her real maternal uncle, and had met her maternal uncle, aunt and other family members. As she was asked to return for some reason, she had returned with his cousin brother Vijay to village Pathavat on that very day. According to the prosecution, on 11th of March, at about 7-00 a. m. , accused Kamala called deceased Rasila on Vada land, land adjacent to their residential house and accused poured kerosene from jug popularly known as "lota" on deceased, and set a fire by match-stick. According to the prosecution, on 11th of March, at about 7-00 a. m. , accused Kamala called deceased Rasila on Vada land, land adjacent to their residential house and accused poured kerosene from jug popularly known as "lota" on deceased, and set a fire by match-stick. Deceased extinguished the fire by rolling on and brushing with the earth and thereafter she came in the house and informed his brother-in-law (brother-in-law Kantilal) i. e. husband of elder sister defence witness Meena about burns injuries sustained by her. In turn, father and Meena who were also informed about the incident, were informed about burns injuries. Father of deceased Rasila took Rasila to Shardaben Hospital situated in the city of Ahmedabad and she was admitted in the Hospital as Indoor Patient. Police was informed by R. M. O. of the Hospital about admission of Rasila and the Police Inspector of Shaher Kotada Police Station, Mr. Raghubha Prabhatsinh Zala rushed to the hospital and recorded the complaint of injured Rasilaben. Police also arranged to record the Dying Declaration through the Executive Magistrate by necessary Yadi. After obtaining the endorsement from the concerned Doctor, Yadi was sent to the Executive Magistrate, but as for a long period of time, Police was not able to arrange for the Executive Magistrate. The Chief Medical Officer was asked to record the Dying Declaration of Rasila. According to the prosecution, the responsible Medical Officer had recorded the Dying Declaration in presence of another Dr. Mr. Sheth who put up an endorsement as to the consciousness of Rasila on the statement being recorded by in charge Doctor of the Hospital. Ultimately, Rasila, during her treatment on 12th of March, 1990 at about 11-15 P. M. succumbed to the injuries. ( 3 ) INITIALLY, offence was registered with Shaher Kotada Police Station but the F. I. R. was transferred to the concerned Police Station under whose jurisdiction the incident had occurred and the Mahemedabad Police Station had registered the offence against the accused. On the death of Rasila, graver offence punishable under Sec. 302 of the Indian Penal Code was registered. After arrest and investigation of the crime, Police chargesheeted the appellant. On the death of Rasila, graver offence punishable under Sec. 302 of the Indian Penal Code was registered. After arrest and investigation of the crime, Police chargesheeted the appellant. The accused, on committal, was tried by the learned Additional Sessions Judge, Kheda District at Nadiad and at the end of the trial, the learned Additional Sessions Judge found the accused guilty of the offence under Sec. 302 of the I. P. C. and was imposed imprisonment for life and fine as stated above. ( 4 ) THE appellant has challenged the order of conviction and sentence on various grounds mentioned in the memo of appeal, but the Learned Counsel appearing for the accused Mr. Anandjiwala has restricted his arguments on some major grounds advanced before us. ( 5 ) ACCORDING to Mr. Anandjiwala, the trial Court has grossly erred in accepting the evidence of Police Inspector Mr. Zala Ex. 16 and Dying Declaration Ex. 17 as a trustworthy pieces of evidence. While enlarging arguments, Mr. Anandjiwala has pointed out certain infirmities in the method of recording the Dying Declaration, genuineness of the statement made by the deceased and procedural irregularities reflected on record and by pointing out physical condition of the victim Rasilaben, it is argued that looking to the nature and number of percentage of burns on the body of Rasilaben, she would not be physically fit to state entire incident in somany words as Doctor himself has mentioned in the endorsement, while putting the endorsement on Police Yadi that the patient is very serious. It is also argued that the deceased Rasila, in absence of cogent evidence of Dr. Sheth who has put the endorsement on Police Yadi as well as on the Dying Declaration allegedly recorded by the Chief Officer of Shardaben Hospital, would not be in fit state of mind. The trial Court ought to have held that in absence of evidence of Dr. Sheth, it would not be justified to say that the deceased Rasila was in fit state of mind at the time when she gave her statement to Police Sub Inspector Mr. Raghubha. It is also argued that it is in evidence that P. W. Kokilaben -maternal aunt of deceased Rasila was in the hospital from the very beginning and she had ample opportunity to influence Rasila. Raghubha. It is also argued that it is in evidence that P. W. Kokilaben -maternal aunt of deceased Rasila was in the hospital from the very beginning and she had ample opportunity to influence Rasila. It is also pointed out that there is sufficient evidence on record to show that the relations of the family members of Kokilaben and the accused were strained and this witness had an adverse interest,and therefore, she might have been tempted to tutor the deceased Rasila. So the statement recorded by the Police or anybody, the plain reading itself suggests that the statement must be under some influence or tutoring. By referring the provision of Sec. 32 of the Indian Evidence Act and certain portion of various decisions of the Apex Court, Mr. Anandjiwala has submitted that totality of evidence available on record clearly indicates that the trial Court ought not to have convicted the accused only on one statement at Ex. 17 and the deposition of Police Sub Inspector Mr. Raghubha in absence of satisfactory and conclusive corroboration. If the Dying Declaration is found to be trustworthy, there may not be any corroboration, but according to him, the statement Ex. 17 cannot be put in that category. There was an ample scope for the prosecution to lead corroborative evidence by examining a number of witnesses viz. Kantilal the husband of deceased Rasilas sister Meenaben, witness Meenaben who has been examined by the defence side as the prosecution had opted to drop her, the father of the victim Rasilaben, Doctor who admitted Rasila in the hospital who is supposed to record the history in the case papers, Medical Officer who had recorded the statement i. e. Dying Declaration at the request of Police and R. M. O. of Shardaben Hospital who had intimated Out duty Police Constable about admission of Rasila in the hospital. Failure on the part of the prosecution in not examining these witnesses goes to the root and merits of the case. The prosecution could have examined atleast some of these witnesses. The conduct of the victim, according to Mr. Anandjiwala, is found to be unnatural and the learned trial Judge has not considered the effect of it while appreciating trustworthiness of the statement made by Rasila before the Police Sub Inspector Mr. Raghubha. A conflicting version in the Dying Declaration made by Rasila is also not considered in proper perspective. The conduct of the victim, according to Mr. Anandjiwala, is found to be unnatural and the learned trial Judge has not considered the effect of it while appreciating trustworthiness of the statement made by Rasila before the Police Sub Inspector Mr. Raghubha. A conflicting version in the Dying Declaration made by Rasila is also not considered in proper perspective. Surmises in eliminating some part of the prosecution evidence made by the trial Court has resulted into a grave error which needs rectification. In the judgment, the trial Court has not appreciated the fact that initially victim Rasila had tried to implead three persons as accused in the offence and in a couple of minutes or hours, by exonerating her real father and sister, impleaded the present accused only when P. S. I. Mr. Raghubha recorded her statement in the hospital. Absence of endorsement of the Doctor in the hospital in the complaint ought to have been treated as infirmity before accepting the complaint as Dying Declaration. As it was possible for Mr. Zala to obtain such certificate only because Dr. Sheth had left this country for long or for ever would not help the case of the prosecution. On the contrary, non-examination of Dr. Sheth and formal proof of endorsement made by Dr. Sheth given by the prosecution after examining the other Doctor who was serving with Dr. Sheth at the relevant point of time has resulted into serious prejudice to the accused. The learned trial Judge has rightly exhibited only endorsement part proved by Dr. V. K. Shah and not subsequent part recorded by other Doctor of the hospital. It seems that according to Mr. Anandjiwala, though the learned trial Judge has not exhibited the statement, the nature of statement recorded by the Doctor must have influenced the mind of the learned trial Judge, and therefore, in the concluding paragraphs of the judgment, the learned trial Judge has given more waitage than required to the statement Ex. 17. According to Mr. Anandjiwala, it is wrong to say that the statement of Rasila is consistent with the story put forward by the prosecution. It is wrong to say that there is no inconsistency and the conduct of the deceased does not make the statement doubtful and influence. The prosecution case solely rests on the statement Ex. 17 and the deposition of Police Sub Inspector Mr. Raghubha Zala. It is wrong to say that there is no inconsistency and the conduct of the deceased does not make the statement doubtful and influence. The prosecution case solely rests on the statement Ex. 17 and the deposition of Police Sub Inspector Mr. Raghubha Zala. Nature of evidence Ex. 17 and deposition of P. S. I. Mr. Raghubha Zala cannot corroborate each other. The case of the prosecution stands on one leg i. e. statement Ex. 17 as the Police Sub Inspector is mere recorder of the statement. So oral version of Mr. Zala cannot be said to be other corroborative statement of other independent witness and the trial Court ought to have sought for particulars about trustworthy corroboration and in absence of such corroboration, the accused appellant should have been acquitted. During the course of arguments, Mr. Anandjiwala has placed reliance on various judgments which we would like to refer hereinafter but mainly he has pointed out the ratio established by this Court in Criminal Appeal No. 588 of 1988 (Coram: J. M. Panchal and H. R. Shelat, JJ) decided on 25th April, 1996, wherein this Court has considered more than one Dying Declarations, inconsistent to each other. It is submitted that the ratio established by this Court in the judgment referred to above is squarely applicable to the facts of this case. When Dr. V. K. Shah was examined by the prosecution, he had no case papers on the day of his deposition in the Court. However the facts narrated as history given by the patient was not brought on record by the prosecution for the reasons best known to the learned Assistant Public Prosecutor in the trial Court. There was ample proof for the prosecution to show that the wording reflected in Police Yadi Ex. 19 and Ex. 25 is not consistent with the history given by the patient and the same is consistent with the complaint given by Rasilaben to Police Sub Inspector Mr. Raghubha. It is also argued that in view of the decision of the Apex Court, reported in AIR 1999 SUPREME COURT 3255, DANDU LAXMI REDDY vs. STATE OF A. P. , the trial Court ought not to have accepted Ex. 17 as a reliable piece of evidence. So the conviction of the appellant accused on any count is erroneous, and therefore, requires to be set aside. 17 as a reliable piece of evidence. So the conviction of the appellant accused on any count is erroneous, and therefore, requires to be set aside. ( 6 ) WHILE concluding the arguments, Mr. Anandjiwala has also tried to point out that the learned trial Judge has not considered the defence plea in proper perspective and in light of the evidence available on record. The accused is supposed to show the probability. The evidence of Doctor who has performed autopsy is of the type which suggests that nature of burns found on the body of the deceased can be homicidal or suicidal death. ( 7 ) BY reading relevant part of panchnama of scene of offence and inquest report, it is also argued that circumstance of scene of offence recorded in the Panchnama does not support the theory of homicidal death. On the contrary, recovery of match-box found from the spot of incident and the Jug smelling with kerosene also found from Vada itself suggests suicide. It was otherwise possible for the accused to play with the spot of incident. The conduct of the accused immediately after alleged incident is normal and the same is not inconsistent with his innocence. This part is also not taken into account while accepting the Dying Declaration Ex. 17. ( 8 ) STEP-MOTHERLY relations with the deceased and the accused is double edged. As and when the real sister Meena had advanced the theory put forward by the accused and when the version of the accused is supported by the witness dropped by the prosecution defence ought not to have been ignored by the trial Court by some cursory remarks. Evidence of defence witness Minaben and the fact that deceased Rasilaben had gone to village Jamani at her real maternal uncles house on the early day and was sent back immediately by them with his cousin brother Vijay might have created a great frustration in the mind of the deceased Rasilaben. The atmosphere under which the deceased Rasila was living is also indirectly reflected in the evidence on record. The Doctor who has performed autopsy has stated in his evidence that in particular socio economy atmosphere, the females are committing suicide or tempting to cause suicidal injuries, especially they are setting to fire causing burns injuries. The atmosphere under which the deceased Rasila was living is also indirectly reflected in the evidence on record. The Doctor who has performed autopsy has stated in his evidence that in particular socio economy atmosphere, the females are committing suicide or tempting to cause suicidal injuries, especially they are setting to fire causing burns injuries. The finding of the learned trial Judge, being not in accordance with law and facts available on record, requires to be set aside. ( 9 ) THE learned APP Mr. K. C. Shah, on the other hand had submitted that the finding of the learned trial Judge is correct and the same is in accordance with law. Dying Declaration Ex. 17 is basically a complaint under Sec. 154 of the Criminal Procedure Code. When the Police Sub Inspector Mr. Raghubha Zala who has recorded her statement by way of complaint, was not aware of the fact that ultimately the victim would die and the complaint would be treated as Dying Declaration under Sec. 32 of the Indian Evidence Act. He was also not aware that attempt of securing presence of Executive Magistrate and the statement recorded by him would not be possible. So absence of endorsement of the Doctor in the complaint Ex. 17 cannot be treated as infirmity. The statement recorded by Dr. Zala is in form of complaint, and therefore, obviously the same would not be in Question Answer Form. There is no reason for the victim Rasila to involve the accused as she was brought up by the accused herself. Minaben being a lady under the influence of father of the victim Rasila has come forward to support the case of defence side. So the trial Court has rightly rejected her evidence. According to Mr. K. C. Shah, a young girl normally would not commit suicide in the early morning at 7-00 A. M. because on that day immediately prior to the incident, nothing had happened. Only one truthful Dying Declaration is sufficient to convict the accused as per settled legal position and the learned trial Judge has concluded that Ex. 17 is trustworthy piece of evidence and there is nothing wrong in holding the accused guilty of the offence when ex. 17 is found trustworthy. In Police Yadi, three names are mentioned but the Police Sub Inspector Mr. 17 is trustworthy piece of evidence and there is nothing wrong in holding the accused guilty of the offence when ex. 17 is found trustworthy. In Police Yadi, three names are mentioned but the Police Sub Inspector Mr. Raghubha Zala had no interest in eliminating names of two persons namely the father and sister of Rasilaben. The officer who has recorded the complaint is an officer of other Police Station, having no connection with the investigating agency. So his evidence should be considered as evidence of independent person, and the learned trial Judge has rightly accepted his evidence. Merely because Lota and match-box were found at the scene of offence, the presumption of suicidal burns cannot be raised. The accused has failed in explaining the circumstances as to why she had not even gone to the hospital. Merely because, the deceased has not raised shouts for help or nonresistance by her, when the Kerosene was poured on her would not itself make the statement Ex. 17 doubtful. Hostility of Kokilaben enlarged by defence side is not satisfactorily proved. Merely because, Govindbhai had married her second time, she would not involve the accused in a serious offence like murder. On the contrary, evidence suggests that there was no scope for Kokilaben to tutor or influence Rasila as father Govindbhai was very well present in the hospital. In the beginning, he has taken Rasila in the hospital in a Tempo and he had returned on the next day. By that time, the complaint was already recorded. So the statement Ex. 17 has no element of tutoring or influence of P. W. Kokilaben. The fact admitted by Minaben during her cross-examination that on return, her father informed that Rasilaben has named the present accused responsible for the injuries sustained by her is very much relevant. So Govindbhai the father of Rasila was aware from the beginning about the role played by the accused as informed to the family members that Rasila has named the accused even before the Police. According to Mr. Shah, there is no involvement of father Govind and sister Meena in the Dying Declaration. Non-examination of Govindbhai should be ignored because he would not support the case of the prosecution as being a husband of the accused. Non-examination of Kantilal also would not make the statement Ex. 17 doubtful. According to Mr. According to Mr. Shah, there is no involvement of father Govind and sister Meena in the Dying Declaration. Non-examination of Govindbhai should be ignored because he would not support the case of the prosecution as being a husband of the accused. Non-examination of Kantilal also would not make the statement Ex. 17 doubtful. According to Mr. Shah, there is no evidence on record that deceased herself has given three names before the hospital authority. The endorsement on the Police Yadi and other endorsements under unproved Dying Declaration helped the surrounding circumstances and the learned trial Judge has rightly held that at the relevant point of time, the deceased was in fit state of mind and fully conscious. Normally, a girl would not implicate the mother in a serious offence like murder. According to Mr. Shah, if the complaint is believed to be a genuine and recorded correctly, then the accused can be convicted solely on this ground and the learned trial Judge has done the same thing. There is no perversity in the judgment. No error which can be termed as material, factual or legal, is found. There was no need for the trial Court to evaluate the second Dying Declaration as the same was not proved and brought on record. Absence of evidence as to the quarrel took place between the accused and the victim Rasila after her return from village Jamani helps the case of the prosecution that there was no reason for Rasilaben to commit suicide. In absence of probable cause of suicide, the trial Court has rightly appreciated the medical evidence and nature of injuries found on the body of the deceased. Endorsement of the Doctor clearly suggests that from the beginning, say of the victim Rasila was that as she was inflicted with injuries and the burns were, therefore, referred to as homicidal by the Doctor. It was not possible for the trial Court to ignore this aspect and therefore the judgment of conviction must be sustained and appeal should be dismissed. Conduct of victim narrated as normal by the learned Counsel for the appellant is not required to be given any weightage because a girl who is inflicted with burn injuries by her own mother may act abnormally. Non-raising of shouts for help by the victim alone would not nullify the legal effect on the statement Ex. 17. Conduct of victim narrated as normal by the learned Counsel for the appellant is not required to be given any weightage because a girl who is inflicted with burn injuries by her own mother may act abnormally. Non-raising of shouts for help by the victim alone would not nullify the legal effect on the statement Ex. 17. In nutshell, he has prayed for dismissal of the appeal. ( 10 ) AFTER going through the judgment of the trial Court and the relevant documentary as well as oral evidence led by the prosecution, it is clear that case of the prosecution solely rests on Dying Declaration made by deceased Rasilaben Ex. 17. It is not a matter of dispute that the Officer who recorded the complaint is examined and the complaint, on account of death of Rasilaben, is treated as Dying Declaration. The same is proved by the recorder. Evidentiary value of Dying Declaration and the alleged infirmity brought to the notice by the learned Counsel of the appellant shall have to be appreciated. However at this juncture, it is important to note that the prosecution, at the stage of investigation, had tried to get the Dying Declaration recorded by an Executive Magistrate of City Ahmedabad. All reasonable steps seem to have been taken by the Investigating Agency to secure presence of an Executive Magistrate for the purpose when the Investigating Officer found that the death is reaching fast to the victim, as a last resort, a Yadi was sent to R. M. O. to take and record the Dying Declaration of victim Rasilaben. In more than one cases, Apex Court has observed that when the death is reaching fast to the patient, it is the obligatory on the part of the Doctor to record the Dying Declaration. In this case, responsible Doctor was contacted by the Investigating Agency and the Dying Declaration was recorded in presence of Doctor who was giving the treatment to victim Rasilaben. However the prosecution has failed in proving declaratory statement recorded by the concerned Doctor of Shardaben Hospital. Non-examination of any of these two Doctors namely the Doctor who has recorded the Dying Declaration and the Doctor who has put the endorsement Ex. 26 below the Dying Declaration and also in the Police Yadi, have enhanced the infirmity of the prosecution case. Non-examination of any of these two Doctors namely the Doctor who has recorded the Dying Declaration and the Doctor who has put the endorsement Ex. 26 below the Dying Declaration and also in the Police Yadi, have enhanced the infirmity of the prosecution case. So examination of both these Doctors as witnesses or atleast one of them would be very relevant while appreciating the strength and inherent credibility of the statement Ex. 17. ( 11 ) SINCE the case of KAUSHAL RAO Vs. STATE OF BOMBAY, reported in AIR 1958 SC 22 , it is accepted principle of law that a Dying Declaration should be subject to very close scrutiny. We would like to quote the observation of the Apex Court. In case of KAUSHALRAO Vs. STATE OF BOMBAY, in Para 17 of the judgment, Apex Court has observed as under:"hence, in order to pass the test of reliability, a dying declaration has to be subjected to a very close scrutiny, keeping in view the fact that the statement has been made in the absence of the accused who had no opportunity of testing the veracity of the statement by cross-examination. But once, the Court has come to the conclusion that the dying declaration was the truthful version as to the circumstances of the death and the assailants of the victim, there is no question of further corroboration. If, on the other hand, the Court, after examining the dying declaration in all its aspects, and testing its veracity, has come to the conclusion that it is not reliable by itself, and that it suffers from any infirmity, then, without corroboration it cannot form the basis of a conviction. Thus, the necessity for corroboration arises not from any inherent weakness of a dying declaration as a piece of evidence, as held in some of the reported cases, but from the fact that the Court, in a given case, has come to the conclusion that particular dying declaration was not free from the infirmities, referred to above or from such other infirmities, as may be disclosed in evidence in that caseon a close scrutiny, if the Court is satisfied that a declaration made by a person as to the circumstances of transaction which is trustworthy, even then without seeking any corroboration, the Court can link the accused with the guilt. Considering the facts of each case, in various cases, various methods of test and scrutiny are applied by Apex Court and this Court. As per example, on some occasion, gravity is considered more than the infirmity and in other case, gravity is considered as the index of truth considering the different set of facts. The details of the statement even are sometimes ignored by the Court and on some occasions, the language of the dying declaration though found lucid and refined, the Courts have not found such declaration with doubt and has convicted the accused for that guilt. So in light of these facts of this case, the dying declaration of deceased Rasila is required to be scrutinized. It is argued before us that the trial Court has failed to scrutinize the statement Ex. 17 in proper perspective and infirmity emerging from various aspects has not been considered at all or the same are given go-bye on surmises. Undoubtedly, P. W. Kokilaben -the real maternal aunt was present in the Shardaben Hospital, where the victim Rasilaben was taken for treatment. Kokilaben is examined by the prosecution merely to prove the motive of the offence and bringing other circumstances prevailing before the alleged crime. Deposition of this witness clearly indicates that the relations between the family of the accused and Kokilaben either were strained or were in the state of terminated relationship. Real sister-in-law i. e. sister of her husband was the first wife of Govindbhai the father of victim Rasilaben and after her death, Govindbhai married with the accused. Both the daughters born during the wedlock of Govindbhai, and sister-in-law of P. W. Kokilaben were brought up by the accused and both were given in marriage but as Rasila was of teens age, she was yet to be sent to her in laws place. There is no cogent evidence or other circumstances available on record under which deceased Rasila got idea to visit her real maternal uncles place after several years either she was illtreated by step-mother or she was feeling confused on other count or there was independent unknown reason which might have led her to have a sympathy and love of real maternal uncle and aunt but it is clear that mitigating and social relations had evaporated since long before even then the deceased Rasila visited the house of her maternal uncle at village Jamani. ( 12 ) IT is in the evidence that even earlier, before 15 to 20 days, Rasilaben had visited the house of her maternal uncle at Jamani. On that occasion, accused had gone to the house of P. W. Kokilaben to fetch Rasilaben but as Rasilaben was not ready to return to her house immediately, the accused had to return leaving Rasila at her maternal uncles place. Thereafter Minaben was sent after two to four days, and she brought back Rasila. Thereafter on the day of Holi, Rasila again went to her uncles house at village Jamani with ornaments etc. So inharmonious relation between accused and deceased Rasila is reflected in the deposition of P. W. Kokilaben. P. W. Kokilaben is a witness who had all sympathy with the deceased Rasila and her evidence suggests that she had an adverse interest against or enimical feelings for the accused. It seems that P. W. Kokilaben had felt that Rasila is treated step-motherly by the accused, and therefore, only Rasila had visited the village Jamani on two occasions, though mitigating and social relations had evaporated much earlier after remarriage of Govindbhai with the accused. We agree that merely because, P. W. Govindbhai was closely related with the deceased or had some enimical feelings with the accused, her evidence should not be viewed with doubt. However the deposition of this witness does not add any strength to the dying declaration which has been considered as well satisfactory evidence is led to connect the accused with the crime. The deceased herself in her dying declaration has not stated anything as to the motive of the crime in detail. So the evidence of Kokila had not carried the case of the prosecution any further, but the presence of this witness Kokilaben at the cot of the deceased Rasila much prior to the statement recorded by Police Sub Inspector, Mr. Raghubha Zala, in view of the above set of facts, is relevant, because while scrutinizing the dying declaration, this Court is supposed to reach a different conclusion that the statement is far from truth or tutoring. Exs. 19 and 25 -the Police Yadis indicate that the deceased Rasila must have named three persons as accused of the offence committed qua herself. How and why three names as culprits had emerged and are being reflected in both these Yadis is not reasonably explained by the prosecution. Exs. 19 and 25 -the Police Yadis indicate that the deceased Rasila must have named three persons as accused of the offence committed qua herself. How and why three names as culprits had emerged and are being reflected in both these Yadis is not reasonably explained by the prosecution. On the contrary, the plain reading of these both Yadis has given rise to argue that while giving the history of the case, deceased Rasila must have named three persons as accused. The fact that P. W. Kokila was informed well in time so that she was able to reach the Shardaben Hospital immediately and in a couple of minutes of admission of victim Rasila in hospital is a circumstance which takes the accused towards innocence, otherwise, there was no reason for the family members of the accused to inform Kokilaben as to the incident occurred and the fact that Rasila is being taken to a particular hospital situated at Ahmedabad. Accused herself must have played some role in informing P. W. Kokilaben at the earliest because as per statement of deceased Rasila, her father was busy in bringing her to the hospital. He had also arranged for a Doctor from nearby village Haladarwas. The anxiety shown by the accused to inform the real maternal uncle and aunt with the help of somebody other than her husband is a possitive conduct on the part of accused and the same cannot be ignored. This conduct shows bonafide on the part of accused and the say of defence witness Meenaben who has supported categorically the defence version on one hand and the constant contact of maternal aunt of deceased Rasila since she was taken to the hospital on the other assums importance. The improvement made by deceased Rasilaben in the basic story disturbs the entire structure of the case of the prosecution. The time taken in implicating more than actual accused persons by modulation or material improvement is always considered important factor at the time of appreciating the case of the prosecution. We do not see any need to quote set of judgments qua this principle, but the act of addition of a number of accused at subsequent stage is always viewed with by the Courts conducting criminal trials. We do not see any need to quote set of judgments qua this principle, but the act of addition of a number of accused at subsequent stage is always viewed with by the Courts conducting criminal trials. Elimination of some of the accused, taking advantage of lapse of time by the complainant or the prosecution witness is also important and should be appreciated with great caution. It seems that initially, father Govindbhai and sister Minaben were implicated in the offence. Even Yadi sent to the Executive Magistrate discloses the names of three accused persons. This Yadi Ex. 25 must have been written after formal recording of complaint. The officer who recorded the complaint has stated in his deposition that he arranged to see that the dying declaration of the victim is recorded by the Executive Magistrate and arranged for Police Yadi for the purpose. Of course, the Yadi was written and sent by one Mr. B. V. Wadekar, First Grade, Police Head Constable (Investigation) of Saher Kotada Police Station, Ahmedabad, but it can be inferred that Yadi must have been sent on the instruction of Police Inspector Mr. Zala as he himself has stated so in the Yadi. It is likely that he must have simply instructed concerned Head Constable to send a Yadi without disclosing the facts revealed in the complaint lodged by the deceased Rasilaben. Yadi Ex. 19 which was written initiation, therefore, does not sound any error. On the contrary, Ex. 25 indicates that there must be something fishy with the Police where three persons were initially named as accused and therefore, the complaint is the altered version. The persons eliminated at the time of giving the complaint to the Police by victim Rasila were kith and kin of Rasilaben. It is said that blood is always thicker, and she continued her allegation qua the accused. We are of the view that this is a case wherein elimination of certain persons as accused should be equated with those cases where addition of accused persons are made by the complainant or the prosecution taking advantage of lapse of some time. It is said that blood is always thicker, and she continued her allegation qua the accused. We are of the view that this is a case wherein elimination of certain persons as accused should be equated with those cases where addition of accused persons are made by the complainant or the prosecution taking advantage of lapse of some time. We agree that where there is a scope of eliminating the persons who are falsely implicated at subsequent stage, the real culprit can be convicted by the Courts, but here in this case, the defence theory is indicative of suicide committed by the victim and not of an accident. So the star question is whether it would be safe to accept the improved version of the prosecution or say of Rasilaben given to the Police Inspector Mr. Zala, the recorder of the complaint. Undisputedly, the accused was a step mother and deceased must have some grievance against the accused, otherwise there was no reason for her to say no for returning to her own house when the accused Kamlaben had gone to village Jamani to fetch the deceased. As discussed hereinabove, the conduct of the accused Kamlaben is also relevant. She might have not thought that she has been named as accused by Rasila. When a girl is taken to hospital in a tempo by the father in the company of some other friends and well-wishers, her going to the hospital with the injured would not have added anything to her innocence. In the same way, her decision to continue to stay at village Pathavat, as four minor children were there with her, cannot be said to be the circumstance inconsistent to her innocence. It is in the evidence that after returning of Govindbhai from Shardaben Hospital, Govindbhai had informed the family members that Rasilaben has involved the accused and named her as the accused even though scene of offence was preserved as it is. If we read the Panchnama Ex. 8, it was possible for Kamlaben to play with the site. No irrational behaviour or abnormal behaviour is noticed by any of the witnesses. So the accused is found consistent qua her conduct. If we read the Panchnama Ex. 8, it was possible for Kamlaben to play with the site. No irrational behaviour or abnormal behaviour is noticed by any of the witnesses. So the accused is found consistent qua her conduct. A girl who is brought up by her till the date of her marriage, on some differences, rushes to her real maternal uncles house might not have liked by herself, may be because of some element of jealousy or frustration, but it would be improper on this count to conclude that she would be tempted to kill a girl who has to stay for some days, weeks or months with her as she was bound to go to her in-laws house. Absence of strong motive is an element which may not help the prosecution when the case is resting on sole piece of evidence, because where the prosecution relies solely on the dying declaration and when there is no other direct and substantial evidence, then the only circumstance can corroborate such declarations. Credibility or infirmity of such declarations depends upon the circumstances available on record where an evidence as to motive plays an important role. Of course, Mr. Shah has argued that infliction of homicidal burns is reflected in the endorsement made by the Doctor and there is absence of cause to commit suicide, but it is time and again said by various Courts that motives are always hidden and it is difficult to prove and in the same way, cause to commit suicide is always hidden in the mind and it is difficult to bring out that cause with a definite piece of evidence. So preponderance of probability plays vital role in such type of cases. If we ignore the later improvement made by Rasilaben while making a statement by way of complaint before the Police Office but the fact remains that she had failed in narrating the cause of incident or the involvement of the accused immediately after the incident before her real sister Minaben or brother-in-law Kantilal to whom she met after the accident within a couple of minutes of incident or to the Doctor who had come to rescue from the village Haldarvas. Opportunity available to the declarant shall have to be considered. Opportunity available to the declarant shall have to be considered. When the victim had an opportunity to unfold the story and if she fails, then her say at subsequent point of time needs strong corroboration and prosecution is bound to explain as to why or under which circumstances the victim had not disclosed the real story at the earliest available opportunity. ( 13 ) IN this case, Rasilaben has failed in disclosing entire incident at the earliest opportunity and her version before the recorder of the complaint is not consistent to the fact reflected in Police Yadis at Exs. 19 and 25, the bare words of the complaint treated as Dying Declaration should not be accepted as gospel truth and piece of evidence worth acceptable without any kind of corroboration. It is not the case that she had said something to Minaben or Kantilal as to the incident. Both these witnesses could have been examined by the prosecution and the prosecution opted to drop both these witnesses. Taking advantage of this situation, Minaben was examined by the defence side. So it is difficult to say that the version of Minaben as defence witness is an afterthought and with a view to help her mother i. e. the accused. Non-examination of Doctor of Haladarwas is also relevant. It is on record that the Doctor had advised to take the victim Rasilaben to the nearest hospital at the earliest. We have reason to believe that he must have so deposed considering the nature of case being medico legal case. A Doctor who is visiting a patient of a medico legal case, unless contrary is brought on record, one can infer that the Doctor must have asked the patient as to how he has sustained a particular injury. So the Doctor of Haladarwas was an independent person available to Rasilaben at the earliest point of time before whom she must have disclosed the real story of the incident. For the sake of argument, if we accept that she might have kept mum and had not responded to the questions put by the Doctor, then this conduct of Rasila will go against the credibility of her subsequent version made before the Investigating Officer. For the sake of argument, if we accept that she might have kept mum and had not responded to the questions put by the Doctor, then this conduct of Rasila will go against the credibility of her subsequent version made before the Investigating Officer. ( 14 ) ABSENCE of other external injuries on the body of the injured other than the burn, is also an important aspect, because, it is the case of the prosecution that the deceased had extinguished the fire by rolling over or brushing her body on the earth. Undoubtedly, incident has occurred in a Vada. So the surface of Vada must cause external injuries on the burning skin. It is difficult to extinguish fire which has caused her body substantially when a highly inflammable liquid like Kerosene is poured. Absence of such injury found on the Post Mortem Notes also indicates that injured has not stated truly or correctly the manner in which the fire was extinguished. According to Rasilaben, other family members namely Minaben, her husband Kantilal, and father Govindbhai were sleeping in the early morning hours of a day, and she informed Kantilal about infliction of the injuries. When she was called by the accused in the Vada, where she was poured with Kerosene, what actually Rasila was doing, is not there on record. One can believe that on instruction of her mother i. e. accused, she might have gone in the Vada land but when the accused had poured Kerosene from Jug (Lota), there was an opportunity to resist this act. Normally, a person who is forcibly poured with Kerosene would resist such act. He may also shout for help atleast when a match-stick was ignited and thrown at him. Unwilling party positively would shout for help when her father, her real sister and brother-in-law were available at a distance of some feet. She would not leave this opportunity to call them for rescue. On the contrary, the case of the prosecution is that she had extinguished the fire quietly, silently and entered the house and informed about the incident to her brother-in-law Kantilal -the husband of Minaben. She was found sleeping on a cot by Minaben after some minutes. This conduct of victim Rasila is indicative on receipt of injury voluntarily and not of infliction by somebody i. e. accused. She was found sleeping on a cot by Minaben after some minutes. This conduct of victim Rasila is indicative on receipt of injury voluntarily and not of infliction by somebody i. e. accused. So the prosecution intends to rely on the statement which was made after her meeting to Kokilaben and after her regular admission in hospital leaving number of members of the family available to her. So even if we ignore the arguments of learned Counsel for the appellant that the deceased was not in fit state of mind or was telling the detailed story in somany words, even then the element of hostility in the mind of Rasila and the doubt, it is there on record that the statement might not be free from the stain of tutoring. It would not be safe to accept the uncorroborated dying declaration Ex. 17. P. W. Kokilaben might not have taught her as to what she had to state or how she should modulate the earlier version to the Doctor at Hospital in detail, but her presence in the hospital and her expression of all sympathy towards Rasila reminding strained relations between her mother and the victim can bring the result which is there on record. Even frustrated state of mind is able to bring the disastrous result. We are of the view that it is likely that accused Kamlaben was taken to surprise when she was told for the first time that she was named as accused and a person responsible for infliction of burn injuries. So the finding of the learned trial Judge that the dying declaration Ex. 17 is a trustworthy piece of evidence and conviction can be based on the sole statement, is an erroneous finding. The error is committed because entire set of evidence is not appreciated in proper perspective. The other legal submission made by the learned Counsel for the appellant Mr. Ananjiwala that the F. I. R. should have an attestation of a Doctor, otherwise it loses the sanctity of dying declaration, is not acceptable, because there is consistent evidence of Police Sub Inspector Mr. Zala and the manner of his recording the complaint. When the Police Sub Inspector Mr. Zala recorded the statement, he might not have been aware that this complaint would get the status of a dying declaration. Zala and the manner of his recording the complaint. When the Police Sub Inspector Mr. Zala recorded the statement, he might not have been aware that this complaint would get the status of a dying declaration. Similar point was raised before the Apex Court in case of JAI PRAKASH AND OTHERS vs. STATE OF HARYANA, reported in AIR 1999 SUPREME COURT 3361, and the Apex Court has observed in Para 3 and 4 of the judgment as under: Para 3:"in our opinion, the submission made by the learned counsel is misconceived. As Sushma was taken to the hospital with burns, the hospital authorities informed the police. The police after going there, recorded the statement of Sushma. It was then in the nature of a complaint and was later treated as a dying declaration because she died. Whether police could have recorded a regular dying declaration or not was a matter for cross-examination of the Investigating Officer. In absence of such cross-examination, it cannot have any bearing on the correctness or otherwise of the statement recorded on 7/10/1990. The said statement was sent to the police station at about 1. 30 p. m. and the FIR was recorded at 3. 30 p. m. A copy of the said FIR was received by the Magistrate on 8/10/1990 at about 10. 00 a. m. Therefore, there is no scope for doubting genuineness of that statement in this casepara 4:"it was next contended that no weight ought to have been given to that statement as it was not attested by the doctor and no endorsement was made thereon to show that the statement was made by Sushma while she was mentally and physically fit to make such a statement. This submission is also misconceived as it proceeds on an erroneous assumption that what was recorded by the police officer was a dying declaration. As he recorded a complaint, it was not necessary for him to keep any doctor present or obtain any endorsement from himso absence of endorsement of a Doctor below the complaint would not have otherwise helped the defence side even before the trial Court. Merely because, there is no specific mention as to the time of recording of the complaint, the statement would not become doubtful. The case cited by Mr. Merely because, there is no specific mention as to the time of recording of the complaint, the statement would not become doubtful. The case cited by Mr. Anandjiwala reported in Jai Prakash and others (supra) would not apply to the facts of this case, because in that case, even the signature of deponent was absent. Capability of declarant to make declaration was also found doubtful. Here, the version of Dr. Rathindra Balasaheb Deshmukh Ex. 12 indicates that at the time of recording of statement Ex. 17, patient could be in fit state of mind. The endorsement of Dr. Sheth is proved by other Medical Officer i. e. Dr. V. K. Shah. Though the evidence of Dr. V. K. Shah has not carried the prosecution case any further but the genuineness of the endorsement is established satisfactorily by the prosecution. So there is enough certification that Rasila was conscious and must have been able to state the things which are in her mind. It is not the case of the defence side that under the influence of certain drug, she was not able to state anything but she must be in deep slumber. This part of argument also would not help the appellant. ( 15 ) WE are aware of the fact that "falsus in Uno, falsus in omnibus" is the principle not acceptable in our criminal jurisprudence. Therefore, on first occasion, the victim named three persons as responsible for the crime and on second occasion, she named only one. It can be argued that at later point of time, the strength of truth might have prevailed, but at the same time, true things remain (1) this would be established on surmises or presumption and it is risky that the second statement is the truth and nothing else had happened, and (2) the complainant had not attempted to bring on record the earliest version of the deceased. Non-production of treatment papers and non-examination of Kantilal and Doctor from Haladarwas or even the father goes to the root and the strength of prosecution case. The case of the prosecution as it stands on its own leg, presumption provided by law and assumption which could be drawn on the strength of undisputed trustworthy evidence only can play some role. Personal inferences and surmises, conjectures or attempt to reconstruct the case of the prosecution cannot add strength in the basic case of the prosecution. The case of the prosecution as it stands on its own leg, presumption provided by law and assumption which could be drawn on the strength of undisputed trustworthy evidence only can play some role. Personal inferences and surmises, conjectures or attempt to reconstruct the case of the prosecution cannot add strength in the basic case of the prosecution. On occasions, Apex Court has criticized the Court which has taken great strain to believe certain part of depositions or dying declarations with a view to conclude positively in favour of the prosecution. The trial Court ought not to have ignored that severe bodily pain would hamper the words and sentences. This is a case where gravity of dying declaration could have been considered as a relevant fact. Detailed statement eliminating names of some of the persons earlier, whether brings any element of suspicion is not considered at all. According to us, the statement Ex. 17 which is the backbone of finding of the conviction is not free from suspicion, and therefore, the accused atleast could have been given benefit of doubt by the trial Court. Even when there is a case of fifty fifty percent, accused deserves benefit of doubt and that is the rule. So we are not recording clear acquittal of the accused but we are inclined to give benefit of doubt and reverse the finding of conviction. ( 16 ) IN view of the above, the judgment of conviction and sentence is set aside and the appellant accused is acquitted of the charges levelled against her. The appeal is, therefore, allowed. The impugned judgment dt. 16th May, 1992 passed by the learned Additional Sessions Judge, Kheda at Nadiad in Sessions Case No. 82 of 1990 convicting the accused appellant-Kamlaben wife of Govindbhai Bababhai Sharma for the offence under Sec. 302 of Indian Penal Code is hereby quashed and set aside. The appellant accused is hereby acquitted of the charge levelled against her. Bail bond and personal bond stand cancelled. Fine, if paid, shall be refunded back to the appellant accused. .