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2009 DIGILAW 539 (GUJ)

Harivadan Ambalal Bhatiya v. State of Gujarat

2009-08-07

H.B.ANTANI, J.R.VORA

body2009
Judgment J.R. Vora, J.—Instant Appeal is directed under Section 374 of the Code of Criminal Procedure against the judgment and order rendered by Additional Sessions Judge and Fast Track Court, Modasa, on 26th of June, 2003, in Sessions Case No. 98 of 2002 and present appellant being accused of the said Sessions Case and was charged for the offences punishable under Sections 498-A and 302 of the Indian Penal Code, came to be convicted by the Trial Court for both the charges and was sentenced to undergo imprisonment of one year and to pay fine of Rs. 500/- in default to undergo simple imprisonment of three months for the offence punishable under Section 498-A of the Indian Penal Code and was also sentenced to undergo imprisonment for life and to pay fine of Rs. 500/- in default to undergo simple imprisonment of three months for the offence punishable under Section 302 of the Indian Penal Code. 2. As per the prosecution case, deceased in the incident is Sonalben and wife of the accused - appellant. The marriage between the two took place eight years before the incident and since the marriage Sonalben was staying with her husband at Pratapnagar, Vadodara. Thereafter, deceased Sonalben and accused, after three years of marriage, came to Modasa and started staying in a rented house of one Dilipbhai Panchal because accused was working as barber in one hair cutting saloon owned by one Harivadan Rajubhai Bhatiya. Out of this wedlock, they had two issues - both are sons, named as Mehul, aged about 4 years and Keval, aged about 2 and half years at the time of incident. After the marriage, for about a year, married life was happy and thereafter the accused started harassing the deceased on account of suspicion as to the character of the deceased. Sonalben used to revert to her parents house and was conveying her plight to them. On 26th of May, 2002, deceased had been to her father’s house and conveyed that on 21st of May, 2002, she had been to Rampark Society because there was wedding at the house of Vinubhai and when she went in the house of Vinubhai for changing clothes, the accused doubted her character and started beating her and executed cruelty. Vinubhai was relative of Sonalben. She was persuaded by her father and was sent to her in-laws house on 27th of May, 2002. Vinubhai was relative of Sonalben. She was persuaded by her father and was sent to her in-laws house on 27th of May, 2002. On the day of the incident, according to prosecution case, on account of the quarrel, when Sonalben had resumed at her husband’s house, accused poured kerosene over her while she was sitting on the cot and ignited her. Sonalben received 93% burns and the incident occurred at about 8.00 to 8.30 a.m. at Modasa. She was taken to Rasiklal Sarvajanik Hospital, Modasa and was examined by Dr. Nareshbhai Bhupendrabhai Joshi and one Dr. Varshaben and on the night of the incident at about 8.30 p.m. she was transferred to Baroda Hospital. There she died during treatment and postmortem was conducted by P.W. 1 Dr. Sutapa Satyendranath Roy Basu, Medical Officer, SSG Hospital at Baroda, on 1st of June, 2002 and according to this Doctor, deceased had 90% burn injuries and cause of death was septicemia due to burns. In the meantime, on 28th of May, 2002, at about 9.30 hours, Maheshbhai Chunnilal, father of the deceased, had filed a complaint before Police Inspector, Modasa Town Police Station and crime came to be registered against the accused for the above said offences vide CR No. I-71 of 2002. Sonalben died after the crime was registered against the accused and hence though the offence was initially registered for the offence punishable under Section 307 of the Indian Penal Code was converted into an offence punishable under Section 302 of the Indian Penal Code. During investigation, inquest panchnama was drawn, panchnama of scene of offence was drawn, Executive Magistrate P.W. 6 Shakrabhai Pujabhai had recorded the dying declaration of the deceased. Accused was arrested and charge sheet was submitted in the court of Judicial Magistrate, First class at Modasa and case was committed to the Court of Sessions and was made over to the Trial Court. 3. The Trial Court framed charges against the accused vide Exhibit-2 on 09th of December, 2002 for the offences punishable under Sections 302 and 498-A of the Indian Penal Code, to which the accused pleaded not guilty. Prosecution therefore examined the following documentary as well as oral evidence. Exhibit-07 Dr. Sutapa Satyendranath Roy Basu Exhibit-08 Police Yadi Exhibit-09 Police Report Exhibit-10 Postmortem Report Exhibit-11 Inquest Panchnama Exhibit-12 Deposition of P.W. 2 Kalpeshkumar Amrutlal Exhibit-13 Panchnama of scene of Offence Exhibit-14 Deposition of Dr. Prosecution therefore examined the following documentary as well as oral evidence. Exhibit-07 Dr. Sutapa Satyendranath Roy Basu Exhibit-08 Police Yadi Exhibit-09 Police Report Exhibit-10 Postmortem Report Exhibit-11 Inquest Panchnama Exhibit-12 Deposition of P.W. 2 Kalpeshkumar Amrutlal Exhibit-13 Panchnama of scene of Offence Exhibit-14 Deposition of Dr. Nareshbhai B Joshi Exhibit-15 Medical Certificate Exhibit-16 Medical case papers of Sonalben Exhibit-17 Deposition of complainant Maheshbhai Exhibit-18 Original Complaint Exhibit-21 Deposition of Manjulaben Exhibit-22 Deposition of Shakrabhai Pujabhai Exhibit-23 Yadi sent to Executive Magistrate for recording Dying Declaration Exhibit-24 Dying Declaration of deceased Exhibit-25 Deposition of Ramilaben Exhibit-26 Deposition of Panchabhai Bhagvanbhai Patel, PI, Modasa Town Police Station Exhibit-27 Janava Jog Entry Exhibit-28 Entry No.5 of 2002 of Modasa Police Station Exhibit-29 F.I.R. Exhibit-30 Report for making Section 303 of the I.P. Code Exhibit-31 Map of Place of offence Exhibit-32 Forwarding letter of sending muddamal Exhibit-33 Receipt of receiving muddamal article. Exhibit-34 Letter of Forensic Science Laboratory Exhibit-35 F.S.L. Report Exhibit-36 Closing Purshis submitted by the prosecution 4. Thereafter, the learned trial Judge brought the incriminating circumstances appearing in evidence against the accused to the notice of the accused - appellant and his defence was of total denial. According to him, the incident was an accident as when stove was in flames, the deceased attempted to put kerosene in the stove and, hence, on account of spreading of flames, she was burnt. 5. Learned Advocate Mr. Dharmesh Patel for the appellant and learned APP Ms. Chetnaben B. Shah for the respondent State were heard in great detail in this appeal. 6. We have undertaken a complete and comprehensive scrutiny of all vital features of the case and the entire evidence on record has been re-appreciated by us with reference to the broad and reasonable probabilities arising out of the case. We have also gone through threadbare, record and proceedings as well as the reasoning of the trial court. We have taken into consideration the contention raised by both the sides in this appeal. 7. Undoubtedly the case rests only on the evidence of dying declarations. Especially in this case there are more than one dying declarations of the deceased. Needless it to say that the dying declaration, according to Section 32(1) of the Indian Evidence Act, 1872, is admissible piece of evidence and exception to the general rule that hearsay evidence is not admissible. Undoubtedly the case rests only on the evidence of dying declarations. Especially in this case there are more than one dying declarations of the deceased. Needless it to say that the dying declaration, according to Section 32(1) of the Indian Evidence Act, 1872, is admissible piece of evidence and exception to the general rule that hearsay evidence is not admissible. It is also well settled principle of law now that conviction can be based on dying declaration provided the same is satisfactory and reliable and has been made by the deceased while in fit mental condition. A dying declaration, therefore, enjoys almost a sacrosanct status as a piece of evidence, coming as it does from the mouth of the deceased victim. Once the statement of dying person and the evidence of the witnesses testifying to the same passes the test of careful scrutiny of the Courts, it becomes very important and reliable piece of evidence and if the Court is satisfied that the dying declaration is true and free from any embellishment such a dying declaration by itself can be sufficient for recording conviction even without looking for any corroboration. If there are any infirmities of such nature warranting further assurance then the Courts have to look for corroboration. Though the rule of corroboration requires that the dying declaration be subjected to close scrutiny since the evidence is untested by cross-examination. 8. Further this is a case which contains more than one dying declaration. In such a situation it becomes the duty of the Court to ascertain the consistency having regard to the circumstances as might have been proved surrounding to the statement made by the deceased. It is always a question of fact in given circumstances whether Declarations are consistent and whether what weight should be given to particular Declaration. A careful scrutiny in this respect is required to undertake by the Court. In the matter of Amol Singh vs. State of Madhya Pradesh, as reported in (2008) 5 SCC 468 , the Apex Court observed as under: “13. Law relating to appreciation of evidence in the form of more than one dying declaration is well settled. Accordingly it is not the plurality of the dying declaration but the reliability thereof that adds weight to the prosecution case. Law relating to appreciation of evidence in the form of more than one dying declaration is well settled. Accordingly it is not the plurality of the dying declaration but the reliability thereof that adds weight to the prosecution case. If a dying declaration is found to be voluntary, reliable and made in fit mental condition, it can be relied upon without any corroboration. The statement should be consistent throughout. If the deceased had several opportunities of making such dying declaration they should be consistent. (See Kundula Bala Subrahmanyam vs. State of A.P.). However, if some inconsistencies are noticed between one dying declaration and the other, the court has to examine the nature of the inconsistencies, namely, whether they are material of not. While scrutinizing the contents of various dying declarations, in such a situation, the court has to examine the same in the light of the various surrounding facts and circumstances.” 9. Thus, when there are more than one dying declaration, it is established law that there should be consistency with each other, but if some inconsistencies are found, then those inconsistencies are to be resolved or to be looked into in the light of various surrounding facts and circumstances. 10. In the present case, what is vehemently urged is based upon the evidence of P.W. 3 Dr. Nareshbhai Joshi, who, at the instance of accused, produced on record vide Exhibit-16 the case papers in respect of the deceased when she was first examined by one Dr. Varshaben, but Varshaben has not been examined as a witness in the case. In Exhibit-16, Varshaben has noted the history given by patient that she had accidental burns during preparing tea and thereafter the Executive Magistrate noted the Dying Declaration of the deceased at 14.10 hours on the same day. She narrated the incident before the Executive Magistrate that she was made to sit on a cot and kerosene was poured over her by the accused and she was ignited. Therefore, it is vehemently urged that there are inconsistencies in dying declarations and the accused is entitled to benefit of doubt. 11. Now re-appreciating the prosecution evidence, P.W. 1 Dr. Sutapa Basu conducted the postmortem on deceased on 1st of June, 2002 from 12.30 hours to 13.30 hours and he produced on record the postmortem note at Exhibit-10. Therefore, it is vehemently urged that there are inconsistencies in dying declarations and the accused is entitled to benefit of doubt. 11. Now re-appreciating the prosecution evidence, P.W. 1 Dr. Sutapa Basu conducted the postmortem on deceased on 1st of June, 2002 from 12.30 hours to 13.30 hours and he produced on record the postmortem note at Exhibit-10. According to his deposition, the deceased had 90% burn injuries as under : “90% infected dermo epidermal burn. Burns present over the face and neck, front of chest, abdomen. Back of chest and back of abdomen. Both upper limbs including palms and dorsum. Right lower limb upto dorsum of front. Left lower limb upto left knee leg spared. External genital spared.: 12. According to Doctor, the injuries were antemortem and were sufficient in ordinary course of nature to cause death. There were corresponding internal injuries and the cause of death was septicemia on account of burn injuries. In examination-in-cross, a possibility was asked about that if someone comes in a conduct of stove with flames and if her sari gets flames, one can get burn injuries. In examination-in-cross, it is stated that though the face of the deceased was burnt, it was not extensively burnt. Her both hands were extensively burnt. The witness was not in position to give opinion based on postmortem as to whether the death was accidental or homicidal. 13. P.W. 2 Kalpeshkumar Amrutlal, examined at Exhibit-12, is panch of scene of panchnama and he has not supported the prosecution case so far as the panchnama is concerned. In examination-in-cross by the defence, he stated that there was an iron cot at the place of incident, but it was not smelling of kerosene. 14. P.W. 3 Dr. Nareshbhai Bhupendrabhai Joshi, examined at Exhibit-14, is Doctor, who, first in point of time, treated the deceased. According to him, he was serving as a Medical Officer at Rasiklal Shah Sarvajanik Hospital, Modasa and one Dr. Varshaben was also with him, who had admitted the deceased to the Burn Ward. The deceased was taken to the hospital by the accused. There were 93% burn injuries and second and third degree burns were there. She was transferred to Baroda and in this respect he produced on record a certificate of injuries which is placed at Exhibit-15. She was brought to the hospital at 09.45 hours and was sent to Baroda at 20.30 hours. There were 93% burn injuries and second and third degree burns were there. She was transferred to Baroda and in this respect he produced on record a certificate of injuries which is placed at Exhibit-15. She was brought to the hospital at 09.45 hours and was sent to Baroda at 20.30 hours. During this period, the Executive Magistrate also recorded her statement. He stated that the injuries which he found was probable if some one pours kerosene over the victim and ignited her. These injuries were sufficient in ordinary course of nature to cause death. When she was brought to the hospital, she was fully conscious. In examination-in-cross, he produced on record the case papers at Exhibit-16. He admitted that, according to Exhibit-16, the history was given by the patient herself. He denied the suggestion that in cases of accidental death, the injuries like in the present case, would be there. He emphatically stated in examination-in-cross that the injuries which she had on the back, on the face and on the hands were in the nature, which indicated homicidal incident and not accidental incident. Emphatically again in examination-in-cross, he stated that the incident was not accidental but homicidal. Thereafter in Para-3, he was asked about what treatment was given to her. He stated that Fortpil was given and not morphine. He stated that the effect of fortpil on the body of the patient depends upon the natural capacity of the deceased. Ordinarily, in cases of 93% burns, the effect of fortpil would be about six hours, though, it was stated by him that after giving treatment, she was not conscious, but the way in which this negative sentence is recorded by the Trial Court, it appears that, taking the context from the evidence of this witness as a whole, what this witness stated is that, even after giving the drugs to her, she was conscious because that is the say of the Doctor in examination-in-chief and that cannot be ignored. He admitted that her both hands including fingers were burnt and he denied the suggestion emphatically that she was not mentally fit to give replies to the questions put to her. He admitted that her both hands including fingers were burnt and he denied the suggestion emphatically that she was not mentally fit to give replies to the questions put to her. It is the allegation of defence that one Vinubhai Bhatiya, sister’s husband of mother of the deceased, was serving as a Constable at Modasa Police Station, and on account of his influence, a false case was fabricated against the accused and this suggestion is emphatically denied by this witness. It is also denied by this witness that one Sithalben, daughter of said Vinubhai, was serving as Nurse in the said hospital and on account of her influence, though Sonalben was unconscious, the certificate was given that Sonalben was conscious. This is all in the evidence of this witness. 15. What transpires clearly from the evidence of this witness P.W. 3 Dr. Nareshbhai Joshi that the death was homicidal death because deceased Sonalben had burn injuries. What is established further is that she was fully conscious when she was brought to the hospital by the accused appellant. What is also established is that Exhibit-16 case papers are not proved to be in the handwritings of Dr. Varshaben because Dr. Varshaben has not been examined. Exhibit-16 case papers are produced on record at the instance of the defence and defence has not asked or established during the examination-in-cross that the handwritings of the case papers at Exhibit-16 belonged to Dr. Varshaben and it could be identified by this witness Dr. Nareshbhai Joshi - P.W. 3 and, therefore, the history which is narrated is out of context of the circumstances established on record and is not believable, more so when, circumstances of the case indicate that Sonalben when brought to the hospital, she was under influence of the accused and, therefore, the history which is much relied upon by the learned Advocate for the appellant recorded in Exhibit-16 bears no evidentiary value at all. Such history has not been recorded in Certificate at Exhibit-15 as produced on record by P.W. 3. 16. P.W. 4 Maheshbhai Chunilal is the complainant, examined at Exhibit-17, who had filed the First Information Report before police. Shocking circumstances are coming out from the evidence of this witness that how the witnesses are induced to commit perjury and destroy the prosecution case particularly incident like one at hand, which are the offence against the society. 16. P.W. 4 Maheshbhai Chunilal is the complainant, examined at Exhibit-17, who had filed the First Information Report before police. Shocking circumstances are coming out from the evidence of this witness that how the witnesses are induced to commit perjury and destroy the prosecution case particularly incident like one at hand, which are the offence against the society. In-examination-in-chief, which is recorded by the Trial Court on 26th of March, 2003, this witness fully supported the prosecution case that there was cruelty executed upon his daughter by the accused and she was frequently coming to his house and was conveying such facts to her parents. In examination-in-chief, it is also stated by him that the deceased made oral dying declaration to the fact that she was burnt by appellant accused on that very day i.e. on 26th of March, 2003. Learned Advocate for the defence conducted some cross of this witness, but on that day, this witness did not budge and continued to support the prosecution case. Surprisingly or deliberately, during cross, the learned Advocate for the defence filed an application for adjournment for further cross of this witness and, therefore the Trial Court adjourned the case from 26th of March, 2003 to 7th of May, 2003, that is to say, for about one and half months. On 7th of May, 2003, cross-examination of this witness was further conducted by the Advocate for the defence and on that day this witness almost turned hostile and stated that when he visited the hospital, his daughter was unconscious and that her marriage life was happy all throughout. This is nothing but an heinous attempt on the part of the witness to commit perjury at the instance of defence as it appears that after 26th of March, 2003, compromise appears to have taken place and witness was induced to commit perjury as to abandon the prosecution case. Unfortunately, the learned APP has not put any questions to this witness after the cross-examination about what he stated in the complaint and even in his examination-in-chief. The Trial Court ought to have issued notice against this witness for committing perjury on the face of the record. 17. In any case, appreciating the evidence of this witness, what transpires is that, an attempt to induce this witness to abandon the case of the prosecution on account of compromise must not prevail. The Trial Court ought to have issued notice against this witness for committing perjury on the face of the record. 17. In any case, appreciating the evidence of this witness, what transpires is that, an attempt to induce this witness to abandon the case of the prosecution on account of compromise must not prevail. The criminal trials are not fantasy or imagination. Criminal trial must not be made tools in the hands of unscrupulous witnesses playing in the hands of the accused. The cross-examination of this witness conducted by the defence on 7th of May, 2003 must be ignored fully as it becomes the duty of the court to pick up the grains from chaff and find out the truth. What is stated by the witness in the examination-in-chief, which could not be dislodged by the defence in cross-examination conducted on 26th of March, 2003, which is reliable evidence and the cross conducted on 7th of May, 2003 where this witness has turned hostile, must be discarded in toto. Crimes are the events really happening in the society and citizens, in fact, become the victims. No lenient view could be taken in such circumstances and, therefore, we come to the conclusion that what is established by the evidence of this witness is that the prosecution proved beyond doubt that cruelty was executed upon the deceased during life time by the accused and she was fully conscious and in fit state of mind to offer her dying declaration. The prosecution case is strengthened by the attempt made by the defence to induce this witness to commit perjury and not weakened. 18. P.W. 5 Manjulaben Maheshbhai, examined at Exhibit-21 is mother of the deceased and she has not supported the prosecution case in any manner and that could be understood that after 26th of March, 2003, her deposition is recorded on 7th of May, 2003, during which the parties had compromised the homicidal death of their daughter Sonalben. The evidence of this witness is required to be discarded in toto. 19. Material evidence is the evidence of P.W. 6 Shakarbhai Pujabhai, examined at Exhibit-22. He recorded dying declaration of Sonalben - deceased. He stated that, at the relevant juncture, on the day of the incident, on 28th of May, 2002, he was the Executive Magistrate at Modasa. At about 13.35 hours he had received a Yadi from Town Police Station, Modasa. Material evidence is the evidence of P.W. 6 Shakarbhai Pujabhai, examined at Exhibit-22. He recorded dying declaration of Sonalben - deceased. He stated that, at the relevant juncture, on the day of the incident, on 28th of May, 2002, he was the Executive Magistrate at Modasa. At about 13.35 hours he had received a Yadi from Town Police Station, Modasa. In pursuance of that Yadi, he visited the hospital at Modasa and seen the Doctor on duty. He inquired from the Doctor whether the patient was conscious. He had shown said Yadi to the Doctor, which is produced at Exhibit-23, and concerned Doctor allowed the Executive Magistrate to take dying declaration of Sonalben. One Dr. A.C. Vora has signed this endorsement, but he has not been examined. Thereafter, P.W. 6 Shakrabhai Pujabhai went to the room, where patient was admitted. Relatives, police and other staff were asked to leave the room and they left. Thereafter, he recorded the dying declaration of the deceased in which she stated that she was admitted to the hospital at 10.00 a.m. She stated that she was brought by her husband to the hospital. She stated that on the earlier night, her husband accused quarreled with her and on the next day morning while she was sitting on a cot, accused poured kerosene over her and ignited her and, therefore, she got burn injuries. She also stated before the Executive Magistrate that she was treated with cruelty at the hands of her husband since last eight years and she was physically as well as mentally harassed by her husband. She had signed the said dying declaration and according to P.W. 6 Shakarbhai, dying declaration was started at 14.10 hours and was over at 14.25 hours. He had also signed dying declaration which he produced on record at Exhibit-24. He stated that the patient was fully conscious at that juncture. In his cross-examination, he stated that the Mamlatdar Office and Police Station were situated at Modasa in the same compound. He denied that he knew Vinubhai Bhatiya- Police Constable. He stated that he knew one Ashokbhai Kalasva, Deputy Mamlatdar and had seen his house. He stated that he did not know whether the house of Vinubhai was situated adjoining to the house of Ashokbhai. He stated that he was not aware whether Sonalben was the relative of Vinubhai Bhatiya. He denied that he knew Vinubhai Bhatiya- Police Constable. He stated that he knew one Ashokbhai Kalasva, Deputy Mamlatdar and had seen his house. He stated that he did not know whether the house of Vinubhai was situated adjoining to the house of Ashokbhai. He stated that he was not aware whether Sonalben was the relative of Vinubhai Bhatiya. Sonalben had extensive burn injuries and he did not ask to the Doctor in what proportion the burn injuries were there. He admitted that while starting dying declaration, nothing is written about the condition of the patient. He did not get any attestation from the Doctor. He denied the suggestion that Sonalben was unconscious when he recorded the dying declaration. He admitted that in Exhibit-23 Yadi, Doctor has not expressed about the condition of the patient. He denied the suggestion that Sonalben had not given any dying declaration in his presence. He denied the suggestion that Sonalben was not in condition to speak. He denied the allegation that he had joined hands with Ashokbhai, Deputy Mamlatdar and fabricated the dying declaration. He denied the suggestion that in dying declaration patient had not signed or was not in position to sign. He denied the suggestion that Sonalben was illiterate. 20. This is all is the evidence of the Executive Magistrate. 21. From the evidence of this Executive Magistrate, it is clear that, what is found is that the witness Shakarbhai Pujabhai, beyond doubt, proved the fact that the deceased Sonalben was fully conscious when he visited the patient for recording of the dying declaration. It must be noted that witness Shakarbhai is an independent witness and nothing is shown in examination-in-cross as to doubt the testimony of this witness. True it is that, Dr. A.C. Vora, who has endorsed below Yadi Exhibit-23 that dying declaration is allowed to be taken, has not been examined, but it is not the law that Doctor always certify that the patient was in fit state of mind to offer dying declaration. What is required by the law is that, from the evidence on record and circumstances proved, whether the fact is established that the patient was in fit state of mind to offer dying declaration. It must be noted that P.W. 3 Dr. What is required by the law is that, from the evidence on record and circumstances proved, whether the fact is established that the patient was in fit state of mind to offer dying declaration. It must be noted that P.W. 3 Dr. Nareshbhai Joshi, who is examined, it is established beyond doubt that the patient was conscious when she was brought to the hospital though the dying declaration was taken after four hours after examination of the patient, but what appears from the circumstances is that Sonalben was in fit state of mind to offer dying declaration i.e. Exhibit-23. Not only P.W. 3, Dr. Nareshbhai Joshi but this witness P.W. 6 Shakrabhai emphatically stated that Sonalben was in position to offer dying declaration and he had sought medical advice on that and endorsement at Exhibit-23. When we carefully scrutinized the evidence of this witness, we found that there was no infirmity at all in the evidence of this witness as to the recording of dying declaration simply because one Ashokbhai, who is Deputy Mamlatdar at Modasa and Vinubhai Bhatiya, Police Constable, happens to be the relative of Sonalben and being Constable and neighbour of that Ashokbhai, it could not be imagined that, on that count, this prosecution witness would involve the accused to the extent that he had gone to fabricate the dying declaration at Exhibit-23. Except that, nothing is brought on record by the defence that there was any infirmity in the evidence of P.W. 6 Shakarbhai and what is stated by Sonalben before this witness is proved beyond doubt. We are unable to accept the contention of learned Advocate for the appellant that since there was no kerosene smell alleged to have been poured on the cot on which the deceased was sitting and, therefore, the story was not probable. This is so because by overwhelming weighty evidence of P.W. 2 and P.W. 6, it is proved beyond doubt that Sonalben was burnt by the accused appellant and accused appellant only. When we perused the map of scene of offence produced on record at Exhibit-31, we found that the prosecution case is more probable than what is contended by the defence. It is also to be taken into consideration that it would not be probable when the stove is on and in the flames the victim would attempt to fill the kerosene in the stove. It is also to be taken into consideration that it would not be probable when the stove is on and in the flames the victim would attempt to fill the kerosene in the stove. It is so because basically if the stove is on, no necessity would arise at all to fill up the stove with kerosene. This is a corroborating factor to the prosecution story. Dying declaration - Exhibit - 24 is more fortified and corroborated by the evidence of P.W. 3 Dr. Nareshbhai Joshi wherein he stated in examination-in-cross that from the injuries which the deceased had sustained, the conclusion which could be drawn was of homicidal death and not accidental death and therefore the story which is narrated in the dying declaration by the deceased in Exhibit-24 is more probable and this could not be dislodged by the defence in cross-examination or by showing any other circumstances. The story is consistent and even if it is believed that in Exhibit-16 Dr. Varshaben noted the history as given by the patient, it must not be lost sight that the deceased was taken to the hospital by accused only and he must be present at that time. Such recording of history must not weigh against the weighty evidence of P.W. 3 and P.W. 6. If these are inconsistencies, then examining the nature of these inconsistencies and after taking into consideration the surrounding facts and circumstances, as stated above, we found that the history recorded in Exhibit-16 could not dislodge the evidence of Dying Declaration at Exhibit-24 which is proved beyond doubt by the prosecution and stands truthful and credible in judicial scrutiny. It must be noted that, as afore stated, complainant Maheshbhai Chunilal, supported the prosecution case in the circumstances as narrated above. All these circumstances give credence to the prosecution story and the deposition of P.W. 3 Dr. Nareshbhai Joshi and P.W. 6 Shakrabhai, we do not find any flaw in recording of the dying declaration by P.W. 6, and that such dying declaration finds support from other circumstances, as discussed above. We are unable to accept the contention of the learned Advocate for the appellant that the deceased was not in fit state of mind. We are unable to sustain the contention of the learned Advocate for the appellant that when both the hands of the deceased were burnt, she could not have signed the dying declaration. We are unable to accept the contention of the learned Advocate for the appellant that the deceased was not in fit state of mind. We are unable to sustain the contention of the learned Advocate for the appellant that when both the hands of the deceased were burnt, she could not have signed the dying declaration. True that it has come in evidence that both the hands including fingers of Sonalben were burnt, but at the same time, it must be noted that Sonalben had signed the dying declaration. Had it been a thumb impression, there would have been scope of probability that when all fingers were burnt, her thumb impression could not have been taken, but in this case, Sonalben had signed the dying declaration and it has not been asked to any of the witnesses by the defence that because the fingers were burnt, Sonalben was in position to hold a pen to sign the dying declaration. Merely because the fingers of Sonalben were burnt, it could not be said that she was not in condition to hold pen to sign the dying declaration and this explanation is not at all sought by the defence. The contention raised by the defence in this regard is of no use to the defence. Further, when we perused and scrutinized the signature of Sonalben on the dying declaration, we found from the manner of signing that it was difficult for Sonalben to sign the dying declaration, but she must have hold the pen to subscribe signature on the dying declaration. Only because Dr. Vora, who endorsed on Exhibit-23 Yadi, has not been examined, as contended, is not a factor to discard the whole dying declaration. Other wise also, the fitness of state of mind of the deceased, as afore stated, is established by the prosecution beyond doubt by cogent evidence. 22. P.W. 7 Ramilaben Vinodbhai, examined at Exhibit-25, is wife of Vinodbhai and sister of mother of Sonalben. She stated to the extent that the accused and Sonalben were invited to an occasion of wedding on their house and on that count some quarrel had taken place among them. 23. P.W. 8 Panchabhai Bhagvanbhai, examined at Exhibit-26, is the Investigating Officer. This is the evidence of prosecution and we have scrutinized the evidence, as afore stated. She stated to the extent that the accused and Sonalben were invited to an occasion of wedding on their house and on that count some quarrel had taken place among them. 23. P.W. 8 Panchabhai Bhagvanbhai, examined at Exhibit-26, is the Investigating Officer. This is the evidence of prosecution and we have scrutinized the evidence, as afore stated. It must be noted that the Forensic Science Laboratory opinion is placed on record wherein sample (Mark-1) which was remaining part of sari of Sonalben was found to be containing petroleum hydro carbon. This is a corroborative evidence. 24. Learned Advocate for the appellant cited certain decisions on different facts. It must be noted that in criminal trials, a decision on facts, is not helpful to decide any case on different facts. A case decided on certain facts is not the precedent for the case containing separate facts. There cannot be two cases in criminal trial of the similar facts and, hence, the decisions cited by the learned Advocate for the appellant in the matter of Sanjay vs. State of Maharashtra, as reported in (2007) 9 SCC 148 ; in the matter of Heeralal vs. State of M.P., as reported in JT 2009 (4) SC 115; in the matter of State of A.P. vs. Guvva Satyanarayana, as reported in AIR 2009SC 101; in the matter of Nallapati Sivaiah vs. Sub-Divisional Officer, Guntur, A.P., as reported in 2007(3) GLH 491 and in the matter S. Panneerselvam vs. State of Tamil Nadu, as reported in 2008(3) GLH 442 are not helpful to the appellant. 25. While appreciating the evidence in any criminal trial, not a small limb of the evidence is required to be taken into consideration, but the whole scenario as reflected through the evidence adduced by prosecution is required to be scrutinized especially in a case of multiple dying declarations. If the Court of a fact is satisfied that some of the dying declarations are truthful out of multiple dying declarations, the Court must act upon the same. This is the principle laid down by the Apex Court in the matter of Sayarabano Alias Sultanabegum vs. State of Maharashtra, as reported in (2007) 12 SCC 562 ; in the matter of Vikas and Ors. vs. State of Maharashtra, as reported in (2008) 2 SCC 516 and in the matter of Sher Singh and Anr. This is the principle laid down by the Apex Court in the matter of Sayarabano Alias Sultanabegum vs. State of Maharashtra, as reported in (2007) 12 SCC 562 ; in the matter of Vikas and Ors. vs. State of Maharashtra, as reported in (2008) 2 SCC 516 and in the matter of Sher Singh and Anr. vs. State of Punjab, as reported in (2008) 4 SCC 265 . In the present case it is clear from the evidence that the death is homicidal and from the evidence of P.W. 6 Shakarbhai Pujabhai, dying declaration - Exhibit-24 is established beyond doubt and to some extent complainant also corroborated the prosecution case. In these circumstances only because in case papers - Exhibit-16 Doctor has made some endorsement as to the history given by the patient, would not destroy the prosecution case and learned Trial Judge rightly appreciated the evidence and came to the conclusion that accused was guilty for the charges levelled against him. Nothing could shown in this Appeal that the conclusion arrived at by the Trial Court are erroneous. 26. In this view of the matter, the following final order is passed: “Appeal stands dismissed. Orders of the Trial Court in respect of muddamal is not interfered with.”