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2011 DIGILAW 826 (GUJ)

DILIPBHAI KALUBHAI RAVAL v. STATE OF GUJARAT

2011-12-13

JAYANT PATEL, PARESH UPADHYAY

body2011
JUDGMENT (Per : HONOURABLE MR.JUSTICE JAYANT PATEL) 1. The present appeal is directed against the judgment and order passed by the learned Additional Sessions Judge in Sessions Case No.726 of 2003, whereby the learned Additional Sessions Judge has convicted the appellant – Accused No.1 (hereinafter referred to as 'A-1') for the offence punishable under Sections 302, 354, and 506(2) of IPC and has imposed sentence of life-imprisonment with the fine of Rs.5,000/- for the offence under Section 302 of IPC, imprisonment for two years with the fine of Rs.1,000/- for the offence under Section 354 of IPC and imprisonment of two years with the fine of Rs.1,000/- for the offence under Section 506(2) of IPC and all the punishments are to be undergone concurrently. 2. As per the prosecution case, the complaint was registered with Morva Police Station on 7.1.2003, vide C.R. No.2/03 for the offence under Sections 354, 307, 506(2) and 114 of IPC by the victim, Naynaben. As per the complainant, on 6.1.2003, during recess time she and her brother Suresh both had gone to hill-forest for collecting bor, (one of the eatable nuts as being naturally grown in the hill-forest) and at that time, when the complainant was collecting the bor, A-1, who is the brother-in-law of the son of A-4 came and he tried to outrage modesty of the complainant, but as Suresh, brother of the complainant came in between, she was saved by Suresh. Thereafter, when the mother of the victim scolded A-4, he gave a threat to kill the complainant and family members. The next day, at about 7 O'clock when the complainant went to the backyard of the house for throwing waste, suddenly A-1 came running with the bottle containing kerosene and the same was sprinkled over her clothes and he threw ignited match-stick to her and she was set ablaze. Since the complainant started shouting, her mother and her brother Suresh came running and sprinkled water all over the deceased victim and tried to save her by covering with bedding (godada). Thereafter, she was shifted to Government Hospital at Godhra and when she was in conscious condition, the complaint was lodged. 3. The aforesaid complaint was investigated. In the meantime, the victim succumbed to injuries on 18.1.2003 and, therefore, the charge under Section 302 was added. Thereafter, she was shifted to Government Hospital at Godhra and when she was in conscious condition, the complaint was lodged. 3. The aforesaid complaint was investigated. In the meantime, the victim succumbed to injuries on 18.1.2003 and, therefore, the charge under Section 302 was added. Ultimately, the charge-sheet was filed against all the accused namely; Dilip – A-1, Ramesh – A-2, Mansukh – A-3, Parvat – A-4. The learned Sessions Judge, thereafter framed the charges against A-1 for the offence under Section 354, Section 302 and Section 506(2) of IPC and against A-2, A-3 and A-4, the charges were framed under Section 354 read with 114 of IPC. In order to prove the guilt of the accused, the prosecution examined 16 witnesses and 24 documentary evidences were produced by the prosecution and the details of oral as well as documentary evidence are mentioned by the learned Sessions Judge at paragraph 5 of the judgment. The learned Sessions Judge thereafter recorded the statement of the accused under Section 313 of Cr.P.C. in which all the accused denied charge against them and in the further statement it was stated by A-1 that since he was cultivating the land with Parvat Mansukh – A-4 belonging to Kankuben and the same was demanded back, and there was a dispute, he has been falsely implicated. The learned Sessions Judge thereafter heard the prosecution as well as the defence and found A-1 as guilty for the offences under Section 302, 354, and 506 of IPC, but the learned Sessions Judge found that the prosecution has failed to establish the case against A-2, A-3 and A-4. The learned Sessions Judge, therefore, he acquitted A-2 to A-4 for the alleged offences. The learned Sessions Judge heard the matter for imposition of sentence and ultimately by the impugned judgment as referred to herein above, has convicted A-1 – Appellant herein and imposed sentence. Under these circumstances, the present appeal before this Court. 4. We have considered the entire evidence on record. We have considered the judgment of the learned Sessions Judge and the reasons recorded therein. We have heard Mr.Mrutul Barot, learned Counsel for the appellant and we have also heard Mr.Pandya, learned APP for the State. 5. The learned Sessions Judge, as such, has found the case of the prosecution based on the dying declaration made by the deceased victim. We have considered the judgment of the learned Sessions Judge and the reasons recorded therein. We have heard Mr.Mrutul Barot, learned Counsel for the appellant and we have also heard Mr.Pandya, learned APP for the State. 5. The learned Sessions Judge, as such, has found the case of the prosecution based on the dying declaration made by the deceased victim. As per the dying declaration of the deceased – Exh.25, produced in the testimony of the Executive Magistrate Deepakkumar Prafulchandra Bhatt – PW-6 – Exh.23, noting has been made in the dying declaration by Dr. S.A. Modi at 1.30 p.m., on 7.1.2003 that the patient was conscious. The contents of the dying declaration – Exh. 25 shows that as per the deceased on 6.1.2003, when she had gone to the School at that time, during recess, she and her brother Suresh had gone to the forest for taking 'bor' and at that time, A-1 belonging to Goribada Village came suddenly and he attempted to outrage modesty of her, but with the help of her brother, she was saved and came back to the home. Thereafter, on 7.1.2003, during morning hours when she had gone in the backyard of her home to throw waste, A-1 brought the kerosene in the bottle and sprinkled and set fire with the match-stick and she has been set ablaze. In the dying declaration, it was also stated that the other persons A-2 to A-4 had instigated A-1 and, therefore, A-1 was harassing her since a long time. As he could not commit rape, she has been set ablaze. 6. The aforesaid dying declaration has been proved by the deposition of the Executive Magistrate – PW-6 and there is no material contradiction in the testimony for the purpose of procedure to be followed for recording of the dying declaration by him after verifying that the victim was in conscious condition and no members of the family or the police officer were permitted to remain present when dying declaration was recorded. In the cross-examination, no contradiction has come out on the aspect in recording of the dying declaration by him and another aspect is that dying declaration has been recorded by the said witness in his own hand-writing and he has reconfirmed the over-writing made since the same was a part of declaration made by the deceased. In the cross-examination, no contradiction has come out on the aspect in recording of the dying declaration by him and another aspect is that dying declaration has been recorded by the said witness in his own hand-writing and he has reconfirmed the over-writing made since the same was a part of declaration made by the deceased. He has specifically denied that the deceased was not in a position to give reply. He has stated that he had asked the name of the patient and thereafter he had confirmed that the patient is Naynaben, whose dying declaration was to be recorded. On the aspects of taking thumb impressions, he has stated that the thumb impression was taken in his presence. 7. The doctor who made the endorsement about the consciousness of the patient is Dr. Shital Modi – PW-9, Exh. 29. She, in her testimony, has admitted the factum of making endorsement by her at 1.30 p.m., that the patient is in conscious condition. In the cross-examination, she has further stated that both the endorsements were made by her after examining the patient. She has stated that thereafter when the Executive Magistrate recorded the dying declaration she was not present. Therefore, the full consciousness of the patient before recording of the dying declaration as per the medical evidence of the aforesaid doctor, is duly approved. 8. The aforesaid evidence of the dying declaration – Exh. 25, read with the testimony of Executive Magistrate – PW-6, Exh. 23, and the testimony of the doctor, Dr. Shetalben – PW-9, Exh. 29, even if considered with the cross-examination of both the witnesses, no material contradiction is found on the aspects of conscious condition of the patient, the capacity of the patient to answer the question and the recording of the declaration made by the deceased by the Executive Magistrate, it can be said that the dying declaration is proved. 9. The law on the question of reliability of the dying declaration is by now well settled. If the deceased in full conscious condition, as duly certified by the doctor, has made declaration before the Executive Magistrate, and such declaration is recorded by the Executive Magistrate based on the declaration made by the deceased, then such dying declaration can be considered for the purpose of tracing the guilt of the accused concerned. 10. If the deceased in full conscious condition, as duly certified by the doctor, has made declaration before the Executive Magistrate, and such declaration is recorded by the Executive Magistrate based on the declaration made by the deceased, then such dying declaration can be considered for the purpose of tracing the guilt of the accused concerned. 10. The aforesaid evidence, as led by the prosecution, is supported by two other witnesses namely; the brother of the deceased Suresh Hirabhai Chamar – PW-5, Exh. 22 and Kankuben – PW-7, Exh. 26. We do notice that there are improvements by both the witnesses in their testimony, but such improvements related to Parvat – A-4. Their testimony nowhere even after consideration of cross-examination, can be said as unreliable on the aspect of commission of offence by A-1 to set ablaze the deceased by pouring kerosene and setting fire upon the deceased. We may state that so far as A-4 is concerned, the learned Sessions Judge has already found him as not guilty. Further, there is no reference in the dying declaration of the deceased about A-4 Parvat Mansukh for playing role directly in sprinkling of kerosene or setting fire, except the instigation as stated in the dying declaration. 11. The aforesaid evidence is further corroborated by incriminating material of the kerosene bottle, which was recovered at the instance of A-1. The said bottle had the capacity to preserve 650 mlt of kerosene and the FSL Report – Exh.54 shows that Hydrocarbons particles of kerosene were found in the said bottle. 12. Under these circumstances, in our view, the aforesaid are corroborative piece of evidence as led by the prosecution for supporting the say of the deceased in the dying declaration. 13. However, the learned Counsel appearing for the appellant raised the contention that it is a case where there were three dying declarations and in his submission, when the deceased was brought to the hospital, the medical history was given to Dr. Binaben Parikh – PW-8, Exh. 28 and she has stated that it was reported to her that while recording the medical history, by the deceased as well as mother that there was burn injuries of fire wood (Tapna). Therefore, the learned Counsel submitted that such declaration recorded in the medical history by the deceased could be said as the first dying declaration. 28 and she has stated that it was reported to her that while recording the medical history, by the deceased as well as mother that there was burn injuries of fire wood (Tapna). Therefore, the learned Counsel submitted that such declaration recorded in the medical history by the deceased could be said as the first dying declaration. It was further submitted that when the police vardhi was given to Valimahmad Rasulkhan Divan – PW-14 Exh.38, it was reported and accordingly recorded that the deceased was burnt. He submitted that at that time it was not declared that she was set ablaze or fire was set upon her by pouring kerosene or otherwise. The learned Counsel further submitted that in deposition of Valiben – PW-12 Exh. 35, who, of course, was declared as hostile witness, but she did state that she had seen the deceased Naynaben coming out from the house in burnt condition and when she enquired, she was told that because of the quarrel between mother and the daughter, she herself set ablaze. The learned Counsel, therefore, submitted that the testimony of Valiben could be said as a third dying declaration and the fourth dying declaration was recorded before the Executive Magistrate. Under these circumstances, the reliability and the credibility of dying declaration – Exh. 25, which has been made as the basis by the learned Sessions Judge for conviction, is lost and, therefore, the learned Sessions Judge has committed error. 14. We may first consider the aspect of consideration of the testimony of Valiben – PW-12, Exh. 35, whether it can be said as the dying declaration of the deceased as sought to be canvassed by the learned Counsel or not. The said witness is not examined as a defence witness, but she was examined as prosecution witness No.12. She has not stated before the police, but when she was examined, she has stated that Naynaben came out from the house in burnt condition and when she enquired, Naynaben had told her that because of the quarrel between the mother and the daughter, she had burnt herself, but the pertinent aspect was that the prosecution immediately applied for declaring her as hostile and she has been accordingly declared as hostile to the case of the prosecution. Therefore, when the witness was declared hostile, even if any part of her testimony was to be considered, it should be considered only to the extent of finding out any supporting material to the case of the prosecution and cannot be considered to be treated as an evidence led on behalf of the defence or accused. Further, it was not the defence of the accused in the cross-examination of any of the witnesses, nor it transpired while recording the statement under Section 313 of Cr.P.C., that it was a case of suicide committed by the deceased herself. Under these circumstances, we are not inclined to accept the contention that the testimony of Valiben – PW-12, Exh.35, even if she was declared hostile, could be considered to find out the dying declaration made by the deceased before her. 15. On the aspect of medical history, the testimony of Dr. Binaben Parikh – PW-8, Exh.28, has dealt with by the learned Sessions Judge by considering that when 90% burnt was sustained by the deceased at the time when she was admitted to the hospital, the history might have been given by the relative of the patient and, therefore, the learned Sessions Judge has not considered the said aspect as the reliable evidence. In our view, it is not that medical history has no relevance when the doctor herself is examined, but when the medical history is in contradiction to material evidence of the victim herself, in the dying declaration, the Court may not fully and completely rely upon the dying declaration, so as to record the conviction based on dying declaration, but it would be a case to trace corroboration of the contents of the dying declaration and if the Court is satisfied on the aspect that apart from the dying declaration there are material corroborative evidences, successfully led by the prosecution and such evidences are reliable, as against the medical history given, the Court would be required to rely upon the dying declaration for tracing the guilt of the accused. 16. 16. In the present case, as recorded by us herein above, the dying declaration is proved with the credibility thereof in view of the two peculiar circumstances that the patient as per the doctor was found to be in full conscious condition and that as per the Executive Magistrate, the patient could answer the question and the same has been accordingly recorded by him in the dying declaration. It is true that a doubt could be said to have been created about the contents of the dying declaration on account of the medical history before Dr. Bina Parikh – PW-8, Exh. 28, but on account of the said medical history, the attempt shall be on the part of the Court to find out the corroborative piece of evidence as led by the prosecution as to whether the medical history was genuine or the contents of the dying declaration. There are corroborative material evidence as that of Suresh – PW-5 Exh. 22, Kankuben Exh. 26, on the aspect of contents of dying declaration and further there is also incriminating material found of the kerosene bottle recovered at the instance of the accused and the FSL reported shows that the bottle contained Hydrocarbons particles of kerosene. As per the prosecution case and as stated by the deceased in the dying declaration, the kerosene was brought in the bottle and was sprinkled over her. There is no explanation whatsoever in the further statement of the accused concerned about the aforesaid incriminating material recovered at his instance. Under these circumstances, it is on account of the aforesaid corroboration by the material evidence as led by the prosecution, to the say of the deceased in the dying declaration, we do not find that it would be a case to discard dying declaration of the deceased, which is otherwise duly proved, just on a mere ground of medical history given before the doctor at the time when the deceased was brought to the hospital. 17. 17. We may record that it is not a matter where more than one dying declaration was recorded before the Executive Magistrate, but at the same time, the statement made by the deceased before any person in a peculiar circumstance, may be termed as dying declaration, but before Court considers such oral statement made by the deceased to be treated as dying declaration, it would be required for the Court to consider the other evidence as available on record duly proved by the prosecution. Under these circumstances, we find that the medical history could not be termed as dying declaration and at the most, it may create the doubt about the genuineness of the contents of the dying declaration, but as observed earlier, in a case where the contents of the dying declaration are at doubt, the corroborative materials are to be traced from the other evidence of the prosecution and as observed earlier by us, there are material and reliable evidences led by the prosecution leading to the conclusion about the genuineness of the contents of the dying declaration. Therefore, we cannot accept the contention of the learned Counsel for the appellant that the dying declaration of the deceased – Exh. 25, which has been duly proved by the medical evidence and the evidence of the Executive Magistrate, be discarded and the benefits be given to the accused. 18. In view of the aforesaid observations and discussions, we find that the ultimate decision taken by the learned Sessions Judge for finding A-1 as guilty for the alleged offences cannot be said to be erroneous. Once the offence under Section 302 of IPC is proved successfully by the prosecution and the Court finds that the accused is guilty for such an offence the sentence has to be of life-imprisonment, which has been imposed by the learned Sessions Judge. Under these circumstances, we find that the judgment and order passed by the learned Sessions Judge for holding the appellant – accused guilty for the offence under Section 302 read with Section 354 and Section 506(2) of IPC deserves to be confirmed. Hence, confirmed accordingly. 19. Appeal is dismissed.