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2014 DIGILAW 861 (GUJ)

Majidmiyan Dilbasmiyan Malek v. State of Gujarat

2014-08-04

A.G.URAIZEE, K.S.JHAVERI

body2014
JUDGMENT Abdullah Gulamahmed Uraizee, J. 1. The appellant - original accused was inter alia sentenced to undergo life imprisonment and was directed to pay fine of Rs. 5,000/- in default, to undergo simple imprisonment for one year for offence punishable under section 302 of Indian Penal Code by impugned judgment and order dated 30.10.2004 in Sessions Case No. 267 of 2003 by the Additional Sessions Judge, Fast Track Court, Nadiad. At the outset, it needs to be stated that the appellant, during the pendency of this appeal, was released on temporary bail by this Court for 15 days vide order dated 28.12.2005 passed in Criminal Misc. Application No. 15080 of 2005 on the ground of his own treatment and was required to surrender himself before the jail authorities on or before 22.01.2006 but he misused the liberty granted in his favour by this court and is absconding till date. However, in view of the order dated 17.02.2009 passed by a Co-ordinate Bench of this Court in Criminal Appeal No. 918 of 2001, this appeal being filed by absconding appellant-accused is proceeded with and decided on merits. 2. The brief matrix of the prosecution case as disclosed during the trial is that the appellant happens to be the brother-in-law of the deceased Shahista Banu and that on 18.08.2003, at around 1600 hours while deceased Shahista Banu was at her maternal home in Memdabad, the appellant with a view to murder her, poured kerosene on her and set her ablaze, thereby committing offence punishable under section 302 of Indian Penal Code. 2.1 A complaint in respect of the said incident was registered with Mehamadabad Police Station being C.R. I-No. 185 of 2003 for offence punishable under section 302 of Indian Penal Code. Necessary panchnamas were drawn and investigation was carried out and charge-sheet was submitted against the appellant. Thereafter, as the case was exclusively triable by the Sessions Court, the same was committed to the Sessions Court at Nadiad under Section 209 of the Code, where it was registered as Sessions Case No. 267 of 2003. Charge vide Ex. 10 came to be framed against the appellant. He pleaded not guilty and claimed to be tried. Thereafter, as the case was exclusively triable by the Sessions Court, the same was committed to the Sessions Court at Nadiad under Section 209 of the Code, where it was registered as Sessions Case No. 267 of 2003. Charge vide Ex. 10 came to be framed against the appellant. He pleaded not guilty and claimed to be tried. 2.2 The trial was initiated against the appellant and during the course of trial the prosecution examined following witnesses whose evidences have been read before us: 2.3 The prosecution also relied upon the following documents which have been perused by us during the course of hearing: 2.4 At the end of trial, after recording the statement of the accused and hearing arguments on behalf of prosecution and the defence, the learned Additional Sessions Judge convicted the appellant of the charges levelled against him by impugned judgment and order. Being aggrieved by and dissatisfied with the aforesaid judgment and order passed by the Sessions Court the appellant has preferred the present appeal. 3. Heard Mr. R.N. Singh, learned advocate appearing with Mr. Feroz Pathan, learned advocate for the appellant and Mr. H.S. Soni, learned APP appearing for respondent-State at considerable length. Both the advocates have taken us through the oral as well as documentary evidence recorded during the course of trial. 4. Mr. R.N. Singh contended that the deceased was suffering from mental disorder which fact is admitted by no one else but her father and mother-P.W. 2 & 1 respectively. It is, further, contended that the first marriage of the deceased Shahista Banu had resulted into a divorce because of her unstable mental state and therefore according to his submission there is a strong possibility that she herself committed suicide and the appellant is wrongly roped in, in the alleged offence. So far as the dying declaration is concerned, Mr. Singh has relied upon a decision of the Apex Court in the case of Bawa Ram and Another vs. Union Territory, Chandigarh, (2009) 13 SCC 270 and urged that since deceased was suffering from mental illness, the learned trial judge committed serious error in convicting the appellant for offence punishable under section 302 of Indian Penal Code. Therefore, he urged that the appeal may be allowed and the appellant may be acquitted. 5. On the other hand, opposing this appeal, Mr. Therefore, he urged that the appeal may be allowed and the appellant may be acquitted. 5. On the other hand, opposing this appeal, Mr. H.S. Soni supported the impugned judgment of the learned trial judge and submitted that the prosecution has proved the case against the appellant beyond reasonable doubt and that the dying declaration and the history before the doctor also strengthens the prosecution case against the appellant and therefore he has urged that the appeal may be dismissed. 6. The prosecution has examined Shahnazbibi-P.W. 1 vide Ex. 13 and Rafikmiya-P.W. 2 vide Ex. 14. These two witnesses happen to be the mother and father respectively of the deceased Shahistabanu. P.W. 1-Shahnazbibi, the mother of the deceased does not support the prosecution case but as per the settled proposition of law expounded by the Apex Court that even the evidence of hostile witness to the extent it supports the prosecution case can always be considered by the court. P.W. 1 and P.W. 2 have consistently stated in their oral evidence before the trial court that deceased was suffering from mental illness and therefore her first marriage had resulted in a divorce. But then the question that is posed before us is that whether because of the mental instability the deceased had committed suicide or not. In our opinion the dying declaration at Ex. 33 and the history before the doctor is sufficient to fasten the liability of murder of Shahistabanu on the appellant. 6.1 The evidence of the Executive Magistrate who recorded the dying declaration of the deceased is on record. He has been examined as P.W. 7 by the prosecution. P.W. 7, Shri Kishorebhai Pandya has deposed that pursuant to the yadi received by him from Memdabad police station he went to Memdabad Hospital to record the statement of the victim. He has deposed that after verifying the mental and physical fitness of the victim from the doctor, he started recording the dying declaration. He has stated that she had mentioned that the appellant had poured kerosene over her and set her on fire. He has stated that she mentioned in the dying declaration that there was no one in the house at that time. He mentioned that the deceased also stated that the appellant had a quarrel with her. He has stated that she had mentioned that the appellant had poured kerosene over her and set her on fire. He has stated that she mentioned in the dying declaration that there was no one in the house at that time. He mentioned that the deceased also stated that the appellant had a quarrel with her. 6.2 In the case of Gopal vs. State of Madhya Pradesh, (2009) 12 SCC 600 : 2009 Cri LJ 2434 (SC), the Apex Court in para 13 has 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 declarations 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 declarations, that is to say, if there is more than one dying declaration they should be consistent. 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 or not. While scrutinising 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." 6.3 In the case of Shudhakar vs. State of Madhya Pradesh, (2012) 7 SCC 569 : 2012 Cri LJ 3985 (SC), the Apex Court has held that a "dying declaration" is the last statement made by a person at a stage when he is in serious apprehension of his death and expects no chances of his survival. At such time, it is expected that a person will speak the truth and only the truth and that normally in such situations, courts attach intrinsic value of truthfulness to such statement. At such time, it is expected that a person will speak the truth and only the truth and that normally in such situations, courts attach intrinsic value of truthfulness to such statement. It is also held that once such statement has been made voluntarily, it is reliable and is not an attempt by deceased to cover up truth or falsely implicate a person, then courts can safely rely on such dying declaration and it can form the basis of conviction, moreso where version given by other prosecution evidence, there is no reason for courts to doubt truthfulness of such dying declaration. 6.4 As far as the veracity of the dying declaration before the Executive Magistrate is concerned, it is required to be noted that the Executive Magistrate in his deposition has clearly mentioned that the deceased was conscious while recording the declaration and the endorsement of the doctor regarding the fitness of the patient was also taken before and after recording of the statement. He stated that the deceased answered his questions and also appended her right thumb impression after the procedure was over at around 05.15 p.m. 7. It shall not be out of place to mention that the courts have to be on guard to see that the dying declaration is not the result of either tutoring or prompting or a product of imagination and that due care and caution must be exercised in considering weight to be given to the dying declaration. The dying declaration has been recorded in a question - answer form and the state of mind of the deceased was noted before and after the recording by the doctor concerned. 8. Now we shall take up the other dying declaration of the deceased which was recorded in the form of history before the doctor. The history of the patient was recorded by P.W. 6-Dr. Naishad Bhatt when she was brought to Mahemadabad Hospital for treatment. 8.1 P.W. 6-Dr. Naishad Bhatt vide his deposition at Ex. 26 has stated that on 18.08.2003 while he was on duty at Mahemadabad Hospital the deceased was brought to the hospital for treatment pursuant to burn injuries sustained by her. This witness has stated that when he asked about the history of the burns, the deceased had informed him that her brother-in-law (nandoi) had poured kerosene on her and set her on fire. This witness has stated that when he asked about the history of the burns, the deceased had informed him that her brother-in-law (nandoi) had poured kerosene on her and set her on fire. This witness has stated that the deceased was conscious and oriented while giving history of the burns. He has stated that the deceased had received burn injuries on face, neck, chest, abdomen, both the hands and back. He stated that the hair was also burnt. This witness has stated that the burn injuries sustained by the deceased were to the extent of 100% and that the deceased smelt of kerosene when was brought to hospital. 9. The judgment relied upon by learned advocate for the appellant in the case of Bawa Ram 2009 (13) SCC 270 ) (supra) does not help the appellant but on the contrary if the facts of the case are considered, the ratio expounded therein helps the prosecution rather than the appellant. The Apex Court held in the above cited judgment that the dying declaration can be basis for conviction even if eye witnesses do not support the prosecution case but the Apex Court has put a rider that if the deceased was of unsound mind and had suicidal tendency the effect of such mental state cannot be lost sight of while relying upon the dying declaration. In the case on hand it is true that it emerges from the oral evidence of the witnesses that the deceased Shahistabanu had some mental illness but there is no evidence on record that the mental illness was of such degree so as to commit suicide. Moreover there is no evidence on record that in the past the deceased had exhibited any suicidal tendencies or had attempted to commit suicide. 10. In fact, in the case of Krishan vs. State of Haryana, (2013) 3 SCC 280 , the Apex Court has held that it is not an absolute principle of law that a dying declaration cannot form the sole basis of conviction of an accused. 10. In fact, in the case of Krishan vs. State of Haryana, (2013) 3 SCC 280 , the Apex Court has held that it is not an absolute principle of law that a dying declaration cannot form the sole basis of conviction of an accused. Where the dying declaration is true and correct, the attendant circumstances show it to be reliable and it has been recorded in accordance with law, the deceased made the dying declaration of her own accord and upon due certification by the doctor with regard to the state of mind and body, then it may not be necessary for the court to look for corroboration. In such cases, the dying declaration alone can form the basis for the conviction of the accused. But where the dying declaration itself is attended by suspicious circumstances, has not been recorded in accordance with law and settled procedures and practices, then, it may be necessary for the court to look for corroboration of the same. 11. However, the complaint, the dying declaration recorded by the Executive Magistrate and the history recorded before the doctor is duly corroborated with the ocular evidence as well as medical reports and it is clear that the deceased died a homicidal death due to the act of the appellant in pouring kerosene over and setting her ablaze. We do find that the dying declaration is trust worthy. The dying declaration can be safely relied upon to convict the accused. We, therefore, do not find any reason to disbelieve the dying declaration. The trial court has considering all these facts convicted the accused under section 302 of Indian Penal Code which is just and proper. We, therefore, do not see any reason for interference in the appeal. 12. In a recent decision of the Apex Court in the case of Bhaikon alias Bakul Borah vs. State of Assam, JT 2013 (10) SC 373 has held as under: "15. This Court, in a series of decisions has held that life imprisonment means imprisonment for whole of life subject to the remission power granted under Articles 72 and 161 of the Constitution of India. This Court, in a series of decisions has held that life imprisonment means imprisonment for whole of life subject to the remission power granted under Articles 72 and 161 of the Constitution of India. [Vide – Life Convict alias Khoka Prasanta Sen vs. B.K. Srivastava & Others, (2013) 3 SCC 425 : 2013 AIR SCW 1006; Mohinder Singh vs. State of Punjab, (2013) 3 SCC 294 : 2013 Cri LJ 1559; Sangeet and Another vs. State of Haryana, (2013) 2 SCC 452 : 2013 Cri LJ 425 (SC); Rameshbhai Chandubhai Rathod vs. State of Gujarat, (2011) 2 SCC 764 : 2011 Cri LJ 1458 (SC); Chhote Lal vs. State of Madhya Pradesh, (2011) 8 SCR 239; Mulla and Another vs. State of Uttar Pradesh, (2010) 3 SCC 508: 2010 Cri LJ 1440 (SC); Maru Ram vs. Union of India & Others, (1981) 1 SCC 107 : AIR 1980 SC 2147 ; State of Madhya Pradesh vs. Ratan Singh & Others, (1976) 3 SCC 470 : 1976 Cri LJ 1192 and Gopal Vinayak Godse vs. State of Maharashtra, AIR 1961 SC 600 ]. 16. In view of the clear decisions over decades, the argument of learned senior counsel for the appellant-accused is unsustainable, at the same time, we are not restricting the power of executive as provided in the Constitution of India. For adequate reasons, it is for the said authorities to exercise their power in an appropriate case." Accordingly, appeal is hereby dismissed. The judgment and order dated 30.10.2004 passed by the Additional Sessions Judge, Fast Track Court, Nadiad in Sessions Case No. 267 of 2003 is confirmed. However, life imprisonment as awarded by the trial court would not be till last breath and the case of the appellant may be reviewed by the appropriate authority after 14 years of his serving sentence considering the decision of Apex Court in the case of Bhaikon alias Bakul Borah (supra). R & P, if lying with this court, to be sent back forthwith. Appeal dismissed.