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2015 DIGILAW 690 (GUJ)

State of Gujarat v. Rajak Habibbhai Memon

2015-07-13

ANANT S.DAVE, S.H.VORA

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Advocate Appeared : For Appellant/Petitioner/Plaintiff: Hardik Soni, A.P.P. For Respondents/Defendant: Y.J. Patel, Advocate Cases Referred: Shudhakar vs. State of M.P. Ramesh Babulal Doshi vs. State of Gujarat Ram Kumar vs. State of Haryana Brahm Swaroop and Anr. vs. State of U.P. Girja Nandini Devi and Ors. vs. Bijendra Narain Choudhury State of Karnataka vs. Hemareddy Alias Vemareddy and Anr. JUDGMENT S.H. Vora, J. 1. Challenge in the present appeal preferred under Section 378 of the Code of Criminal Procedure, 1973 (for short, the 'Code') by the appellant-State of Gujarat is the judgment dated 19.07.1993 passed by the learned Additional Sessions Judge, Bhavnagar in Sessions Case No. 70 of 1993 whereby, both the accused persons came to be acquitted of the charge of offence punishable under Sections 498(A), 323, 504, 302 and 114 of the Indian Penal Code (for short, 'I.P.C.'). 2. The prosecution case as unfolded before the trial Court can be stated thus. 3. That, Ms. Merunben, wife of respondent No. 1 - accused and sister-in-law of respondent No. 2 - accused died due to extensive burn injuries which she received at about 7:00 p.m. on 18.01.1993 at her matrimonial home situated in Voravad at Botad, District: Bhavnagar. The prosecution case, as projected before the trial Court, reveal that on the date of incident i.e. on 18.01.1993 at about 7:00 p.m., the respondent No. 1 - accused came at home and started giving abuses to his wife-Ms. Merunben, who was playing with her son - Faizal and also asked her as to why she is sitting outside the home and after calling her inside the house, respondent No. 1 - accused told her that though she has been refused to sit outside, why she gone out of the house and in reply, Ms. Merunben informed that as the minor son was crying, she took her son out of the home and because of this reply, respondent No. 1 - accused restrained her to speak and went inside the house and brought out stove and poured kerosene over Ms. Merunben and set her on fire. The respondent No. 1 - accused married to said Ms. Merunben before 2 to 3 years prior to the alleged incident and on the fateful day of incident, both Ms. Merunben and respondent No. 1 - accused were staying separately from the in-laws of Ms. Merunben. Merunben and set her on fire. The respondent No. 1 - accused married to said Ms. Merunben before 2 to 3 years prior to the alleged incident and on the fateful day of incident, both Ms. Merunben and respondent No. 1 - accused were staying separately from the in-laws of Ms. Merunben. It is further the case of the prosecution that the sister of the respondent No. 1 - accused i.e. accused No. 2 herein, was provoking the respondent No. 1 - accused against deceased-Ms. Merunben and, therefore, he was extending mental and physical torture to said Ms. Merunben since very long time and, therefore, he and Ms. Merunben started to stay in the house of one Mr. Abdulbhai Bhurabhai in the same village before 2 to 3 months prior to the incident in question. It is the specific case of the prosecution that after pouring kerosene on deceased - Ms. Merunben, respondent No. 1 - accused set her on fire and she was taken to the Sonavala hospital, Botad. At that time, she was unconscious but according to the prosecution case, after some treatment, injured - Ms. Merunben regained consciousness. According to the prosecution case, initially, the incident was recorded as accident but after injured Ms. Merunben was taken to the hospital, doctor attached to the hospital informed the police and the concerned police, in turn, informed the Executive Magistrate to record the dying declaration of injured - Ms. Merunben and accordingly, the dying declaration was recorded by the Executive Magistrate. The concerned Investigating Officer drawn panchnama of the scene of offence and recovered muddamal stove and other articles. The Investigating Officer recorded complaint of injured - Ms. Merunben as stated by her as to how the incident occurred. It is further the case of the prosecution that while inured Ms. Merunben was under treatment at hospital, she died at 3:15 a.m. on 19.01.1993. 4. On completion of the usual investigation, the chargesheet was filed against both the accused-persons and charge for the offences, as aforesaid, was framed against both the accused persons, who pleaded not guilty and claimed trial. The prosecution examined 15 witnesses and produced various documents, more particularly, two dying declarations at Exhs. 17 and 48. The learned Additional Sessions Judge having examined the prosecution evidence, found that the respondents-accused are not guilty of the offence as charged and tried and, therefore, acquitted them. 5. The prosecution examined 15 witnesses and produced various documents, more particularly, two dying declarations at Exhs. 17 and 48. The learned Additional Sessions Judge having examined the prosecution evidence, found that the respondents-accused are not guilty of the offence as charged and tried and, therefore, acquitted them. 5. It is well settled principle of criminal law that an accused can be convicted only when, on the evidence produced, the Court is in a position to come to a definite conclusion beyond the possibility of reasonable doubt that the accused committed offence with which he stood charged. No conviction can be based on possibilities nor it is permissible for the Court to speculate as to what had really happened. The accused can be convicted only when the prosecution succeeds in proving that the incident had taken place in the way as alleged by it. In other words, the prosecution must stand on its own legs and cannot take advantage of the weakness of the defence. As we have noticed that the respondent No. 1 - accused has not cross-examined any of the prosecution witnesses and the trial virtually proceeded without any effective cross-examination made by the respondent No. 1 - accused. 6. To begin with, there is no dispute that deceased - Ms. Merunben died due to 80 to 99% extensive burn injuries all over the body when she was shifted at Bhavnagar for further treatment. Unfortunately, no medical evidence is brought on record about the condition of deceased - Ms. Merunben and the nature of treatment given to her at Bhavnagar. Meaning thereby, when deceased - Ms. Merunben brought to Sonavala hospital at Botad, she had 80 to 99% extensive burn injuries all over the body but it is required to be probed whether the burn injuries sustained by her were accidental or homicidal in view of evidence produced by the prosecution. In the case on hand, we have two dying declarations of the deceased vide Exhs. 17 and 48 and before placing reliance on any of the dying declaration, it is required to refer to the law reiterated by the Hon'ble Apex Court in the case of Shudhakar V/s. State of Madhya Pradesh reported in (2012) 7 SCC 569 that in the cases involving multiple dying declarations, which of the various dying declarations should be believed by the Court. In para 21 of the said judgment, the Hon'ble Apex Court observed as under:- "21. Having referred to the law relating to dying declaration, now we may examine the issue that in cases involving multiple dying declarations made by the deceased, which of the various dying declarations should be believed by the Court and what are the principles governing such determination. This becomes important where the multiple dying declarations made by the deceased are either contradictory or are at variance with each other to a large extent. The test of common prudence would be to first examine which of the dying declarations is corroborated by other prosecution evidence. Further, the attendant circumstances, the condition of the deceased at the relevant time, the medical evidence, the voluntariness and genuineness of the statement made by the deceased, physical and mental fitness of the deceased and possibility of the deceased being tutored are some of the factors which would guide the exercise of judicial discretion by the Court in such matters." 7. Dying Declaration, if found reliable, truthful and free from any embellishment, such a dying declaration, by itself, can be sufficient for recording conviction even without looking for any corroboration. The law is settled in series of pronouncements by the Hon'ble Apex Court that dying declaration is admissible in evidence and its admissibility is founded by the principle of necessity. The above in the form of statement of law, by way of preamble to this judgment has been necessitated as the State in this appeal challenges or puts in question acquittal of both the respondents-accused from the charge, as framed against them and seeks reversal of the impugned judgment and invites this Court to record finding of guilt based on two dying declarations made before P.W. 2 - Mr. Ravjibhai Thakarshibhai Dhola vide Exh. 17 and P.W. 15 - P.1. Mr. Ramjibhai Lavjibhai vide Exh. 48. 8. We are conscious of the fact that it is not the number of dying declarations which will weigh with the Court. A singular dying declaration not suffering from any infirmity and found worthy of being relied on may form the basis of conviction. While appreciating the evidence, certain crucial facts, as revealed before the trial Court, are required to be kept in mind while reassessing the evidence adduced before the trial Court. A singular dying declaration not suffering from any infirmity and found worthy of being relied on may form the basis of conviction. While appreciating the evidence, certain crucial facts, as revealed before the trial Court, are required to be kept in mind while reassessing the evidence adduced before the trial Court. According to the prosecution, the deceased was brought at Sonavala hospital Botad at 7:30 p.m. on 18.01.1993. P.W. 2 - Mr. Ravjibhai Thakarshibhai Dhola - Executive Magistrate received Yadi to record dying declaration of deceased - Ms. Merunben at 20:10 hrs. and he recorded dying declaration Exh. 17 at 20:20 hrs. whereas, according to P.W. 15 - Mr. Ramjibhai Lavjibhai, he recorded the complaint Exh. 48 before dying declaration Exh. 17 is recorded by the Executive Magistrate. In the treatment papers Exh. 12, we have not found anything about condition of deceased - Ms. Merunben as to whether she was conscious or unconscious, more particularly, during the time from 19:50 to 20:20 hrs. In other words, both the dying declarations Exhs. 17 and 48 came to be recorded in quick succession and that too within 30 minutes. On the other hand, it is the case of the prosecution that the deceased became unconscious after the incident and according to her version recorded in the first dying declaration Exh. 48, she regained consciousness after some treatment. There is nothing on record as to when the treatment was started and also nature of treatment given to deceased - Ms. Merunben at Sonavala hospital, Botad. In this factual background of the case, we have to consider the reliability and truthfulness of the dying declarations Exhs. 17 and 48 because P.W. 14 - Mr. Amin Jamalbhai, brother of the deceased did not support the prosecution case. 9. We have heard the submissions made by the learned A.P.P. Mr. Hardik Soni appearing for the appellant-State and learned advocate Mr. Y.J. Patel appearing for the respondent No. 1 - accused and minutely examined the oral and documentary evidence placed before the trial Court. 10. While admitting the appeal, leave was refused qua respondent No. 2 - accused and, therefore, now, we will have to examine whether any interference is necessitated or required in the present appeal or not. 11. We have noticed that both the dying declarations Exhs. 10. While admitting the appeal, leave was refused qua respondent No. 2 - accused and, therefore, now, we will have to examine whether any interference is necessitated or required in the present appeal or not. 11. We have noticed that both the dying declarations Exhs. 17 and 48 are inconsistent with each other in respect of the reasons leading to the incident in question. P.W. 2 - Mr. Ravjibhai Thakarshibhai Dhola when questioned to deceased - Ms. Merunben as to anybody has grudge or reasons towards her, in reply, she stated that her husband - Mr. Rajak Habibbhai Memon poured kerosene on her and set her on fire. Looking to the nature of question and answer, it appears that injured - Ms. Merunben did not properly understand the question and this indicates that she may not be in a fit state of mind. In the said declaration Exh. 17, she has not assigned any role to accused No. 2 whereas, in her first declaration Exh. 48, she categorically stated that it is because of respondent No. 2, her husband was extending mental and physical cruelty to her. Thus, on this material aspect, we have noticed inconsistent version of the declarant and, therefore, it is not safe to rely upon any of the declaration, namely, Exhs. 17 and 48, so as to come to the conclusion that the respondent No. 1 - accused is the author of the crime. 12. We have ourselves minutely examined both the dying declarations Exhs. 17 and 48 along with the oral evidence of P.Ws. 2 and 15, who recorded the dying declarations made by deceased-Ms. Merunben. No doubt, it is the consistent case of the prosecution that when declaration Exh. 17 was made by the deceased, she was conscious and was in a position to give answer to the questions and to that effect, endorsement of P.W. 1 - Dr. Khimjibhai Merambhai, who was on duty, was also obtained. Firstly, it is required to be noted that P.W. 15 - P.I. Mr. Ramjibhai Lavjibhai stated that he obtained the dying declaration at Sonavala hospital after obtaining endorsement of P.W. 1 - Dr. Khimjibhai Merambhai as to the condition of the deceased and he recorded dying declaration through constable Mr. D.H. Zala as per the facts stated by deceased - Ms. Merunben. In contrast to this evidence, P.W. 1 - Dr. Ramjibhai Lavjibhai stated that he obtained the dying declaration at Sonavala hospital after obtaining endorsement of P.W. 1 - Dr. Khimjibhai Merambhai as to the condition of the deceased and he recorded dying declaration through constable Mr. D.H. Zala as per the facts stated by deceased - Ms. Merunben. In contrast to this evidence, P.W. 1 - Dr. Khimjibhai Merambhai, in terms, deposed before the trial Court that he started to give treatment to the patient and also informed the police and in his presence, declaration of deceased-Ms. Merunben was recorded. According to this witness, he informed the police as per Yadi Exh. 13 and, in turn, P.S.O. Mr. D.H. Zala came at hospital at 19:50 hrs. and thereafter, P.W. 2 - Mr. Ravjibhai Thakarshibhai Dhola - Executive Magistrate came at hospital for recording dying declaration. Surprisingly, P.W. No. 1 - Dr. Khimjibhai Merambhai nowhere stated or disclosed presence of P.W. 15 in Sonavala hospital but it was P.S.O. Mr. D.H. Zala, who came at hospital at 19:50 hrs. and in his presence, second dying declaration Exh. 17 came to be recorded . Therefore, the prosecution ought to have examined P.S.O. Mr. D.H. Zala in this case so as to clarify as to who, in fact, reached the Sonavala hospital at 19:50 hrs. for investigation purpose. This inconsistent version creates lot of doubt as to reliability of the prosecution case. 13. Apart from it, we do not find any evidence as to when the treatment was started and when it ended so as to prove that the deceased regained consciousness and became capable to give her statement between 19:50 to 20:20 hrs. There is no iota of evidence in this regard. Therefore, we cannot place reliance on such evidence as to the occurrence of the incident and, therefore, both the dying declarations are neither truthful nor correct, much less, inspire any confidence and considering the overall facts and attending circumstances, more particularly, the evidence of the brother of the deceased giving clean chit to the respondent No. 1 - accused, it is unsafe to place reliance on any of the dying declarations Exh. 17 and 48 to establish the guilt of respondent No. 1 - accused. 14. Lastly, we have also noticed that the respondent No. 1 - accused suffered some burn injuries on his left ring finger and middle finger as per the medical certificate Exh. 22. 17 and 48 to establish the guilt of respondent No. 1 - accused. 14. Lastly, we have also noticed that the respondent No. 1 - accused suffered some burn injuries on his left ring finger and middle finger as per the medical certificate Exh. 22. It appears that the respondent No. 1 - accused was examined by P.W. 4 - Dr. Pareshkumar Jerambhai on 21.01.1993 i.e. after 3 days of the incident in question. Unfortunately, the prosecution has not explained about injuries suffered by the respondent No. 1 - accused nor the learned trial Judge put any question in this regard in the further statement recorded under Section 313 of the Code. 15. Considering the overall facts and circumstances of the case and reasons recorded by the learned trial Judge, we do not find any substance in the appeal preferred at the instance of the State. 16. It is a cardinal principle of criminal jurisprudence that in an acquittal appeal if other view is possible then also appellate Court cannot substitute its own view by reversing the acquittal into conviction, unless the findings of the trial Court are perverse, contrary to the material on record, palpably wrong, manifestly erroneous or demonstrably unsustainable. (See Ramesh Babulal Doshi V. State of Gujarat (1996) 9 SCC 225 ). In the instant case, the learned A.P.P. has not been able to point out to us as to how the findings recorded by the learned trial Court are perverse, contrary to material on record, palpably wrong, manifestly erroneous or demonstrably unsustainable. 17. In the case of RAM KUMAR V. STATE OF HARYANA, reported in AIR 1995 SC 280 , Supreme Court has held as under: "The powers of the High Court in an appeal from order of acquittal to reassess the evidence and reach its own conclusions under Sections 378 and 379, Cr.P.C. are as extensive as in any appeal against the order of conviction. But as a rule of prudence, it is desirable that the High Court should give proper weight and consideration to the view of the Trial Court with regard to the credibility of the witness, the presumption of innocence in favour of the accused, the right of the accused to the benefit of any doubt and the slowness of appellate Court in justifying a finding of fact arrived at by a Judge who had the advantage of seeing the witness. It is settled law that if the main grounds on which the lower Court has based its order acquitting the accused are reasonable and plausible, and the same cannot entirely and effectively be dislodged or demolished, the High Court should not disturb the order of acquittal." 18. It is well settled principle of law that if two views are possible, the appellate court should not disturb the finding of acquittal recorded by the trial court unless there are compelling reasons to do so. In this regard, broad proposition of law laid down by the Honourable Apex Court in the case of Brahm Swaroop And Another v. State of U.P., (2011) 6 SCC 288 more particularly, paragraph 38 is relevant for the disposal of this appeal. Therefore, the same is reproduced hereinbelow: "38. Thus, the law on the issue can be summarised to the effect that in exceptional cases where there are compelling circumstances, and the judgment under appeal is found to be perverse, the appellate court can interfere with the order of acquittal. The appellate court should bear in mind the presumption of innocence of the accused and further that the trial Court's acquittal bolsters the presumption of his innocence. Interference with the decision of the trial court in a routine manner, where the other view is possible should be avoided, unless there are good reasons for such interference." 19. It may be noted that this is an acquittal appeal in which Court would be slow to interfere with the order of acquittal. Infirmities in the prosecution case go to the root of the matter and strike a vital blow on the prosecution case. In such a case, it would not be safe to set aside the order of acquittal, more particularly, when the evidence has not inspired confidence of the learned trial Judge. Infirmities in the prosecution case go to the root of the matter and strike a vital blow on the prosecution case. In such a case, it would not be safe to set aside the order of acquittal, more particularly, when the evidence has not inspired confidence of the learned trial Judge. As this Court is in general agreement with the view expressed by the learned trial Judge, it is not necessary for this Court either to reiterate the evidence of the prosecution witnesses or to restate reasons given by the learned trial Judge for acquittal and in our view, expression of general agreement with the view taken by the learned trial Judge would be sufficient in the facts of the present case for not interfering with the judgment of the learned trial Judge and this is so, in view of the decisions rendered by the Hon'ble Supreme Court in the case of GIRJA NANDINI DEVI AND OTHERS V. BIJENDRA NARAIN CHAUDHARI, : AIR 1967 SC 1124 and STATE OF KARNATAKA V. HEMA REDDY AND ANOTHER, : AIR 1981 SC 1417 . 20. On overall reassessment and re-appreciation of evidence, this Court is satisfied that there is no infirmity in the reasons assigned by the learned trial Judge for acquitting the respondent No. 1 - accused. Suffice it to say that the learned trial Judge has given cogent and convincing reasons for acquitting the respondent No. 1 - accused and the learned A.P.P. has failed to dislodge the reasons given by the learned trial Judge and convince this Court to take a view contrary to the one taken by the learned Judge. 21. Seen in the above context, we do not find any valid reason or justifiable ground to interfere with the impugned judgment and order acquitting the respondent No. 1 - accused of the offences with which he was charged. Hence, the appeal deserves dismissal and is accordingly dismissed. Bail bond shall stand cancelled.