Research › Search › Judgment

Gujarat High Court · body

2015 DIGILAW 77 (GUJ)

Prafulbhai Manilal Doshi Jain v. State of Gujarat

2015-01-21

ANANT S.DAVE, G.R.UDHWANI

body2015
Judgment Anant S. Dave, J. 1. The appellant-original accused has filed this appeal under Section 374 of the Criminal Procedure Code, 1973 [for short, 'the Code, 1973'] against the judgment and order dated 10.8.1999 delivered in Sessions Case No. 83 of 1995 by learned Additional Sessions Judge, Court No. 9, Ahmedabad convicting and sentencing the appellant for life imprisonment with fine of Rs. 500/- and in default thereof to undergo rigorous imprisonment for 1 month for the offences punishable under Section 302 of the Indian Penal Code. Initially, while admitting the appeal, considering the prima facie aspects, on 4.11.1999 this Court passed the following order: "Admit. 2. Learned Counsel for the appellant and the Addl. P.P. were also heard on the question of suspension of sentence. Mr. A.D. Shah, learned Counsel for the appellant has invited our attention to the dying declarations and the statements of P.W. 3, Vimlaben, w/o. the deceased Ramesh, who has been declared hostile by the prosecution. Mr. A.D. Shah, learned Counsel for the appellant has also pointed out that the appellant was on bail during the trial. 3. In the facts and circumstances of the case we are inclined to suspend the sentence awarded to the present appellant. Learned APP has prayed that reasons for suspension of sentence may not be recorded in this order. 4. In the facts and circumstances of the case, without expressing any opinion on the merits of the case, we hereby direct that the sentence awarded to the present appellant (original accused), namely, Prafulbhai Manilal Jain in Sessions Case No. 83 of 1995, by the learned Additional City Sessions Judge, Ahmedabad on 10.8.1999, shall remain suspended and the appellant shall be released on bail on usual terms and conditions subject to the satisfaction of the trial Court, provided he furnishes a personal bond of Rs. 10,000/- (Rupees ten thousand only) and two sureties of Rs. 5,000/- (Rupees five thousand only) each. Direct service is permitted." 2. The case of the prosecution in nutshell is that the accused own and run a factory in the name and style of Mahavir Industries where the deceased and his wife were working as laborers. The accused developed affair with his wife-Vimlaben and frequently used to visit her residence. 5,000/- (Rupees five thousand only) each. Direct service is permitted." 2. The case of the prosecution in nutshell is that the accused own and run a factory in the name and style of Mahavir Industries where the deceased and his wife were working as laborers. The accused developed affair with his wife-Vimlaben and frequently used to visit her residence. On 29.3.1994 about 3:00 p.m. when deceased had gone to his residence, he found the accused having sexual intercourse with Vimlaben and immediately the accused realizing this act being seen by the deceased, took out kerosene and sprinkled over the deceased and set ablaze by lighting the match stick. Vimlaben tried to save her husband and in the process, she also received burn injuries on back portion and later on both of them were admitted in Shardaben Hospital, Ahmedabad and during the treatment deceased succumbed to burn injuries. Thus, the accused committed murder of deceased - Ramesh Vanzara. 3. Upon committal of case to the Sessions Court, it was numbered as Sessions Case No. 83/1995 and at the end of trial after appreciating 10 witnesses and other documentary evidence, the learned Judge vide judgment and order dated 10.8.1999 convicted and sentenced the accused, as stated above. 4. The following evidence appear on record: Medical Evidence Exh. Page PW 1 21 Gaurang Govindbhai Kothari 87 22 P.M. Report 91 PW 2 23 Jagdish Sunderlal  Permar 107 24 Yadi to Executive Magistrate 117 25 Dying Declaration 119 26 Copy of Dying Declaration 123 PW 5 30 Gajanand Krishnaji 139 31 FIR of deceased 149 PW 10 46 Dr. 4. The following evidence appear on record: Medical Evidence Exh. Page PW 1 21 Gaurang Govindbhai Kothari 87 22 P.M. Report 91 PW 2 23 Jagdish Sunderlal  Permar 107 24 Yadi to Executive Magistrate 117 25 Dying Declaration 119 26 Copy of Dying Declaration 123 PW 5 30 Gajanand Krishnaji 139 31 FIR of deceased 149 PW 10 46 Dr. Virendra Kanhayalal Shah 229 47 Case Paper 233 Injured Eye-witnesses PW 3 27 Vimlaben Ukaji (wife of Rameshbhai – deceased Hostile) 127 Panch-witnesses PW 4 28 Hasmukhbhai Sarubhai – Hostile 139 29 Arrest of accused and seizure of 5 Bills 123 PW 6 33 Rameshkumar Tarachand, owner of Ankit Jewellers 159 Police officers PW 5 30 Gajanand Krishnaji 139 32 Report under 157 to register of offence 155 PW 7 34 Ranjitsinh Chainsinh 161 35 Entry from Vardi Book 165 PW 8 36 Prahladbhai Ramsingbhai, Writer of Exhibit 35 167 PW 9 38 Mahendrasinh Pratapsing Nakum 171 PW 5 39 Inquest Report 177 40 Forwarding letter to FSL 183 41 Receipt of muddamal by FSL 197 42 Forwarding letter from FSL 199 43 Forwarding letter from FSL 201 44 Forwarding letter from FSL 211 45 Forwarding letter from FSL (Biology Department) with Serological Report 221 5. Mr. A.D. Shah, learned Counsel for the appellant would contend that sole basis for conviction of the accused rests on the dying declaration recorded on the eve of 29.03.1994 by the Executive Magistrate on the ground that such dying declaration inspires confidence and it is trustworthy. The above reasoning of learned Judge ignoring all other evidence on record result into miscarriage of justice and, therefore, the judgment and order of conviction along with record and proceedings of the case available with evidence need to be careful examined by the - Court in appellate jurisdiction conferred under Section 374 of the Code, 1973. 5.1. Mr. A.D. Shah, leaned Counsel for the appellant, has broadly taken us through the documentary evidence like dying declaration dated 29.3.1994 in the context of complaint of the complainant-husband, who received burn injuries and succumbed to the injuries; immediate information disclosed before the incharge Medical Officer/doctor of Shardaben Hospital, who recorded the statement of injured; non-examination of Dr. 5.1. Mr. A.D. Shah, leaned Counsel for the appellant, has broadly taken us through the documentary evidence like dying declaration dated 29.3.1994 in the context of complaint of the complainant-husband, who received burn injuries and succumbed to the injuries; immediate information disclosed before the incharge Medical Officer/doctor of Shardaben Hospital, who recorded the statement of injured; non-examination of Dr. Himanshu Naik and doctor Akshit Naik, failure on the part of the prosecution to produce Panchnama of scene of offence; no reference made in spite of statements of independent witnesses neighbors, non-production of dying declaration of Vimlaben, wife of the deceased, who also received injuries after taking over investigation of crime by Crime Branch; and in absence of any further evidence other than what was collected by Investigating Officer initially and non-examination of the said officer of Crime Branch, who completed the investigation, and all these aspects would go to show that unfair and non-transparent and selective investigation was carried out ignoring material piece of evidence. Inter alia it is submitted that if the dying declaration Exh. 25 is examined on its own strength and version of the complainant viz. the disclosure of the crime, it is not trustworthy, reliable or inspires any confidence. According to learned Counsel for the appellant, till the Crime Branch had taken over investigation, recording of information [Yadi] given by the deceased to the Medical Officer while admitting to the hospital, discloses homicidal burn injuries and even information [Yadi] given by Police Constable at Exh. 24 to the Executive Magistrate reveal that patient had received burn injuries at his residence. It is also submitted that if the version of the deceased recorded in dying declaration dated 29.3.1994 is perused and examined as a whole, it further reveals unnatural conduct of not only deceased but even of accused in the circumstances. It is submitted that as stated in the complaint when deceased had gone to his residence around 3.00 p.m., he went for bringing tea at nearby tea stall for accused and on his return, he saw his wife Vimlaben in a compromising position with accused. It is submitted that as stated in the complaint when deceased had gone to his residence around 3.00 p.m., he went for bringing tea at nearby tea stall for accused and on his return, he saw his wife Vimlaben in a compromising position with accused. If the above version of the complainant deceased is tested on the touchstone of ordinary and natural Behavior of any person, in such circumstances, the reaction would be violent and all attempts would be made to see that person committing sexual intercourse with his wife would not only be taken to task, but would also be dealt with severely. Even the alleged conduct of accused is unnatural inasmuch as after committing such an act and caught red handed, he would ordinarily make his escape good and not indulge into any quarrel or scuffle so as to involve him and embarrass in presence of neighbors. It is, therefore, submitted that if case of prosecution established and so believed by the learned Judge is considered in the above grounds and the decisions of the Apex Court, a case is made out to reverse the judgment and order of conviction and sentence passed by the learned Judge. Learned Counsel for the appellant places reliance on the decision of State of U.P. v. Fakir Chand & Ors., reported in 1998 SCC (Cri.) 1356. 6. Mr. J.K. Shah, learned APP, appearing for the respondent-State of Gujarat has argued that when learned Sessions Judge has found truth-worthiness of dying declaration as reliable on the strength of dying declaration itself and so confirmed by Executive Magistrate leading to guilt of the accused, this Court would be loath in interfering with such recording which also gets corroboration from other evidence. Learned APP would further contend that if the complaint is perused as a whole, along with nature of relationship of accused with wife of the deceased, so admitted during the course of deposition by Vimlaben, presence of accused who was in the habit of visiting the residence of deceased is natural. Even during the course of investigation, it is found that some silver jewellery was purchased and pawned by deceased and his wife from nearby jewellery shop of the area for which assurance was given by the accused to get it released by paying security amount. Learned APP also relied upon the deposition of Dr. Gaurang, Police Officer, Executive Magistrate PW 2, Exh. Learned APP also relied upon the deposition of Dr. Gaurang, Police Officer, Executive Magistrate PW 2, Exh. 23 and submitted that PSI Mr. Nakum PW 9, Exh. 38 and submitted that learned Judge has rightly relied upon dying declaration by referring it in the context of principles of dying declaration that a person on the deathbed, in the present case husband, would not falsely implicate his wife attaching stigma by assassinating her character. Accordingly, it is submitted that when author of the dying declaration was conscious and clear state of mind and disclosed the above version, which was confirmed by the Executive Magistrate and supported by medical evidence, no interference is called for by this Court. 7. Upon careful perusal of the judgment and order of conviction and sentence and record and proceedings of the case, we have undertaken an exercise to peruse and appreciate the evidence oral as well as documentary, we find that, apart from lacuna in investigation of the offence registered, the approach of the Crime Branch, which took over investigation and completed it for which charge sheet was submitted and nowhere it was able to produce any additional piece of evidence than what was in existence or collected by the Investigating Officer initially. On the contrary, by not producing statements of independent witnesses viz. neighbors who immediately rushed to the scene of crime either to extinguish the fire or to mitigate aggravating circumstances were completely brushed under the carpet. Except on one occasion, no attempt was made to serve summons to important witnesses viz. Dr. Himanshu Naik and Dr. Akshat Naik. In case of Dr. Himanshu Naik, information was available to the extent that he had gone to United States of America and would return within 23 months, but still the Sessions Judge had not made any efforts so as to confirm or otherwise. Dr. Himanshu Naik was author of Medical Certificate of bum injuries which ordinarily form one of the important facets of investigation and can be produced and established before the trial Court to prove guilt of the accused was surprisingly not examined. So is the case of dying declaration/statement of Vimlaben, wife of the deceased who received burn injuries from back and survived, was again not forming part of the record. The above lacuna or inaction further continues by not presenting officer of crime branch who investigated and completed the investigation. 7.1. So is the case of dying declaration/statement of Vimlaben, wife of the deceased who received burn injuries from back and survived, was again not forming part of the record. The above lacuna or inaction further continues by not presenting officer of crime branch who investigated and completed the investigation. 7.1. It appears that the earliest version before the Medical Officer as reflected in case paper Exh. 47 clearly suggests that the burns were received by an act of suicide. The emphasis on words "homicidal burns" without examining the Doctor who recorded the history in the Case Paper is totally unwarranted more particularly even in the case of Vimlaben, the Doctor used the same words "homicidal burns" in her Case Paper. Thus, the earliest history before the Medical Officer coupled with the evidence of Vimlaben clearly revealed that the deceased had sustained suicidal burns. That Yadi/information Exh. 24 given by police also mentioned burn injuries received at the residence of the injured. 7.2. The prosecution failed to examine the Panch witnesses to prove the Panchnama of the scene of offence. The forwarding letter [Exh. 40 - page 183] refers to the articles seized from the scene of offence, namely house of the deceased and outside, [i] The Investigating Officer had seized 5 burnt matchsticks from the top at the place of offence as well as one matchbox; [ii] The Police Officer had also attached one steel utensil [Lotta] as well as one iron tin. Thus, the find of 5 burnt matchsticks from top assumes great importance. Thus, by not proving contents of Panchnama of the scene of offence, and not explaining find of burnt 5 matchsticks from the top, the version put forward by the deceased sounds highly unnatural more particularly when the deceased under normal circumstances would have been highly enraged to find his wife in compromising position with the accused and though allegedly accused sprinkled kerosene, the deceased not reacted at all and allowed the accused to light matchsticks. The conduct of the deceased sounds highly unnatural when such an act is attributed. It is also highly unnatural that deceased would allow the accused to take out kerosene from a stove in a steel vessel [Lotta] and sprinkle the same on the accused. The conduct of the deceased sounds highly unnatural when such an act is attributed. It is also highly unnatural that deceased would allow the accused to take out kerosene from a stove in a steel vessel [Lotta] and sprinkle the same on the accused. Under normal circumstances, the accused would immediately run away from that place if he was caught in such an illicit act of sexual relation and having been noticed by the deceased husband of Vimlaben. 7.3. The dying declaration Exh. 25 refers to the sprinkling of kerosene from a tumbler and putting him on flames by lighting matchstick. However, the version put forward by deceased in FIR [Exh. 31 - page 149] clearly reflect totally unnatural version. According to the deceased, the accused had gone to the residence of the deceased at about 3:00 p.m. and he had gone to bring tea for the accused at the nearby tea stall of one Darbar and at that time accused stayed in the room of the deceased, where wife of the deceased and his young son were present. It is claimed by the deceased that thereafter he returned and found accused and Vimlaben having sexual intercourse. It is claimed that on seeing this, accused picked up the kerosene tin and sprinkled the same from the tin and thereafter applied the lighted matchstick. It is also stated by the deceased in complaint that thereafter his wife intervened to save and she sustained burns on back portion and thereafter accused had run away. Thus, the version of sprinkling of kerosene from tin is totally destroyed by the find of steel utensil [Lotta] which contained kerosene. Similarly, the earth from 2 places recovered also showed presence of kerosenes. Thus, the facts noticed at the scene of offence is not coinciding with the contents of dying declarations. 7.4. A perusal of post-mortem report would reveal that burn injuries over person of the deceased and cause of death due to shock of burns subject to receiving of chemical analysis, but report of viscera and blood, finally confirm the same reasonings. The contention of learned Counsel for the appellant about possibility of suicidal death gets support from deposition of the prosecution witnesses i.e. Investigating Officer initially, who had recorded statement of neighbors, who reached at the scene of offence removed cloths of deceased, dying declaration Exh. The contention of learned Counsel for the appellant about possibility of suicidal death gets support from deposition of the prosecution witnesses i.e. Investigating Officer initially, who had recorded statement of neighbors, who reached at the scene of offence removed cloths of deceased, dying declaration Exh. 25 refers to sprinkling of kerosene from a tumbler and setting ablaze by lighting match stick, do not get any support in view of 'Lotta', which was sent for FSL contained remnant of kerosene but no tumbler was found. On the contrary, 5 [five] match sticks which were burnt from the top only reveal that deceased in fact made an attempt to threaten his wife to commit suicide, otherwise had it been a case as stated by the prosecution, the time taken for burning 5 match sticks with some interval would certainly give an opportunity to the deceased either to resist such an attempt by the accused in his defence, as a part of protest or to escape so as to save his life. None of the above things has taken place. We are not only in the realm of probabilities, but the above fact and reasoning gets support from the deposition of Vimlaben though declared hostile permitted to be cross-examined by learned Sessions Judge. 7.5. Learned Sessions Judge no doubt partly agreed and accepted the submissions made by the defence, as reflected in para 14 of the judgment and declaration of law with regard to dying declaration in para 15 of the judgment, but guilt of the accused is solely believed on the presumption and truthfulness and creditworthiness of dying declaration, which cannot form the basis for conviction in absence of any corroborative piece of evidence. Thus, we are convinced that conviction and sentence of the appellant accused is a case of misapplication of principles of Section 32 of the Evidence Act. 8. The Constitutional Bench of the Apex Court in the case of Laxman v. State of Maharashtra reported in 2002 (5) SLT 49: III (2002) CCR 247 (SC) : (2002) 6 SCC 716, considered about the duty of the Court to decide that the declarant was in a fit state of mind to make the declaration but where the eye-witnesses' evidence viz. of the Magistrate, who had recorded the dying declaration to that effect is available, mere absence of doctor's certification as to the fitness of the declarant's state of mind would not ipso facto render the dying declaration unacceptable. However, the Apex Court further held that the evidentiary value of such dying declaration would depend on the facts and circumstances of a particular case. The Apex Court further held that if the dying declaration is of such a nature as to inspire full confidence of the Court in its truthfulness and correctness and in deposition the Executive Magistrate reiterate and depose about his satisfaction about fitness of state of mind of the declarant, even without examination by the doctor, the declaration can be acted upon provided the Court ultimately holds the same to be voluntary and truthful. While declaring the law, as above, the Apex Court has kept in mind the juristic theory regarding acceptability of a dying declaration, as born out from Section 32 of the Indian Evidence Act. Further, the Apex Court considered two earlier decisions; [i] Paparambaka Rosamma v. State of A.P., reported in 1999(7) SLT 417 : III (1999) CCR 232 (SC) : (1999) 7 SCC 695 ; and [ii] Koli Chunilal Savji v. State of Gujarat reported in 1999(8) SLT 253 : IV (1999) CCR 74 (SC) : (1999) 9 SCC 562 , about necessity of a certificate of the doctor, who examined the declarant about his fitness of state of mind vis-a-vis consequence of not examining. The ultimate test is whether the dying declaration can be held to be a truthful one and voluntarily given, if the Executive Magistrate, who recorded the dying declaration deposes about fitness of state of mind of the declarant, in the absence of medical certification of such condition of state of mind of the declarant, the Apex Court confirmed the law laid down in the case of Koli Chunilal Savji [supra]. The Apex Court in Para 3 of the above judgment kept the juristic theory of acceptability of a dying declaration in the context of Section 32 of the Indian Evidence Act. Para 3 of the above judgment, reads as under: "3. The Apex Court in Para 3 of the above judgment kept the juristic theory of acceptability of a dying declaration in the context of Section 32 of the Indian Evidence Act. Para 3 of the above judgment, reads as under: "3. The juristic theory regarding acceptability of a dying declaration is that such declaration is made in extremity, when the party is all the point of death and when every hope of this world is gone, when every motive to falsehood is silenced, and the man is induced by the most powerful consideration to speak only the truth. Notwithstanding the same, great caution must be exercised in considering the weight to be given to this species of evidence on account of the existence of many circumstances which may affect their truth. The situation in which a man is on the deathbed is so solemn and serene, is the reason in law to accept the veracity of his statement. It is for this reason the requirements of oath and cross-examination are dispensed with. Since the accused has no power of cross-examination, the Courts insist that the dying declaration should be of such a nature as to inspire full confidence of the Court in its truthfulness and correctness. The Court, however, has always to be on guard to see that the statement of the deceased was not as a result of either tutoring or prompting or a product of imagination. The Court also must further decide that the deceased was in a fit state of mind and had the opportunity to observe and identify the assailant. Normally, therefore, the Court in order to satisfy whether the deceased was in a fit mental condition to make the dying declaration looks up to the medical opinion. But where the eye-witnesses state that the deceased was in a fit and conscious state to make the declaration, the medical opinion will not prevail, nor can it be said that since there is no certification of the doctor as to the fitness of the mind of the declarant, the dying declaration is not acceptable. A dying declaration can be oral or in writing and any adequate method of communication whether by words or by signs or otherwise will suffice provided the indication is positive and definite. A dying declaration can be oral or in writing and any adequate method of communication whether by words or by signs or otherwise will suffice provided the indication is positive and definite. In most cases, however, such statements are made orally before death ensues and is reduced to writing by someone like a Magistrate or a doctor or a police officer. When it is recorded, no oath is necessary nor is the presence of a Magistrate absolutely necessary, although to assure authenticity it is usual to call a Magistrate, if available for recording the statement of a man about to die. There is no requirement of law that a dying declaration must necessarily be made to a Magistrate and when such statement is recorded by a Magistrate there is no specified statutory form for such recording. Consequently, what evidential value or weight has to be attached to such statement necessarily depends on the facts and circumstances of each particular case. What is essentially required is that the person who records a dying declaration must be satisfied that the deceased was in a fit state of mind. Where it is proved by the testimony of the Magistrate that the declarant was fit to make the statement even without examination by the doctor the declaration can be acted upon provided the Court ultimately holds the same to be voluntary and truthful. A certification by the doctor is essentially a rule of caution and therefore the voluntary and truthful nature of the declaration can be established otherwise." Thus, the dying declaration of declarant-deceased in the present case, is neither truthful nor correct much less inspires any confidence though deposed by Executive Magistrate about a fitness of state of mind of the declarant, if considered along with attending circumstances and nature of overall evidence surfaces on record, sole reliance cannot be placed to establish guilt of the accused. Accordingly, we are of the view that the conviction and sentence, recorded by the learned Judge deserves to be quashed and set aside. In view of the above discussion, this appeal succeeds and the conviction and sentence recorded by the learned Additional Sessions Judge, City Sessions Court No. 9, Ahmedabad by judgment and order dated 10th August, 1999 rendered in Sessions Case No. 83 of 1995 convicting and sentencing appellant-accused is set aside. In view of the above discussion, this appeal succeeds and the conviction and sentence recorded by the learned Additional Sessions Judge, City Sessions Court No. 9, Ahmedabad by judgment and order dated 10th August, 1999 rendered in Sessions Case No. 83 of 1995 convicting and sentencing appellant-accused is set aside. The appellant accused is set at liberty forthwith, if he is not required in any other case. His bail bonds stand cancelled. Fine paid, if any, by the accused is ordered to be refunded to him. R & P be sent back to the trial Court forthwith.